NLRB: Employers Can’t Have It Both Ways; You’re Either Union or Not

A construction company had a Section 8(a) collective bargaining agreement with the Carpenters union. Section 8(a) contracts are unique to the construction industry and allow employers to walk away from the contract when it expires. This particular contract was for three years and automatically renewed at the end of its term for another three years unless the employer informed the union, in writing, at least four months before the expiration date that the employer was terminating the agreement. A few dates are critical to this case:

  • October 18, 2011: Company sent a letter to the Union terminating the agreement
  • October 25, 2011: Union said the letter is ineffective because it was not send at least four months before the contract expired
  • February 10, 2012: Contract expiration date
  • April 3, 2012: Company invoked the agreement’s grievance procedure to compel arbitration of court claims filed by the Union for missed dues and fringe benefit payments
  • October 22, 2012: Court granted the Company’s motion to compel arbitration
  • March 23, 2015: Company did not respond to an information request by the Union
  • April 15, 2015: Union filed an unfair labor practice charge over the Company’s refusal to respond to the information request
  • April 25, 2015: Company argued that the unfair labor practice charge was untimely pursuant to Section 10(b) statute of limitations

Case law is clear: to avoid a Section 10(b) statute of limitations claim, the National Labor Relations Act requires a party to file an unfair labor practice charge within six months of the receipt of clear and unequivocal notice of total contract repudiation.

The National Labor Relations Board did not believe that the October 2011 letter terminated the contract because the Company acted inconsistently with the intent to terminate the contract when it filed a motion to compel the union to arbitrate claims in federal court. By invoking arbitration under the contract, it purportedly repudiated months earlier, the Company sent a “conflicting signal” concerning its position on the continuing validity of the contract.

I thought this was a pretty straight forward case. But, initially the administrative law judge found in favor of the Company as did Member Miscimarra in his dissent. Per Miscimarra’s dissent, the Company repudiated the contract and was not obligated to respond to the union’s request for information. Miscimarra found that the Union had clear and unequivocal notice of the Company’s repudiation no later than October 2011. To him, even if the Company’s conduct after a clear and unequivocal repudiation constituted a “conflicting signal” and prevents the six-month Section 10(b) period from running from the date of the repudiation, it was unfair and contrary to sound labor policy to treat the employer’s motion to compel arbitration such as a “conflicting signal.” You go Member Miscimarra!

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Companies Must Deduct Union Dues After Contracts Expire

Dues deduction became a common practice in the mid-1900’s when few workers had checking accounts. Unions tired of going to each member individually to collect dues, so they negotiated into collective bargaining agreements clauses forcing the employer to payroll deduct the dues and remit a single check to the union for all members’ dues. Companies were relieved of this “tax collector” role upon the expiration of the collective bargaining agreement.

However, last year the NLRB changed the law on when companies can stop deducting union dues after a collective bargaining agreement expires. There is little practical reason for this rule since nothing prevents employees from paying their dues directly to the union. In fact, employees were still required to remit dues, companies just weren’t required to deduct them from employees’ paychecks. Nonetheless, the NLRB said that it was issuing the ruling because it would help the “goal of promoting collective bargaining.”

Now, businesses may stop deducting dues only after a lawful impasse has been reached. Lawful impasses are reached only after the NLRB agrees it has been reached. Yet, employees are allowed to strike immediately upon the expiration of the contract. Therefore, companies that are negotiating a new collective bargaining agreement may be faced with a situation where they bankroll a strike against themselves. How exactly does that further the goal of promoting collective bargaining?

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.

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.