Common fodder for labor relations seminars is whether employers must bargain with a union over the employer’s discontinuance of providing workers with a Christmas ham (or my personal favorite, whether bargaining is required before changing the chips in a vending machine). Here, the issue was whether the employer’s change in a Christmas gift policy violated labor law, but there’s a twist, so keep reading…
The employer had a “Christmas Gifts” policy that covered “employees and retired employees” whereby employees would be eligible for a “Christmas gift” of a ham if the company deems so on a year to year basis.” The employer always included in the definition of “employee” those who were out on medical leave or workers compensation as eligible to receive the ham. The collective bargaining agreement also had a zipper clause which stated:
The parties acknowledge that during the negotiations which resulted in this Agreement, each had an unlimited right to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining. Except as provided below, they may therefore each voluntarily and unqualifiedly waive the right for the life of this Agreement to bargain collectively with respect to any matter referred to or covered in this Agreement or with respect to any subject or matter not specifically referred to or covered by this Agreement.
Pretty standard zipper (because it “zips up” the contract) clause language. But this particular zipper clause continued:
However, if the Company wishes to change an existing policy, create a new policy, or modify job performance standards that affect the bargaining unit, advance written notice will be provided to the Union via email. If the Union wishes to negotiate over the changes it will notify the Company in writing within ten (10) calendar days of the receipt of the notification. If the Union does not serve written notification of a desire to negotiate over the policy or policy change, the Company may implement the change and the Union waives any arbitration or other legal remedies concerning the creation of modification of the policy.
The Company sent the Union an email about changing the “Christmas Gifts” policy to include only active employees, and to exclude employees on leave. A copy of the changed policy was included with the email. The union did not respond to the employer and the new policy was implemented. Employees who did not receive the ham complained to the union and the union requested bargaining over the change. The Company refused to bargain citing the zipper clause.
The Administrative Law Judge opined how simple this case was: “the parties created and agreed to a specific procedure that applies when the employer wishes to change an existing policy.” The employer followed the agreed-upon procedure. On appeal, a three-member panel of the National Labor Relations Board upheld the ALJ’s decision without comment (the ultimate “why are we wasting our time with this” move).
So why was this case not quickly dismissed? The union failed to request bargaining within the agreed upon time frame and then immediately filed charges when it did not get its way. The union, arguably, violated its duty to bargain in good faith by filing Board charges despite the fact the language of the agreement said it waived “any legal remedies.” The employer followed the policy and the union didn’t. Despite the language of the zipper clause saying the union had waived all remedial rights by failing to respond to the email notice the NLRB General Counsel still pursued the case (on behalf of the union) through trial and appeal.
Unfortunately for employers, even with crystal clear language regarding notice and opportunity to bargain, and consequences for failing to respond, the NLRB may still carry the union’s bag and insist that such language doesn’t really mean what it says.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.