Articles Discussing Collective Bargaining.

An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018).

In the first test of the National Labor Relations Board’s 2011 “successor bar” rule, the federal appeals court in Boston has upheld the NLRB’s decision that the union is protected from decertification after a change of ownership at the unionized company for at least six months. National Labor Relations Board v. Lily Transp. Corp., No. 15-2398 (1st Cir. Mar. 31, 2017).

Prior to entering into a first contract, an employer has a statutory obligation to bargain with the union that represents its employees before imposing discretionary “serious discipline” (such as suspension, demotion, or discharge) on any of those employees, the National Labor Relations Board again has held. Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016).

A company’s requirement that new employees represented by a union sign a non-compete and confidentiality agreement (NCCA) as a condition of employment violated the National Labor Relations Act because the NCCA is a mandatory subject of bargaining that could not be unilaterally implemented, the NLRB has held. Minteq International, Inc., 364 NLRB No. 63 (July 29, 2016). However, contrary to its recent inclinations, the Board also found that an individual provisions of the NCCA – concerning confidential information – was lawful.

An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. The Ruprecht Co., Nos. 13-CA-155048, 13-CA-155049, 13-CA-156198 and 13-CA-158317, JD(NY)-14-16 (May 13, 2016).

Enforcing a National Labor Relations Board order, the federal appeals court in Chicago has held an employer unlawfully denied a union safety specialist access to its facility to examine the site of a fatal accident (the cause of which had not been determined) involving a bargaining unit employee. Caterpillar Inc. v. NLRB, No. 14-3528 (7th Cir. Oct. 2, 2015).

The D.C. Circuit recently enforced the National Labor Relations Board’s January 3, 2012 order holding that an automotive dealership had violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act by failing to bargain with the union about the effects of the relocation of a group of mechanics. Dodge of Naperville, Inc. and Burke Automotive Group, Inc., 357 NLRB No. 183 (D.C. Cir. Aug. 4, 2015). The ruling highlights the risks employers face by failing to engage in effects bargaining where required and by unlawfully withdrawing recognition from a union even if such withdrawal is simply “premature.”

An administrative law judge of the National Labor Relations Board has rejected the contention of the NLRB’s General Counsel that an employer bargained in bad faith by refusing to agree to the union’s “union security” (requiring all employees to join the union) and “dues checkoff” (requiring employees to have their union dues deducted from their paychecks) proposals during bargaining over an initial contract, despite failing to specifically explain to the union why. Apogee Retail, NY, LLC d/b/a Unique Thrift Store, JD (NY)-31-15 (July 30, 2015).

Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014) because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the period between the union’s certification or recognition and the parties’ first collective bargaining agreement, an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline. Kitsap Tenant Support Services, Inc., JD(SF)-29-15 (July 28, 2015)

In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc. violated the National Labor Relations Act by making unilateral changes to nurse training requirements and by setting preconditions to bargaining.

On March 28, 2013, the United States Court of Appeals for the Second Circuit issued a decision in SDBC Holdings Inc. f/k/a Stella D’oro Biscuit Co., Inc. v. NLRB which held that an employer is not obligated to provide a union with copies of a financial statement, unless, it takes the position during bargaining that it is unable to pay any increased wages. This ruling is highly critical of the reasoning used by the National Labor Relations Board (NLRB). It is an important decision for employers in this circuit on the subject of an employer’s duty to provide financial information and on the subject of impasse and implementation of the final offer.