As America approaches the 91st anniversary of President Roosevelt signing the National Labor Relations Act (“NLRA”) into law, potentially massive changes to the collective bargaining process may be coming. For nearly 91 years the federal government has resisted putting hard deadlines on employers and labor unions to reach a collective bargaining agreement. Rather, under Section 8(d), 8(a)(5) and 8(b)(3) of the NLRA, parties must bargain in good faith and “meet at reasonable times and reasonable intervals.” Likewise, the National Labor Relations Board (“NLRB”) typically does not and cannot “force” employers or labor unions to agree to any substantive proposal that the other party submits during collective bargaining. This “reasonableness” legal standard affords parties considerable leeway to conduct collective bargaining. Indeed, sometimes parties can go years without reaching a collective bargaining agreement. Some parties never reach a collective bargaining agreement.
Labor unions attacked this standard for decades in pursuit of additional government guardrails on collective bargaining. For example, Democratic Congressman George Miller proposed the Employee Free Choice Act of 2007. The law proposed that, if bargaining was unsuccessful for 90 days, either party could request mediation. And if mediation was unsuccessful, the contract dispute would proceed to binding arbitration. The 2007 law passed the House of Representatives, but did not become law. In 2016, Democratic...
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