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).

Cott Beverages, Inc., with a production and warehouse facility in Texas, issued an employee handbook in October 2016 that contained an attendance policy. The policy stated that employees would be assessed points for violations, including one-half point for each instance of tardiness from 1 minute to 120 minutes. Progressive discipline would be assessed after six points had been issued within a rolling 12-month period. Enforcement initially was “lax and sporadic.” Hoping to achieve more uniform compliance, the employer held trainings for its employees in late-February and early-March 2017 on the attendance policy. Employees were required to sign acknowledgements that violations would result in coaching.

Shortly after the trainings, a union filed a petition to represent Cott’s employees. The union won the election and was certified in early-May 2017. Subsequently, the union filed an unfair labor practice charge with the NLRB alleging the employer had violated the National Labor Relations Act by unilaterally enforcing the attendance policy more strictly in June 2017.

As the advice memorandum explains, the general rule is that an employer cannot make unilateral changes to its employees’ terms and conditions of employment; it must give the union an opportunity to bargain. Stricter enforcement of an existing policy after a union election will generally be deemed such a unilateral change. However, here, the Division of Advice determined that the employer had not violated the Act because it had already decided to strictly enforce the tardiness policy before the election. The Division noted that the training sessions held before the election supported the employer’s assertion that the decision had been made pre-election. A “firm decision” to change a condition of employment made before an election, the Division explained, will not be found unlawful even if the actual implementation occurs after the election. The charge was dismissed.

This advice memorandum reminds employers that, although bargaining with a newly certified union is usually required before an employer may make any substantive changes to its employees’ terms and conditions of employment (such as an attendance policy), an employer does not have to reverse course on previous decisions, even if those decisions have not been fully implemented when the union is certified. Employers that lose NLRB representation elections and want to make changes unilaterally should review the status of any workplace policy initiatives to determine whether a documented final decision on implementation of the change previously had been made. If so, the employer likely may proceed with the change without bargaining with the union.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.