Seyfarth Synopsis: The D.C. Circuit partly denied enforcement of the NLRB’s decision in which the Board ruled that a transfer of work constituted a change in the scope of the bargaining unit and ordered the employer to return previously transferred employees back to their original unit.

In Aggregate Industries v. NLRB, No. 14-1252, 2016 WL 3213001 (D.C. Cir. June 10, 2016), the D.C. Circuit partly denied enforcement of the NLRB’s decision against Aggregate Industries.

The key question, according to the D.C. Circuit, was whether the Company’s decision to move the material hauling work from its construction side of the business to its ready-mix division constituted merely a transfer of work or whether it changed the scope of the bargaining unit itself.

If the relocation of driving responsibilities was a transfer of work, then the Union had a duty to meet with the Company and bargain over the issue. Once impasse had been reached, the Company could unilaterally implement the change.

Alternatively, if the transfer was a change in the scope of the unit, the Union was not required to meet to bargain and a failure to do so would not provide the Company with a lawful basis to implement the change.

The Board characterized the decision as a change in the scope of the bargaining unit rather than a transfer of work, based in part on the fact that 60 drivers were relocated from a bargaining unit covered by the Company’s Construction Agreement to a unit governed by the Ready-Mix Agreement. The drivers were transferred as part of an agreement between the Company and the Union, which took place after the union filed the unfair labor practice charge in the case and therefore, according to Judge Raymond A. Randolph, the fact that drivers were relocated was “a red-herring, and the Board was wrong to rely so heavily on it.”

Rather, the D.C. Circuit found that the operative action was the Company’s initial proposal to the Union in which the Company communicated its intent to transfer work from the construction side of the business to the ready-mix side. This proposal was separate and apart from the Company’s request to use the same drivers to perform the work.

As a result, transferring the work out of the unit did not change the scope of the unit because the unit was not defined by the work that employees performed, but rather by job classification. Job classifications governed by the Ready-Mix Agreement and the Construction Agreement both arguably included the work to be transferred. Thus, the Company’s unilateral implementation of the work transfer was lawful as “the union had an opportunity to bargain over the transfer but declined to do so.”

The Board argued that the union had not been given a meaningful opportunity to bargain as the proposal to transfer the work was presented as something the Company intended to do, not as a proposal. But, according to Judge Randolph and the D.C. Circuit, employers do not need to present proposals couched in “what-ifs and maybes” in order to trigger a bargaining obligation as, “The National Labor Relations Act requires employers to bargain; it does not require them to be bad at it.”