Contractor that Thought it was Out of a Multi-Employer Bargaining Unit made Unlawful Workplace Changes

A marble contactor dropped out of a multi-employer bargaining unit and informed the union it would be terminating an existing CBA when it expired. The company also informed the workers it would implement new employment policies like modifications to wages and health insurance, stopping contributions to the union’s pension plan, as well as implementing flexible spending accounts, profit sharing, and a 401k plan.

In response, the workers held a union representation election and voted the union in. The company refused to bargain with the union, and the NLRB ruled that the Company’s refusal was a violation of the National Labor Relations Act. Undeterred, the Company followed through with the previously announced changes believing that it no longer had a duty to bargain under the previous CBA. But, the NLRB held that the Company was still obligated to bargain with the union and violated the Act by making unilateral changes after the CBA expired. The Board then ordered the Company to rescind the changes and rehire the laid off employees. 

In Member Miscimarra’s dissent, he said that the Company’s move to implement changes that had been announced before the union election was held was legal. “Board case law is crystal clear that this action was lawful. An employer does not violate the NLRA when, after a union is elected, its implements a term or condition of employment decided on before the election,” he said. Miscimarra also noted that under the majority’s decision, a company in Ardit’s situation would be caught between a rock and a hard place since none of the employer’s options would have been legal under the majority’s framework.

The respondent had three options: (1) it could implement the terms it had previously announced; (ii) it could refrain from implementing those terms or (iii) it could give the union notice and opportunity to bargain. Under any fair system of law, one of these options must be lawful. Under the majority’s decision here, all three options are unlawful.

Miscimarra also concluded that Ardit’s layoffs were similarly lawful because the company had no work for the workers to perform.

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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