NLRB Stiff-Arms Circuit Court And Trump Board To Reinstate Workers With Four Years' Pay, Despite No Work For Them To Do

• Published date: 04 October 2022
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: Duane Morris LLP
• Author: Mr James Redeker

For over 50 years, Section 8(a)(5) of the National Labor Relations Act (NLRA) has prohibited unilateral changes by an employer of a mandatory item for bargaining¹ while that item is the subject of negotiations. (See NLRB v. Katz, 1962.) In 1991, the Supreme Court of the United States created a corollary to this rule: With few exceptions,² an employer must maintain the status quo following the expiration of a collective bargaining agreement by refraining from making unilateral changes, unless the parties have reached an impasse in bargaining for a successor contract. (See Litten Financial Printing, 1991.) How these rules apply in specific situations has been the subject of several NLRB decisions, most recently on September 21 in Pittsburgh Post-Gazette. In this case, the Board made a radical change to the application of the corollary, which could have a significant negative effect on employers.

By way of background, in 2015, a Democrat-controlled Board held that the annual wage increase for employees must be repeated after the union contract expired because the annual wage increase was part of a "dynamic" status quo. (See Finely Hospital, 2015.) The fact that the contract said that the increase was for the life of the contract was not clear enough to constitute a waiver of the statutory obligation to maintain the status quo. Not surprisingly, on appeal the Eighth Circuit Court of Appeals denied enforcement of the Board's decision.

In 2019, a Republican-controlled Board in MV Transportation followed the circuit court's reasoning and applied a "contract coverage" standard when deciding whether a provision of a contract continued after the expiration of the contract. That is, if the contract between the parties covered the issue, the contract alone would apply. Only if the contract did not cover the issue would the Board determine whether there was a clear and unmistakable waiver of the status quo requirement.

In Pittsburgh Post-Gazette, the current Board was presented with the following facts:

• The collective bargaining agreement of the Pittsburgh Post-Gazette newspaper and the Graphic Communications Union provided "... all employees... shall be guaranteed five (5) shift[s]... each payroll week for the balance of the Agreement ending March 31, 2017..."
• Following the expiration of the agreement, the parties entered into negotiations for a successor contract. Fifteen months later and before a new contract had been negotiated or an impasse in bargaining had...