On February 9, 2016, the Eighth Circuit Court of Appeals held that National Labor Relations Board (the “Board”) properly concluded that an electrical subcontractor violated the National Labor Relations Act when it unilaterally changed its employee break policy without affording the employees’ union an opportunity to bargain over the change. Parsons Electric, LLC v. NLRB, Nos. 14-3239 and 14-3662 (8th Cir. Feb. 9, 2016).  This decision is a reminder for employers to consider whether a change in the terms and conditions of employment is sufficiently significant to require bargaining with a union before implementation.

Although the collective bargaining agreement between the employer and the union was silent on employee breaks, since at least 2005, the employer maintained a written employee break policy providing for a 15-minute break in the morning and a 15-minute break in the afternoon, subject to jobsite managerial discretion. In 2012, however, the employer amended its employee break by eliminating the default 15-minute breaks and stating that “[the employer] may establish specific break policies as part of the jobsite expectations.”  After a number of employees complained to the union that the employer ceased permitting afternoon breaks and early departures in lieu of breaks, the union filed an unfair labor practice charge.

Giving considerable deference to the Board, the Eighth Circuit concluded that the policy change was “material, substantial, and significant,” thus requiring the employer to bargain with the union. As the court explained:

To be sure, [the employer] retained discretion to override the two-break standard if the particular ‘jobsite expectations’ so required, but under the 2005 Break Policy, that discretion would be exercised as an exception to the default rule. The 2012 Break Policy, by contrast, eliminated the default rule with respect to employee breaks and instead granted [the employer] unfettered discretion to determine whether employee breaks would be permitted at all, and, if they were permitted, when they would occur and how long they would last.

In other words, while the 2005 break policy provided employees with a “specific, concrete standard,” the 2012 break policy left the determination of breaks entirely to management.

The Eighth Circuit also rejected the employer’s argument that the 2012 break policy was nothing more than a clarification of the company’s standard practice under the former policy. Again deferring to the Board’s findings, the Eight Circuit noted that “the Board credited evidence and testimony that, prior to 2012, the typical practice at [the employer’s] jobsites was to follow the default standard set forth in the 2005 Break Policy.”  In the end, the court denied the employer’s petition for review and granted the Board’s petition for enforcement of its order.