NLRB v. Whitesell Corp. Case

Facts: The employer purchased a manufacturing facility whose employees were represented by a union. The employer agreed to abide by the terms of the existing collective bargaining agreement. Prior to the expiration of the existing agreement, the parties began negotiations on a new agreement. After meeting for eight sessions, the employer declared an impasse and ultimately implemented its final offer. The union filed unfair labor practice charges, and an administrative complaint was filed, charging the employer had prematurely declared impasse. Issue: National Labor Relations Board find that metal manufacturer Whitesell Corp. violated labor law when it failed to negotiate with a union in good faith. Rule: NLRB stated that the failure to provide the requisite section 8(d)(3) notice constituted a separate violation of the duty to bargain under section 8(a)(5) and that the remedy for this violation was to extend the dues-checkoff provision until 30 days after the FMCS received the proper notice from Whitesell. See Whitesell Corp., 352 N.L.R.B. at 1198 (citing Petroleum Maint., 290 N.L.R.B. at 462–63 (holding that the failure to provide notice to the FMCS as required by section 8(d)(3) violates sections 8(a)(1) and (a)(5) and that, in such circumstances, a dues-checkoff provision extends beyond the CBA until 30 days after the proper notice is ultimately delivered)). Defense from Whitesell Corp Whitesell objects to this ruling on a number of grounds. First, Whitesell argues that, under NLRB precedent, it sufficiently demonstrated that it mailed timely notice to the FMCS. Second, Whitesell alternatively argues that the remedial period for reimbursing the Union should end 30 days after the Union contacted the FMCS requesting a federal mediator on July 10, claiming that, at this point, the FMCS was effectively put on notice of the dispute. Third, Whitesell argues “there is no sound reason” for Petroleum Maintenance's remedy of extending the dues-checkoff provision through 30 days after notice is received because, citing to a number of cases,9 a violation of the notice requirement of section 8(d)(3) does not extend the terms of a CBA beyond the expiration. Application: The National Labor Relations Board (“NLRB” or “the Board”) has applied for enforcement of its order finding that Whitesell Corporation (“Whitesell”) violated. Turning to the merits, The employer’s negotiator informed the union that it had no intention to bargain beyond the expiration of the contract. Further, the employer acknowledged that it desired to implement substantial changes to the existing CBA. The employer presented its proposal to replace the system of annual wage increases with a merit-based system at the third of eight meetings. Moreover, the employer claimed an impasse even though the parties had agreed upon 30 issues and were continuing to come to agreement on other important issues. The employer’s claim that the parties were deadlocked over wages was belied by the fact that the union had already reduced its wages demands. Rather, disagreements over disciplinary action and overtime were the only issues over which the parties were clearly deadlocked, while progress had been made

over retirement, wages, vacations, performance evaluations, seniority, leaves of absence and sick leave provisions. Moreover, the employer’s argument that the parties had reached a good-faith impasse was undermined by the NLRB’s finding that it failed to provide information about vacation plans as required by NLRA Sec. 8(a)(5). Thus, disagreement was prolonged by the employer’s failure to provide the information requested by the union. Finally, the employer cancelled a voluntary supplemental accident fund without bargaining over the issue. Consequently, the employer failed to bargain in good faith when it terminated the existing contract without reaching a valid impasse. Conclusion: The Eighth Circuit concluded that substantial evidence supported findings that the employer failed to negotiate to a valid impasse where it imposed an arbitrary deadline on negotiations by stating that it intended to present its final offer by a specific date and engaged in only a limited number of bargaining sessions before declaring impasse.