by Christopher M. Moon, Howard M. Bloom, and Philip B. Rosen
Jackson Lewis P.C. is an IMA Member
An employer lawfully unilaterally implemented a stricter tardiness and absentee policy even though a union had recently won an election to represent its workers, according to a memorandum released by the National Labor Relations Board General Counsel’s Division of Advice. Cott Beverages, Inc., No. 16-CA-206068 (Div. of Advice, Apr. 26, 2018, released May 15, 2018).
Cott Beverages, Inc., with a production and warehouse facility in Texas, issued an employee handbook in October 2016 that contained an attendance policy. The policy stated that employees would be assessed points for violations, including one-half point for each instance of tardiness from 1 minute to 120 minutes. Progressive discipline would be assessed after six points had been issued within a rolling 12-month period. Enforcement initially was “lax and sporadic.” Hoping to achieve more uniform compliance, the employer held trainings for its employees in late-February and early-March 2017 on the attendance policy. Employees were required to sign acknowledgements that violations would result in coaching.
Shortly after the trainings, a union filed a petition to represent Cott’s employees. The union won the election and was certified in early-May 2017. Subsequently, the union filed an unfair labor practice charge with the NLRB alleging the employer had violated the National Labor Relations Act by unilaterally enforcing the attendance policy more strictly in June 2017.
As the advice memorandum explains, the general rule is that an employer cannot make unilateral changes to its employees’ terms and conditions of employment; it must give the union an opportunity to bargain. Stricter enforcement of an existing policy after a union election will generally be deemed such a unilateral change. However, here, the Division of Advice determined that the employer had not violated the Act because it had already decided to strictly enforce the tardiness policy before the election. The Division noted that the training sessions held before the election supported the employer’s assertion that the decision had been made pre-election. A “firm decision” to change a condition of employment made before an election, the Division explained, will not be found unlawful even if the actual implementation occurs after the election. The charge was dismissed.
This advice memorandum reminds employers that, although bargaining with a newly certified union is usually required before an employer may make any substantive changes to its employees’ terms and conditions of employment (such as an attendance policy), an employer does not have to reverse course on previous decisions, even if those decisions have not been fully implemented when the union is certified. Employers that lose NLRB representation elections and want to make changes unilaterally should review the status of any workplace policy initiatives to determine whether a documented final decision on implementation of the change previously had been made. If so, the employer likely may proceed with the change without bargaining with the union.
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