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Everything Crazy Can Be Sane Again

We can hope that new appointments to the National Labor Relations Board (“NLRB”) and its General Counsel will eventually return some sanity to American labor law. Until such time, we can only hope that the federal courts of appeals will continue to scrutinize the NLRB’s decisions. 

One area where correction is badly needed is on the issue of when a union has waived its right to bargain over a matter. During the past eight years, the Board has been unwilling to find any situation where a union has waived its right to bargain on anything. For example, in a case involving Columbia College of Chicago, the management rights clause of the collective bargaining agreement stated that the college had the right to modify the course hours granted for any particular course. The union later realized the effect of having agreed to this clause and sought to remove this language while bargaining over a new agreement. While those negotiations were ongoing, the college changed the course credits for several courses. As professor pay was based upon course credits, when the college reduced the course credits for several courses, the effect was to reduce the pay of several professors who were represented by the union.

The union claimed that, as they were in the midst of negotiations over this language at the time that the college made the changes, the college had bargained in bad faith. The union also claimed that the college was required to bargain over the effect of its decisions to reduce the course hours. As clear as the language was in the collective bargaining agreement and that the reduction in professors’ pay was a natural consequence of a decision the agreement gave the college the right to make, the Obama Labor Board found that the college had bargained in bad faith and had an obligation to bargain over the effects.

At least on this case, we can be thankful that the federal Seventh Circuit Court of Appeals reversed the Labor Board’s decision. The Court pointed out that, at the time the college made the changes to the course credits, it was operating under a collective bargaining agreement that was in force and had specific language that allowed it to do so. The Seventh Circuit also found the obvious – that by agreeing that the college can make a decision which would then have an automatic effect on the covered employees, the union had also waived its right to bargain over the effects of that decision.

While the Seventh Circuit ultimately corrected the NLRB’s decision, employers must still be careful when bargaining to ensure that proper language is included that gives an employer the ability to make decisions without further bargaining. While the law may improve in this area under a new Board, I still believe that the best course is to identify the top decisions the employer wishes to retain sole control over and include specific language that clearly gives the employer the right to make those decisions. By careful drafting in negotiations, an employer can avoid some of the craziness that happens in litigation under the U.S. labor laws.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.