On May 10, 2011, the Acting General Counsel of the National Labor Relations Board sent a memo to all of the Board’s Regional Offices telling them to submit all pending cases involving the issue of whether the employer had a duty to bargain with the union representing its employees about a decision to relocate work. In a speech given by Solomon on June 9, he stated the reason for the Memo: he wants to find an appropriate vehicle for the Board to reconsider the Board’s long established rules governing bargaining over decisions about taking work out of unionized plants and moving it to more friendly environs. Apparently, the fire-storm Mr. Solomon caused by the complaint against Boeing for its decision to place work in a new, non-union South Carolina plant rather than in a strike-plagued unionized plant in Washington was not enough for him.
Mr. Solomon’s instruction follows Chairman Leibman’s musings in a case published on March 31, 2011, that she believes it may be time to require employers to provide information to its union detailing the reasons why it may decide to relocate work, even where the decision could not be affected by anything a union might do. See Embarq Corporation and IBEW, 356 NLRB No. 125 at page 2. A change in the rule as suggested by Leibman (and now contemplated by the Acting General Counsel) would be a sea-change in the way unionized employers will be required do business..
The current rule was developed through numerous cases and finally settled in 1991 in Dubuque Packing Company, 303 NLRB 386, 1991, enfd. in pertinent part 1 F3d 24 (D.C. Cir 1993) review denied 511 U.S. 1138 (1994). Broadly stated, the rule is that where company’s a decision to relocate work was for reasons that did not sufficiently implicate labor costs so that the Union could do nothing that would cause the reversal of the decision, the employer would not be required to bargain that decision with the union. If, however, the Union could do something to keep the work (such as by reducing labor costs through concessions), the employer would be obligated to bargain about the decision and give the Union an opportunity to make the necessary changes. Even if the employer would not be required to bargain about the decision to move work, it still would be required to bargain about the effects of the decision (e.g., severance).
Currently, if a Union believes that the decision was something they could have reversed by giving concessions, it can challenge the decision through a refusal to bargain charge against the employer. In such a case, the Company would have to show that the Union could not or would not have made concessions sufficient to stop the work relocation. The Labor Board, after a trial, would decide whether the Union could have made sufficient concessions and whether the Company violated the law by not bargaining about the decision. The Board would have the equitable power to require a reversal of the decision, pending bargaining.
Bargaining over a decision to relocate work would require the Company to give the Union the facts on which it based its decision and its conclusion that the Union could make no concession that would induce the Company to change the decision. Because most Companies do not wish to subject the decision to relocate work to what could be protracted and contentious union negotiations, the preferred course of action is to analyze the factors within the confidential walls of the management offices, leaving it to the Union to challenge the decision in retrospect without interfering with the immediate flow of business.
The scenario and process that Leibman is considering is dramatically different:
To encourage more constructive good-faith bargaining, we might modify the Dubuque framework, for example, by requiring the employer to timely advise the union whether its contemplated relocation plan turns on labor costs. If the relocation does not turn on labor costs, the employer would be required to so advise the union and explain the basis of its decision. If it does turn on labor costs, the employer, upon timely request, would be required to provide the union with information about the labor-cost savings and advise whether, in its view, the union could make concessions that could change its decision. If the employer provided the information, and the union failed to offer concessions, the union then would be precluded from arguing to the Board that it could have made concessions. If the employer failed to honor information requests where labor costs are a factor, it would be precluded from arguing that the union could not have made concessions.
What is troubling about Leibman’s process is that, in cases where the employer, in good faith, has concluded that the Union could not offer concessions sufficient to keep the work from being transferred, it would still have to deliver to the Union the bases for its decision. If the Union then seeks the information that backs up the reasons, the Employer would be obligated to provide that information, some of which may be competitively sensitive, or be subject to a refusal to bargain charge. What would follow could be protracted negotiations. The drag on the ability to make timely decisions could be significant and further justify the unwillingness of companies to put new work into unionized facilities. Also, the reasons for a decision may implicate other strategic plans of the Company that would, if revealed, endanger other competitive edges that the Company is seeking to achieve, the relocation of work being just a piece in a much larger puzzle.
Leibman’s “musings” are additional indications that she is on a drive to broaden the powers of the National Labor Relations Board from an enforcement agency into a policy-making body. If unchecked, Leibman will inject the Labor Board into the process of doing business to an unprecedented degree and far beyond what Congress intended when it passed the NLRA.
It is clear from the preamble of the NLRA that Congress’s intent was that the Act should be, in both purpose and structure, reactive and remedial, not policy-making. Even in the portion of the preamble that speaks about “encouraging the practice and procedure of collective bargaining,” the means of doing so in the context of remedying violations of the law and not by making policies:
It is hereby declared to the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aide or protection. 29 U.S.C.A. Section 151 (emphasis added)
Seeming to acknowledge the statutory limitation on the Board’s power, Leibman stopped short of suggesting that the failure of an employer to submit information about its decision to relocate work to the Union in advance of making the decision would constitute an independent violation of the Act. Rather, she would give the failure to do so (and likewise the failure of a Union to propose concessions to stop the transfer) a preclusive effect in any later challenge to the action before the Board.
These devices of choosing to enforce or not to enforce or to accept or not to accept certain defenses in enforcement proceedings are, in my view, attempts to achieve by circumspection what the law does not permit directly. As such, the effort is not only intellectually dishonest, but also is reprehensible. Either way, Employers need to be aware of yet another possible push by the current Labor Board to reshape the way American companies do business. Curiously, this single-minded drive to deliver more power to unions at the expense of productivity and competitiveness may have the unintended consequence of driving more work away from unionized plants. At a minimum, companies are well advised to do those things necessary to remain non-union to avoid the dilemma that the current National Labor Relations Board is creating for companies that have to recognize and deal with unions.