Lareau on Cofire Paving Corp.: Employer's Bargaining Obligation When Compliance with Union Contract Impossible

Lareau on Cofire Paving Corp.: Employer's Bargaining Obligation When Compliance with Union Contract Impossible

The NLRB addressed, for the first time, the issue of the extent of an employer's bargaining obligation to a successor union when the employer, for reasons not under its control, is unable to maintain the terms and conditions of employment that prevailed under the predecessor union's collective bargaining agreement. The author concludes that the decision is at least partially incorrect and will present nuanced questions for appellate review.

Excerpt:

An employer whose employees are represented by a union violates the National Labor Relations Act if it changes the terms and conditions of those employees' employment without bargaining with the union about the changes. Moreover, when one union displaces another as the employees' bargaining representative, the employer is obligated to maintain, during negotiations for a new collective-bargaining agreement, the terms and conditions of employment set forth in the predecessor union's collective bargaining agreement. Although the contractual obligation between the employer and the predecessor union terminates when a new bargaining representative is certified, the employer is statutorily obligated to maintain the status quo respecting the terms and conditions of employment memorialized in the contract until an agreement or a lawful impasse has been reached with the successor union.

In a recent case, Cofire Paving Corp. [an enhanced version of this opinion is available to lexis.com subscribers], the National Labor Relations Board ("Board") addressed, for the first time, the issue of the extent of an employer's bargaining obligation to a successor union when the employer, for reasons not under its control, is unable to maintain the terms and conditions of employment that prevailed under the predecessor union's collective bargaining agreement. In this Emerging Issue Analysis, N. Peter Lareau, author of "NLRA: Law and Practice" and numerous other books and articles in the field of labor law, concludes that the decision is at least partially incorrect and will present nuanced questions for appellate review.

Facts

Briefly stated, the employees of a paving company (Employer) voted in an election conducted by the Board to be represented by Union B, displacing Union A, which, prior to the election had been the employees' bargaining representative. Under the collective bargaining agreement between the Employer and Union A, the Employer had been obligated to contribute specific dollar amounts per hour worked to three separate benefit funds sponsored by Union A. When the Board certified Union B as the bargaining representative, those benefit funds refused to accept contributions from the employer on behalf of the employees represented by Union B.

After Union B's certification, the Employer and Union B engaged in negotiations for a new collective bargaining agreement. Although those negotiations did not result in a new agreement, they included substantive discussion regarding the provision of health, pension and annuity benefits previously funded by Employer contributions to the funds that would no longer accept contributions on behalf of the employees represented by Union B. [footnotes omitted]

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