Employers May Not Condition Collective Bargaining on Outcome of Noel Canning

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

November 12, 2013

An administrative law judge (ALJ) for the National Labor Relations Board (NLRB) has found that an employer violated the National Labor Relations Act (NLRA) by refusing to bargain with a union unless the union agreed that any collective bargaining agreement (CBA) reached would be void if the US Supreme Court upholds the controversial Noel Canning decision. Professional Transportation, Inc., Case Number: 12-CA-101034 (Oct. 22, 2013). Accordingly, until a final decision is reached in Noel Canning, employers should not cancel or otherwise condition collective bargaining efforts on the unknown outcome of the case.

In Professional Transportation, the employer canceled numerous collective bargaining sessions with a union. The employer also conditioned further negotiations on the Supreme Court's pending determination in Noel Canning regarding whether the NLRB had the proper quorum in June 2012 at the time it certified the union as the bargaining unit of the employees. The employer specified the following two conditions:

  • If, prior to a CBA being agreed to or ratified, the Supreme Court finds that the NLRB lacked a proper quorum at the time the NLRB Regional Director certified the union, the employer would stop negotiating and would no longer recognize the union; and
  • If a CBA was agreed to and ratified after the Supreme Court determines that the NLRB lacked a proper quorum at the time the NLRB Regional Director certified the union, the employer would consider the agreement void and no longer recognize the union.

The employer reasoned that if the Supreme Court upholds the Noel Canning decision and finds that the NLRB lacked a quorum at the time the union was certified, then the employer would, therefore, not be required to recognize the union as the representative of that unit of employees and any CBA agreed upon would be void. The union refused to accept the employer's conditions and filed an unfair labor practice charge.

The ALJ concluded that the employer violated the NLRA by failing to bargain in good faith with the union when it (1) repeatedly canceled bargaining sessions and (2) demanded conditional bargaining pending the Supreme Court's decision in Noel Canning. The ALJ noted that when the union was certified in 2012, instead of challenging it, the employer instead began negotiating with the union. In effect, the employer voluntarily recognized the union as the bargaining representative of its employees.

The ALJ also observed that an employer may not insist on conditional bargaining or be relieved of its responsibilities or obligations while awaiting the outcome of litigation pending in the appellate courts or the Supreme Court. Notably, the ALJ added that in the event the Supreme Court upholds Noel Canning, impacted matters will likely be returned to the NLRB, which could choose to reaffirm its earlier actions relating to certifications of bargaining representatives.

The Supreme Court is scheduled to hear oral arguments in Noel Canning on January 13, 2014. XpertHR will continue to follow any developments in the case and other key HR compliance issues.