An Unnecessary Burden: How the NLRB’s “Decisional Bargaining” Doctrine Has Ignored Section 8(d)

The National Labor Relations Board's decisional bargaining doctrine, as it has evolved over the years, requires employers to bargain over the decision to transfer work out of the bargaining unit-such as through subcontracting or assigning the work to other plants-if it is theoretically possible that the union could make concessions sufficient to offset the economic benefits of the transfer. In applying this doctrine to employers who transfer work during the term of a collective bargaining agreement, the NLRB contravenes the plain language of Section 8(d) of the National Labor Relations Act (NLRA) by requiring employers to afford unions the opportunity to offer concessions, even where the necessary concessions could only be made by modifying provisions in a current collective bargaining agreement. The NLRB's doctrine ignores the specific holding of one decades-old U.S. Supreme Court decision and the rationale of a more recent court decision. The new members of the NLRB should correct this error.

The full text of this article is published in the Employee Relations Law Journal, Summer, 2003 issue.