When is effects bargaining required

Do not assume that a change you deem minor would be so viewed by the Board. Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business.

Whether a proposed change is a non-bargainable "scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a non-bargainable "scope and direction" change.

Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring if you are a Burns successor. See NLRB v. Burns International Security Services, U. You are a Burns successor if you hire the majority of your employees from the predecessor's workforce, and from their perspective day-to-day life at work remains largely unchanged.

You may, however, before hiring your workforce, set initial terms and conditions of employment without bargaining with the union, unless you are a "perfectly clear" Burns successor. See below. Set initial terms and conditions of employment before bargaining with the union if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.

Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring, if you refuse to hire the predecessor's employees because they are unionized.

In other words, if you discriminate in hiring to avoid becoming a Burns successor, you become a Burns successor - and a "perfectly clear" one at that. Set initial terms and conditions of employment before bargaining with the union, if you acquire a business and refuse to hire employees of the predecessor to avoid becoming a Burns successor.

Set initial terms and conditions of employment before bargaining with the union, if you are a Burns successor and you tell your employees that you will not permit them to be represented by the union. Evade your bargaining or contractual duties under the Act by transferring operations to a nominally different business entity that is merely the disguised continuance or "alter ego" of your former unionized business. Bypass the union and deal directly with employees.

However, you may communicate to your employees accurate information about your bargaining proposals. Refuse to furnish, or unreasonably delay in furnishing, information the union requests that is relevant to and reasonably necessary for the performance of its representative functions, with certain exceptions.

Insist to impasse on a proposal concerning a permissive subject of bargaining, or require agreement on a permissive subject as a precondition to further bargaining. Permissive subjects include, for example, unit scope, selection of a bargaining representative, internal union affairs, and settlement of unfair labor practice charges. Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.

Lock out employees in support of an impermissible objective - e. Lock out employees to pressure the union to consent to a midterm contract modification. Lock out employees over a permissive subject of bargaining. Lock out employees without clearly informing them of the conditions they must meet to be reinstated.

Declare impasse and refuse to bargain where a valid impasse has not been reached. RBE Electronics of S. At one end of the spectrum, where an employer experienced acute financial difficulties that had been building over time the Board held that the duty to bargain over the layoffs was not excused.

Thus, in Hankins Lumber Co. The distinction between the duty to bargain over the decision to lay off and its effects has been emphasized in cases involving public emergencies. The same holds true in situations where the economic exigency is specific to the employer, e. See Cyclone Fence, Inc. The rationale of these cases is that even if exigent economic circumstances compel lay-offs or other unilateral action, the obligation to engage in effects bargaining is not extinguished.

In Virginia Mason Hospital , NLRB , the hospital implemented a policy requiring both union and non-union nurses who had not received a flu shot to either take antiviral medication or wear a protective mask.

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