Amid the noise of the National Labor Relations Board’s new representation case rules, which became effective on April 14, 2015, the Board, without any fanfare, has begun issuing a new document, entitled “Notice of Bargaining Obligation,” as a companion piece accompanying the “Certification of Representative” the Board issues after a union prevails in a representation election.
The new one-page document purports to explain to a union and an employer the employer’s collective bargaining obligations after the employer has lost an NLRB-conducted representation election. Rife with legalese, it covers the full gamut of possibilities.
Here, in full, is what the document says:
“In the recent representation election, a labor organization received a majority of the valid votes cast. Except in unusual circumstances, unless the results of the election are subsequently set aside in a post-election proceeding, the employer’s legal obligation to refrain from unilaterally changing bargaining unit employees’ terms and conditions of employment begins on the date of the election.
“The employer is not precluded from changing bargaining unit employees’ terms and conditions during the pendency of post-election proceedings, as long as the employer (a) gives sufficient notice to the labor organization concerning the proposed change(s); (b) negotiates in good faith with the labor organization, upon request; and (c) good faith bargaining between the employer and the labor organization leads to agreement or overall lawful impasse.
“This is so even if the employer, or some other party, files objections to the election pursuant to Section 102.69 of the Rules and Regulations of the National Labor Relations Board (the Board). If the objections are later overruled and the labor organization is certified as the employees’ collective-bargaining representative, the employer’s obligation to refrain from making unilateral changes to bargaining unit employees’ terms and conditions of employment begins on the date of the election, not on the date of the subsequent decision by the Board or court. Specifically, the Board has held that, absent exceptional circumstances, (footnote omitted) an employer acts at its peril in making changes in wages, hours, or other terms and conditions of employment during the period while objections are pending and the final determination about certification of the labor organization has not yet been made.
“It is important that all parties be aware of the potential liabilities if the employer unilaterally alters bargaining unit employees’ terms and conditions of employment during the pendency of post-election proceedings. Thus, typically, if an employer makes post-election changes in employees’ wages, hours, or other terms and conditions of employment without notice to or consultation with the labor organization that is ultimately certified as the employees’ collective-bargaining representative, it violates Section 8(a)(1) and (5) of the. National Labor Relations Act since such changes have the effect of undermining the labor organization’s status as the statutory representative of the employees. This is so even if the changes were motivated by sound business considerations and not for the purpose of undermining the labor organization. As a remedy, the employer could be required to: 1) restore the status quo ante; 2) bargain, upon request, with the labor organization with respect to these changes; and 3) compensate employees, with interest, for monetary losses resulting from the unilateral implementation of these changes, until the employer bargains in good faith with the labor organization, upon request, or bargains to overall lawful impasse.”
This new document appears to be the latest Board move to increase its visibility by being pro-active — in this case, by counseling unions that they have the right to file unfair labor practice charges against employers that engage in any of the prohibited conduct described in the Notice. Here are highlights of the Board’s efforts:
- In 2012, the Board launched a webpage devoted to protected concerted activity. NLRB Chairman Mark Gaston Pearce noted at the time, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act. . . . Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.” (This followed the rejection earlier that year by a federal appeals court in Washington of another attempt by the Board — the NLRB’s 2011 workplace poster regulations. The NLRB asserted the poster was necessary because of the public’s lack of knowledge and understanding of the NLRA.)
- In 2013, the Agency began making available to the public a mobile app, and shortly thereafter debuted its protected concerted activity webpage, informing employees that “[e]mployees have the right to act together for their mutual aid and protection, even if they are not in a union.”
- Earlier this year, the NLRB began tweeting exhortations tonon-union employees to utilize the Agency’s services and notifications about the broad jurisdictional reach of the NLRA.
The Notice of Bargaining Obligation underscores the multi-faceted nature of and pitfalls associated with an employer’s bargaining obligation after the employer loses an NLRB election. Non-union employers wishing to remain union-free, and therefore, avoid a complicated bargaining obligation, should implement a preventive plan today. (See our article, Preparing for Labor Board’s Quickie Election Rule, for an example of such a plan.) Newly unionized employers should consult labor counsel before making any changes to employees’ terms and conditions of employment or entering into collective bargaining with their employees’ newly certified union.