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CBA Automatically Renewed When No Bargaining before Union Pulled Late Notice to Terminate: NLRB General Counsel’s Office
Practical Law Legal Update 2-608-8905 (Approx. 4 pages)
CBA Automatically Renewed When No Bargaining before Union Pulled Late Notice to Terminate: NLRB General Counsel’s Office
by Practical Law Labor & Employment
| Published on 20 Apr 2015 • USA (National/Federal) |
The Office of the General Counsel of the National Labor Relations Board (NLRB) released an advice memorandum concluding that a collective bargaining agreement (CBA) automatically renewed because the employer and the union did not engage in bargaining prior to the union withdrawing its untimely notice requesting negotiations. As a result, the union's refusal to meet and bargain with the employer following its withdrawal of the untimely notice was lawful.
On March 25, 2015, the Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum recommending that an NLRB regional office dismiss an unfair labor practice (ULP) charge against a union for refusing to bargain. The Division of Advice concluded that the collective bargaining agreement (CBA) automatically renewed because the parties did not engage in bargaining before the union withdrew its untimely notice of contract termination.
The union represented multiple bargaining units at Ashford Presbyterian Community Hospital, including an auxiliary personnel unit and a clerical unit. The CBA involving the auxiliary personnel unit was due to expire on October 31, 2014 and contained a one-year automatic renewal provision unless either party sent written notice by August 1, 2014 of its intent to terminate or modify the CBA. The union sent the employer an untimely notice dated August 12, 2014, requesting to negotiate a successor auxiliary unit contract. Over the next few weeks the union and the employer met twice. The first meeting involved a general discussion of the employer's economic situation (the auxiliary unit's spokesperson was not present), and at the second meeting the employer presented a written proposal regarding the clerical unit. On September 11, 2014, the union informed the employer that it was withdrawing its August 12th notice. The employer requested to bargain with the union about the auxiliary unit but the union refused, arguing that the auxiliary unit CBA had automatically renewed.
The Division of Advice noted that:
- Renewal clauses in a CBA requiring written notice to stop renewal are strictly enforced.
- An untimely notice will be treated as a request to modify the CBA by mutual assent unless the parties clearly terminate the CBA later (K-B Theatres, 238 N.L.R.B. 507 (1978)).
- If bargaining begins prior to expiration of the contract, the parties waive their right to rely on the untimeliness of the modification or termination notice as a basis for asserting that the CBA automatically renewed (Hutco Equipment, 285 N.L.R.B. 651, 652 (1987)).
- Preliminary discussions between an employer and a union do not constitute bargaining sufficient to trigger a waiver of the right to assert renewal of the CBA (Champagne County Contractors Association, 210 N.L.R.B. 467 (1974)).
- A party's withdrawal of its termination or modification notice prior to the commencement of bargaining does not prevent automatic renewal of the CBA (Se-Ma-No Electric Cooperative, 284 N.L.R.B. 1006 (1987)).
The Division of Advice concluded that:
- The auxiliary unit CBA automatically renewed because the employer and the union did not engage in bargaining prior to the union withdrawing its untimely notice which had requested negotiations on a successor agreement for the auxiliary unit.
- The following two meetings between the employer and union did not qualify as bargaining:
- a meeting where the parties engaged in a general discussion of the employer's economic situation; and
- a meeting where the employer presented a written proposal concerning the clerical unit, but not the auxiliary unit.
- The union's refusal to meet and bargain with the employer following the union's withdrawal of its untimely notice was lawful.
Although advice memoranda are not binding precedent on the panel (Board) heading the judicial functions of the NLRB, the Division of Advice recommended that the employer's ULP charge be dismissed absent voluntary withdrawal by the employer.