NLRB Requires Company to Continue Annual Wage Increases After Contract Expiration

A hospital and a union recently allowed their collective bargaining agreement to expire. One provision in the CBA provided that “for the duration of this Agreement, the Hospital will adjust the pay of Nurses on his/her anniversary date” in the amount of 3%. Despite the expiration of the agreement, the Board found that the hospital was required to continue providing the wage increases.

The Board explained that the language of the CBA did not establish a “clear and unmistakable waiver of the Union’s statutory right to bargain over the post-termination cessation of pay raises.” Companies have a statutory duty to maintain the status quo post-contract expiration. An employer cannot make a unilateral change of the term established in a CBA unless the contract term has a clear and unmistakable waiver of the union’s statutory right to maintenance of the status quo.

Despite the contract specifically stating that the wages were applicable for the duration of the agreement, the Board found that this was not enough to waive the union’s right to the status quo. The Board reasoned that the contract provision did not address any post-expiration conduct of the employer. The lesson to be learned here is that companies need to include explicit language addressing their post-expiration conduct to ensure they will not be forced to continue increasing wages past the contract expiration date. Specifically, when it comes to wages, I insert a table into the union contract that delineates the hourly wage of each classification for each year of the contract. This has worked to stop the “percent raise into perpetuity” argument found in this case.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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