If an employer won’t agree to force its employees to pay union dues to keep their jobs, that is not a reason to force it to continue bargaining with a union its employees don’t want.

On November 27, 2012, the United States Court of Appeals for the District of Columbia vacated the National Labor Relations Board’s decision and order in Erie Brush & Manufacturing Corp., 357 NLRB No. 46 (2011), and denied the NLRB’s cross-petition for enforcement. In Erie Brush, although a tentative agreement had been reached on all other noneconomic issues, the company would not agree to a contract provision requiring its employees to pay union dues as a condition of employment or to a provision requiring arbitration of unresolved employee grievances. Moreover, 18 of the company’s 21 employees signed a petition that they no longer wanted to be represented by the union. Consequently, the company declared impasse and withdrew recognition.

A forced unionism provision ("union shop") is a mandatory subject of bargaining. However, agreement to a union shop is not required, and the NLRB is not empowered to impose such an agreement. See H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970). Relying on its decision in CalMat Co., 331 NLRB 1084, 1098 (2000), in Erie Brush the NLRB noted that, although a single critical issue may cause a legitimate bargaining impasse, the party claiming a single-issue impasse must establish (1) existence of a good-faith impasse, (2) the issue must be critical, and (3) there can be no further progress in negotiations until the impasse over the critical issue is resolved.

The NLRB majority held that no impasse had been reached, and withdrawal of recognition was unlawful, because the union’s suggestion that the parties seek mediation indicated that further bargaining would not be futile, and because the union’s position moved some on its arbitration demand, suggesting progress on the forced unionism provision also was possible. The Board ordered the company to recognize the union and resume bargaining with it for at least six months.

On review, the D.C. Circuit began by noting that the NLRB did not dispute that forced unionism was a critical issue satisfying CalMat’s second factor. Regarding CalMat’s first factor, the court concluded that the union negotiator’s suggestion of mediation did not undercut a finding of impasse, because he also commented that the union had no room to compromise on the forced unionism provision or arbitration. The court agreed with Board Member Hayes’s Erie Brush dissent that the union’s "’mere invocation’ of mediation does not ‘somehow magically ward[] off a deadlock.’"

The court also rejected the NLRB majority’s reliance on the company negotiator’s post-impasse comment that he would continue discussing issues with the union. In Laurel Bay Health & Rehabilitation Center v. NLRB, 666 F.3d 1365, 1375 (D.C. Cir. 2012), the court had held that the NLRB cannot rely on a party’s post-impasse conduct to find no impasse. Applying that holding, the Erie Brush court noted that "a negotiating agent’s bare promise to continue discussing with his principal the topics of negotiations does not imply any moderation in the party’s position."

Regarding CalMat‘s third factor — whether the critical impasse over the forced unionism provision led to the negotiation’s overall breakdown, the court found that both parties made clear that there could be no agreement without resolution of that issue. The court characterized the NLRB’s claim that one party could change its position as nothing but "rank speculation" and criticized the NLRB’s reasoning — "’You never know’ is no substitute for substantial evidence."

The court, therefore, vacated the Board’s order requiring the company to recognize and negotiate with the union its employees had repudiated.

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