There are several reasons why a company can lawfully refuse to bargain with a union.
When unions file unfair labor practice charges against companies for refusing to bargain, the NLRB can seek an injunction in federal district court to force the company to bargain during the investigation of the unfair labor practice charge.
Injunctions can be used in discipline, termination, and other charges, too.
This puts the cart before the horse, in my opinion. It forces a company to bargain while determining whether the company must bargain.
And companies must bargain in good faith which includes turning over documents and information that unions are not entitled to have unless they are engaged in bargaining.
To succeed on getting the injunction, the NLRB must prove two things:
* Likelihood of success on the unfair labor practice charge; and
* The union will face irreparable harm if an injunction is not ordered.
This is a high hurdle to meet. And federal district courts don’t always get it right.
For example, one judge recently found likelihood of success on the merits and then assumed that the union would face irreparable harm if the parties did not immediately start to bargain.
You know what happens when you assume….
On appeal, the Ninth Circuit held that the NLRB did not prove irreparable harm.
Did the company bargain while the case was appealed from the District court to the Circuit court? Did the union get information and documents it wasn’t entitled to receive?
While seeking an injunction is not common, if done, it can be a powerful tool against companies.
The NLRB is increasingly using injunctions when investigating charges. The increase looks like this:
2020 – 8 times
2021 – 14 times
2022 – 21 times
This case is an important reminder for companies facing unfair labor practice charges. Take the time necessary in your position statements to fully flush out why a 10(j) injunction is not necessary.
Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.
Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at Matt@MattAustinLaborLaw.com.