In Embarq Corporation, 356 NLRB No. 125, the employer decided to consolidate several call center operations to increase efficiencies and cut costs, causing the closure of a Las Vegas facility and the move of its operations to a “mega-center” in Florida. The employer correctly believed that its decision was not subject to mandatory collective bargaining under the 1991 Dubuque Packing test and refused the union’s lengthy request for information. The Dubuque Packing framework determines if a relocation decision is, or is not, a subject of mandatory collective bargaining. The NLRB agreed that the decision was not subject to bargaining and that the employer properly refused the union’s request.

However, Chairman Wilma Liebman filed a separate concurring opinion in order to announce her desire to change the Dubuque test. Her proposed modifications would place a large burden on employers to disclose its decision-making process and to conceive of and offer an escape plan to the incumbent union to avoid the relocation. She would modify the test to require employers to timely advise unions of the basis for any contemplated relocation plans and, if labor-costs are a consideration, details regarding the anticipated savings. She would also require the employer to advise the union what concessions it could offer which would change its decision.

Neither party in Embarq requested that the Board revisit the existing law, but because of Liebman’s statement in her concurring opinion that she would be open to modifying the Dubuque framework, it is almost certain that the next union to challenge a relocation case will make the request. It is also a near certainty that the NLRB will use that opportunity to mandate that employers reveal their decision analysis and basis to the union regardless of whether the decision itself is a subject for bargaining or not.

[The Embarq Corporation v IBEW case can be found at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580469ddd]