By:  Ashley Kircher Laken, Esq.

On October 22, an NLRB administrative law judge found that an employer violated the National Labor Relations Act when it refused to bargain with a union that had been certified by the Board unless the union agreed that any deal would be voided if the U.S. Supreme Court upholds the D.C. Circuit’s decision in Noel Canning. 12-CA-101034.  We have reported extensively on the Noel Canning case, in which the D.C. Circuit found that President Obama’s January 4, 2012 recess appointments to the Board were invalid and which is now on appeal before the Supreme Court.  See, e.g., here and here.

 The Facts

 In May 2012, the union won an election to represent a unit of drivers at the employer’s Jacksonville, Florida facility by a vote of 44 to 23.  On June 5, 2012, the Regional Director of Region 12 of the NLRB certified the union as the exclusive collective-bargaining representative of the unit.

 The employer and the union met for negotiations in September and November 2012 and in January 2013.  The parties agreed to meet again in late February and early March, but in mid-February, the employer contacted the union and canceled those dates, stating that it was still working on proposals and that it had a conflict with the March bargaining dates.  The union and the employer agreed to meet in late March, and two days before that meeting, the employer wrote the union asking to reschedule because it wanted to better understand the potential impact of the Noel Canning case.    

 The parties later agreed to meet for bargaining in early June, and a week before the scheduled meeting, the employer informed the union that it would be bargaining subject to a reservation of rights based upon Noel Canning.  Specifically, the employer stated that if, before a CBA was agreed to and ratified, the Supreme Court found that the NLRB lacked a proper quorum at the time the Regional Director certified the bargaining unit, the employer would stop negotiating with the union and would not recognize the election result.  Similarly, the employer stated that if the Supreme Court found that the NLRB lacked a proper quorum after a CBA was agreed to and ratified, the employer would consider the CBA void and would not recognize the union.  The union refused to agree to the employer’s bargaining terms.

 ALJ’s Analysis

 The ALJ found that the employer had violated its duty to bargain in good faith in two ways.  First, the ALJ found that the employer’s repeated cancellation of bargaining sessions amounted to a failure of its obligation to meet and bargain.  The ALJ reasoned that the employer had demonstrated that it considered negotiating with the union an inconvenience and that “explanations of busy calendars,” “belatedly realizing conflicts,” and “needing time to review legal ramifications of a particular court case” are not valid justifications for cancelling multiple previously scheduled bargaining sessions. 

 Next, the ALJ found that the employer’s demand for conditional bargaining violated its duty to bargain in good faith.  The ALJ reasoned that there has been no final determination that the Board lacked a proper quorum at the time the certification issued, so the certification is binding on the employer and the union.  The ALJ also reasoned that longstanding NLRB precedent finds no merit to the argument that an employer can insist on conditional bargaining while awaiting the outcome of pending litigation in the courts of appeals, and that the same logic applies to cases pending before the Supreme Court.

 The ALJ also pointed out that even if the Supreme Court does uphold Noel Canning, the matter likely would be remanded to the Board for further consideration and the Board could choose to reaffirm the Board’s earlier actions related to certifications of representatives.  Finally, the ALJ reasoned that because the employer never challenged the certification of the union in June 2012 but instead began negotiating with the union, the employer had voluntarily recognized the union as the collective-bargaining representative of the unit of employees. 

 The ALJ recommended that the employer be ordered to meet and bargain in good faith with the union upon the union’s request, that the employer be required to post a notice to employees, and that the union’s certification year be extended so that its majority status could not be questioned until one year after the employer started bargaining in good faith.

 Concluding Thoughts

 The case provides a cautionary tale for employers who might consider cancelling multiple bargaining sessions or who consider conditioning bargaining on the outcome of a case that is on appeal.  Either course of conduct could result in a finding that the employer violated its duty to bargain in good faith and that the union’s certification year should be extended, preventing the union’s majority status from being questioned during that time.  And of course, employers should stay tuned for the Supreme Court’s decision in Noel Canning.