5/28/2013 2:18 PM
As Local 18 discovered, be careful how your meetings with management during the term of your agreement are construed. Are they merely labor-management meetings or could they treated as bargaining sessions?
Well aware that Everbrite, a sign and display manufacturer, wanted mid-term concessions from Local 18, the Local agreed to meet with the employer to “listen.” The Local representatives never agreed to engage in bargaining, yet the employer did provide written proposals of the concessions it wanted. In fact the Local specifically stated that the union was not in the process of bargaining with Everbrite.
On January 7, 2012, the Local informed Everbrite that their agreement rolled over for an additional year because neither party provided timely written notice of an intent to modify it. Everbrite disagreed and filed bad faith bargaining charges against the Local. A two-day hearing was held in June and the Administrative Law Judge ruled on July 27 that the Local’s refusal to bargain was a violation of 8(b)(3) of the Act. The ALJ found that although Everbrite “did not dot its i’s and cross its t’s” by sending a letter stating its intent to modify the agreement, it did provide the union written proposals which “sufficiently conveyed Everbrite’s intent to prevent the 2009-2012 contract from rolling over.” The Local filed exceptions with the National Labor Relations Board in Washington.
Five days prior to the June hearing, the Local had stated in a letter to Everbrite that “any dispute over whether Everbrite provided timely notice to the Union to negotiate a successor agreement should be resolved under the arbitration clause.” The NLRB was able to rely on the fact that the Local sent this letter in order to “find that the judge erred in failing to defer to the parties’ contractual grievance-arbitration procedure” and reversed the ALJ. Based upon established precedent, the Board found that deferral to the parties’ grievance-arbitration procedure is appropriate when the following conditions are met:
• The parties’ dispute arises within the confines of a long and productive collective-bargaining relationship;
• There is no claim of animosity to employees’ exercise of their right to organize;
• The parties’ agreement provides for arbitration in a broad range of disputes;
• The parties’ arbitration clause clearly encompasses the dispute at issue;
• The party seeking deferral has asserted its willingness to utilize arbitration to resolve the dispute; and
• The dispute is well suited to resolution by arbitration.
The Board concluded that these conditions were met in this instance and that the issue of whether the agreement was automatically extended for another year by its terms, because no party provided sufficient and timely written notice of an intent to modify the agreement, is a question of contract interpretation that is well suited for resolution through arbitration. The complaint was dismissed, but Board jurisdiction was retained in case a) the dispute is not resolved promptly by arbitration (or settlement), or b) the arbitration procedures turn out to be unfair, irregular or the result is repugnant to the Act.