NLRB cannot force companies to bargain in face of clear impasse

It's important for in-house counsel to keep a record of negotiating with unions to serve as evidence

A Nov. 27, 2012, D.C. Circuit decision weakened the ability of the National Labor Relations Board (NLRB) to force employers to bargain with labor unions, and offered employers a guide to putting the brakes on negotiations, should they so desire.

In Erie Brush & Manufacturing Corp. v. NLRB, Erie was following a 7th Circuit-enforced NLRB order to recognize and negotiate with the Service Employees International Union. The parties agreed to discuss noneconomic issues before economic ones, and it quickly became clear that union security and arbitration of grievances were critical issues on which the parties disagreed.

From the beginning, union security and arbitration of grievances were framed as key make-or-break issues for the negotiations, and according to the D.C. Circuit’s opinion, “at no point during the ten month negotiation did either party propose a compromise on union security or arbitration that was acceptable to the other party.” What’s more, both parties explicitly stated they believed they were at an impasse.

The D.C. Circuit agreed with Erie, concluding that “the record evidence not only does not support the [NLRB]’s finding, but uniformly supports Erie’s position.”

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