This blog post is a summary of Part 2 of our recent webinar series, “Becoming Unionized." We explored what happens after employees vote to unionize and the complex realities employers and employees face as they enter negotiations for their first collective bargaining agreement (CBA). Go here for a summary of Part 1.
The Road to Bargaining: From Union Certification to the Status Quo Period
Before bargaining begins, a union must first be officially recognized or certified as the exclusive representative of a group of employees known as the “bargaining unit.” A union may be certified after establishing majority support through a secret ballot election, or it may be voluntarily recognized by an employer after presenting the employer with evidence of majority support. Once certified, the "status quo period" begins—a critical window in which employers are legally obligated to maintain the existing terms and conditions of employment until an initial CBA is finalized.
During this status quo period, employers generally cannot make any material changes to wages, benefits, hours, or working conditions without first notifying the union and giving them a chance to bargain about the proposed changes. This includes things like compensation, benefits, leave entitlements and nearly all workplace rules and policies.
Any aspect of the employment relationship which falls under the National Labor Relations Act’s (NLRA) broad statutory language, “wages, hours, and other terms and conditions of employment,” are classified as mandatory subjects of bargaining, and failing to bargain over changes to these mandatory subjects may the NLRA and can expose employers to unfair labor practice charges.
What Constitutes a Material Change?
A key question is what qualifies as a “material” change. The National Labor Relations Board (NLRB) interprets materiality broadly. Even well-intentioned changes—such as switching to a new health insurance provider that offers better coverage and lower premiums—can trigger a duty to bargain if the change alters plan design, deductibles, or provider networks.
Seemingly minor adjustments, or changes that could potentially benefit employees in some way, must be viewed holistically. If there’s any potential impact to employees’ benefit entitlements, how employees access benefits, or the coverage of those benefits, employers should anticipate that a bargaining obligation may arise.
Common Pitfalls: Annual Wage Increases and PEO Complications
Recurring events like open enrollment or annual raises are especially tricky. Even if these events have occurred consistently in the past, employers may still need to bargain unless there’s a clear past practice that removes discretion from the employer. If an employer exercises discretion in determining the scope of an annual change necessitated by a recurring event, it typically must bargain with the union before that change may be implemented.
This is even more complicated for companies using a Professional Employer Organization (PEO). An employer’s bargaining obligation imposed by the NLRA does not extend to PEOs. Thus, if a PEO notifies an employer of its intent to change something, e.g., a benefit offer, a plan design, a plan administrator, etc., the responsibility to bargain about that change remains with the employer if the change affects bargaining unit employees. Timing is critical in these situations as PEOs have no obligation to delay their scheduled changes until an employer reaches an agreement with the union, and unions may use this leverage during early negotiations.
Planning Ahead: Why Pre-Union Preparation Matters
One key takeaway from the webinar is the importance of proactive preparation. Once a petition for election is filed or a request for voluntary recognition is made, making changes to any terms and conditions of employment—even seemingly minor changes for clarity—can be risky. Internal organizational documents often have implications on the terms and conditions of employees. That’s why organizations should review job descriptions, organizational charts, reporting structures, and assigned duties before any union activity begins.
This also helps clarify which roles must be excluded from the bargaining unit, such as supervisory or confidential employees. Federal labor law uses strict criteria to determine supervisory status—not just who has direct reports, but who possesses the authority to engage in specific supervisory functions (for example, hire, discipline, and/or promote) or the authority to effectively recommend such actions using independent judgment. Likewise, confidential employees are defined by having access to labor-specific confidential information like bargaining or labor relations strategy—not merely those who have access to generally confidential or non-public information.
Starting Negotiations: What to Expect from First-Time Bargaining
Negotiating the first CBA is a lengthy, complex process. On average, it takes 12 to 18 months, and in some cases, more than 500 days. This delay stems from several factors:
- The union must be certified before bargaining starts.
- The union must organize internally, selecting a bargaining committee and gathering input from employees all before preparing its strategy and proposals.
- Scheduling conflicts are common among legal counsel, internal HR teams, union reps, and employee negotiators.
Both sides typically form bargaining committees, and sessions consist of a series of proposals, questions, caucuses, and counterproposals. While some sessions are formal, others may involve small group discussions or informal problem-solving.
Topics at the Table: Mandatory, Permissive, and Illegal Subjects
The topics covered in bargaining vary, but most discussions revolve around mandatory subjects like wages, hours, and working conditions. While many mandatory subjects of bargaining already exist in non-union workplaces, there are some CBA provisions that will be new to previously non-union employers, including:
- Union Security & Dues Checkoff: A provision that dictates whether union membership is mandatory as a condition of employment and sets up payroll deductions for the payment of union dues.
- Grievance and Arbitration: Outlines a dispute resolution procedure disputes over the interpretation and administration of a CBA typically culminating in binding arbitration.
- Management Rights: Reserves certain unilateral decision-making authority to the employer. To be effective, these provisions need to be detailed and explicit. Under the current federal labor law standard, a broad reservation of unenumerated rights will not be sufficient to establish the right to take unilateral action.
- No Strike / No Lockout: Commits both parties to labor peace during the contract term. For employers, this is one of the most valuable provisions of a CBA.
Permissive subjects (e.g., the scope of a bargaining unit, internal union matters , and the format of bargaining) may also be raised, but neither side can insist on including them. Illegal subjects—such as discriminatory policies—cannot be bargained under any circumstances.
What Happens at Impasse?
If both sides reach a point where no further movement is possible—known as impasse—an employer may implement its last, best, and final offer. However, this is an extremely high-risk move. The impasse must be legitimate, built on good-faith bargaining, and free from any unfair labor practices. Otherwise, unilateral action including the implementation of the last, best, and final offer will be ruled unlawful by the NLRB.
Because of the legal risk and potential employee backlash, impasse should not be viewed as the desired outcome at the start of bargaining.
After the Contract is Signed
Once a CBA is finalized, it governs the employment relationship for a set term—typically 3 to 5 years in most industries. The agreement includes mechanisms for addressing future changes and outlines when and how bargaining will occur over matters not covered by the CBA. However, silence in the contract doesn’t equal a waiver of the union’s rights. Unless the CBA includes a clear and unmistakable waiver, employers still need to bargain changes hence why a strong and detailed management rights provision is so critical
Successor contracts (those that follow the first CBA) generally take less time to negotiate, but the timeline depends on the parties’ relationship and how complex the issues are.
Final Thoughts: Preparation = Stability
The unionization journey doesn’t end with a vote. For most employers, the hard part begins during the status quo period and continues through first-time bargaining. Maintaining compliance, avoiding legal risks, and preserving workplace morale all depend on advance preparation and experienced guidance.
Employers who invest in training, assess their structures proactively, and understand their obligations under the NLRA will be better equipped to navigate this critical stage.
