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  • My Employer Closed My Office. Where’s My Union Representatives?

    Decisions in the workplace are made everyday. Sometimes these decisions require the employer to contact the union who represents their employees; other times they can simply take action without contacting anyone. This issue becomes of particular concern when employers decide to shut down or partially close facilities. So, when does an employer have to bargain with the union regarding facility closings? Let’s take a quick look.

    Section  8(a) (5)  of  the  National Labor Relations Act (“NLRA”) makes  it an  unfair  labor  practice  for  an employer  “to  refuse  to  bargain  collectively  with  the  representatives  of his  employees.” 29  U.S.C.  § 158(a)(5).  Section 8(d) defines “to  bargain as: “[T]he performance  of  the  mutual  obligation  of  the  employer  and  the  representative  of the  employees  to  meet  at  reasonable  times  and  confer  in  good  faith  with  respect  to wages,  hours,  and  other  terms and conditions of  employment . . . but  such  obligation does  not  compel  either  party  to  agree  to  a  proposal  or  require  the  making  of  a concession  ….” 29  U.S.C.  § 158(d).  Thus, the main consideration when a company decides to make a significant change to its business is whether that change is a “term and condition” of employment. If it is then that decision must be bargained over.  Generally, the parties of a collective bargaining agreement do not have to bargain over every topic, but they must bargain in good faith over “mandatory subjects,” including wages, hours, and other “terms and conditions of employment” 29 U.S.C.A. § 158(d).  Since these “mandatory subjects” are very broad, courts have attempted to set various standards for determining whether a specific bargaining topic is considered mandatory.

    Typically, the collective bargaining agreement will present specific topics that the union and employer must bargain over.  However, absent such provisions in the contract, various cases have provided us with areas that the court feels must be taken into consideration. For example, when an employer decides to close a facility the rule is reasonable clear.  That is, employers are entitled to shut down a facility and go out of business for any reason, including an anti-union reason.  See Textile Workers v. Darlington, 380 U.S. 263 (1965).  Similarly, partial facility closings for anti-union reasons do not violate the NLRA either, unless the closing is intended to “chill” unionism at other employer facilities.  Additionally, some management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an indirect impact on the employment relationship, and thus, are not mandatory bargaining topics. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).

    In some situations, a union may be able to argue that the employer’s decision would have an “effect” on the employee/employer relationship. In such a case, even if the union has “waived” its right to bargain, the employer may be obligated to bargain over the effect of the change. Unlike a decision to close a facility or eliminate part of the business, an employer must bargain over the “effects on employees” of such decisions. This is generally where employers and unions bargain over severance pay, etc.