A Little More Info on Collective Bargaining

by Kevin L. Davis (@EsquireSports)

In my last article I claimed the the Players may have a valid claim that the Owners have acted in bad faith during the negotiating process based on the tactics they have used against the Players while not elaborating on why. Here is a little information explaining the laws as it relates to collective bargaining which may shed a little light on why I made that claim >>>> http://legal-dictionary.thefreedictionary.com/collective+bargaining

• 1) The employer may not refuse to bargain over certain subjects with the employees' representative, provided that the employees' representative has majority support in the bargaining unit. 
• 2) Those certain subjects, called mandatory subjects of bargaining, include wages, hours, and other terms and conditions of employment. 
• 3) The employer and the union are not required to reach agreement but must bargain in Good Faith over mandatory subjects of bargaining until they reach an impasse. 
• 4) While a valid collective bargaining agreement is in effect, and while the parties are bargaining but have not yet reached an impasse, the employer may not unilaterally change a term of employment that is a mandatory subject of bargaining. But once the parties have reached an impasse, the employer may unilaterally implement its proposed changes, provided that it had previously offered the changes to the union for consideration. 

Duty to Bargain in Good Faith

During the bargaining process, the parties are not required by law to reach agreement. They must, however, bargain in good faith (29 U.S.C.A. § 158[d]). Although good faith is a somewhat subjective concept, courts will look to the entire circumstances surrounding bargaining, including behavior away from the bargaining table such as pressure and threats (NLRB v. Billion Motors, 700 F.2d 454 [8th Cir. 1983]).

What this means in the context of the NBA's Labor Dispute?

The Players have felt all along that the Owners have been making attempts at breaking their Union and made offers so bad that no reasonable union could be expected to take it. The offers have definitely been underwhelming, and if the reported comment attributed to David Stern that "he knows where the bodies are buried because he put them there, is true that definitely sounds threatening.

I'm not guaranteeing a legal win, but it definitely sounds like the Players may have a leg to stand on.