Subcontracting and the Duty to Bargain
36 Pages Posted: 17 Feb 2012
Date Written: January 1, 1990
The Supreme Court has decided that industrial practices are valuable guides for determining what is mandatory subject of bargaining. Building upon this foundation, this article maintains that actual industry practice reveals that subcontracting must be considered a mandatory subject of collective bargaining. Section I begins by explaining how the assumptions underlying collective bargaining and the intent behind the National Labor Relations Act require that subcontracting be considered a mandatory subject. A policy that isolates entrepreneurial discretion as a dominant concern for determining whether parties must bargain about subcontracting disregards the goals of national labor legislation. Section II outlines the cases which have shaped the current position regarding collective bargaining and explains why the pivotal concurring opinion by Justice Stewart in Fibreboard Paper Products Corp. v. NLRB should not have been followed in subsequent cases. Finally, Section III shows that many employers do bargain about subcontracting and that objections to mandatory bargaining can be overcome. Specific language from numerous collective bargaining agreements is provided to illustrate how various concerns can be resolved.
Keywords: Subcontract, bargaining, mandatory subject, employers, employees, national labor legislation
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