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Extra info for Labor Law, Industrial Relations, and Employee Choice: The State of the Workplace in the 1990s : Hearings of the Commission on the Future of Worker-Management Relations, 1993-94

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14 The message from Taft-Hartley is that the obligation to bargain was to be primarily procedural. The parties were obligated to meet and to discuss terms and conditions of employment, but neither side was obligated to agree to anything.  . the nature of the duty to bargain in good faith thus imposed on employers by (Section) (8)(5) was not sweepingly conceived. ' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.  .  . But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.

This is precisely what has happened consistently since 1942. 13 Employers' Duty to Bargain The Wagner Act made it an unfair labor practice for an employer to refuse to bargain with the representative of its employees, which the Board interpreted as an obligation to bargain in good faith. This obligation was a derivative of the employees' right to choose unionization. This right would be of little value if there were no corresponding obligation on the part of the employer to honor that choice. " Taft-Hartley, however, added some meat to one sentence in the Wagner Act.

Over a period of almost thirty years, from 1964 to 1993, the Board and the courts, including the Supreme Court on two separate occasions, resolved the issue. The Board, relying on a 1981 Supreme Court decision in First National Maintenance, accepted the principle that decisions representing a basic change in the nature of the business were not mandatory subjects of bargaining. In general, an employer must bargain over a work relocation or capital investment decision only if there is no basic change in the nature of the business and if labor costs are such an important factor in the decision that it is possible that the union could have offered sufficient concessions to change the decision.

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Labor Law, Industrial Relations, and Employee Choice: The State of the Workplace in the 1990s : Hearings of the Commission on the Future of Worker-Management Relations, 1993-94 by Richard N. Block


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