What subjects are an employer and a union prohibited from negotiating?

Author: Irene Stavrellis Englert, Englert Legal Consulting, LLC

An employer and a union are prohibited from negotiating terms that would violate the National Labor Relations Act. For example, a "closed shop" provision, which requires an employee to be a member of the union before being hired, is an illegal subject of bargaining. Other illegal subjects of bargaining include the following:

  • Union shop clauses (illegal in Right to Work states) - requires employees to join the union within a specified time after hiring and to maintain union membership in good standing.
  • Hot cargo clauses - prohibits an employer from conducting business with another employer with whom the union has or may have a dispute.

Additionally, clauses that discriminate against individuals on the basis of race, sex, religion, disability or any other category protected by law is illegal and cannot be a subject of bargaining.

Note that any agreement on an illegal subject of bargaining will be unenforceable and likely to result in an unfair labor practice charge or litigation.