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 bargaining 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, 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 occurred, the company told the union that it had made a decision to transition to an all-digital format and, beginning in August 2018, it would reduce the number of print days from seven to five. The parties commenced bargaining about the effects of the decision on the employees. Before an agreement was reached on either the effects of the decision or a successor contract, the company laid off two pressmen.

An unfair labor practice charge was filed, alleging that the company’s unilateral action violated its status quo obligation and that the contractual guarantee of five shifts per week should have been continued until either a new agreement was negotiated or an impasse was reached. On stipulated facts, an administrative law judge dismissed the complaint, holding that the parties had clearly agreed that the five shift guarantee would cease upon the expiration of the contract. The judge’s decision was appealed to the full Board.

Four years later, the Board issued its decision and reversed the administrative law judge, holding that, while the language in the contract may have been sufficient to terminate the five-shift guarantee as a contractual matter, it was not sufficiently clear and unmistakable that the union waived its statutory right to the maintenance of the status quo. Therefore, as a matter of statutory law, the dynamic status quo included the five-shift guarantee, even though the parties had agreed that the guarantee would end when the contract expired. The Board, having concluded that the five-shift guarantee was part of the status quo, ordered the reinstatement of the two pressmen who had been laid off, even though there was no work for them to do. The back pay dated back four years, to October 6, 2018.

In making this decision, the current Board not only rejected the decision of the Republican Board in MV Transportation, but also declined to heed the Eighth Circuit’s refusal to enforce the Democratic Board’s decision in Finely Hospital.

What Employers Need to Know

This decision is another example of the see-sawing changes in the application of the NLRA that began with the Obama and Trump Boards and is being continued by the Biden Board. The effect of these changes in Board law make it difficult for employers to make operational decisions. Because of the current pace of these changes, employers must be alert to both the changes that have already occurred and those that can be reasonably anticipated. Of particular importance is knowing whether a contemplated operational decision implicates the NLRA. At those times, the guidance of counsel should be sought.

With regard to the effect of this case, if an employer does not want a term in its labor contract to be part of a dynamic status quo, it must ensure that the union’s waiver of its statutory and contractual rights is clear and unmistakable.