When a union wins an election to be the exclusive bargaining representative of a group of workers, the employer becomes duty-bound to bargain in good faith with the union. The aim of the bargaining process is to negotiate a collective bargaining agreement that will define the terms and conditions of employment of the represented workers during the term of the agreement. There is no duty to agree, however, and if the parties deadlock (reach "impasse," in the jargon of labor law), the employer is free to operate his business as he did before bargaining began, and therefore he may alter the terms and conditions of the workers' employment.

The overriding goal of federal labor law is labor peace. The law assumes labor peace is promoted when the parties (employer and union) avoid a test of strength involving a strike or a lockout. The parties avoid the dispute by negotiating a collective bargaining agreement. Labor law assumes that there will be fewer labor disruptions of commerce when a labor agreement is in place.

The Case. Duffy Tool & Stamping v. NLRB (7th Cir 12/01/2000)
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Duffy Tool & Stamping makes the case that it is free to make unilateral changes in the terms and conditions of its workers' employment as soon as the parties reach deadlock on any issue in the negotiation with the union. The union won an election back in October of 1996. During the course of the ensuing negotiations, the company put forward a proposal to institute a "no fault" attendance policy under which a tardy worker would get a certain number of points for every incident of tardiness, regardless of whether he was at fault, and if he accumulated a specified number of points could be fired. The company's existing attendance policy was more lenient. The union opposed the proposal.

Duffy Tool & Stamping declared an impasse and on January 1, 1998, put the new policy into effect and later fired some workers who might not have been fired under the old policy. In reviewing the case the Board found that while the parties may have been deadlocked over the "no fault" policy by the beginning of 1998, they were not yet deadlocked on all the mandatory issues for collective bargaining; they had not reached an "overall impasse." The employer disagreed that it had not yet reached an overall impasse with the union and was free to implement the proposal.

The court ruled that the Board was on sound ground in insisting that the employer bargain until it is plain that the parties are deadlocked in the negotiation as a whole, a point not reached here. As for the employer's complaint that the provision of the Board's remedy that instructed them to restore the status quo by rescinding the "no fault" attendance policy and reinstating the workers fired under was unfair in that it would require the reinstatement of the workers that the company would have fired even under the previous, more lenient policy, the court did not agree.

The order directs the company to reinstate with backpay employees "discharged, suspended, or otherwise denied work opportunities as a result of the work rules". The order is not intended to make any worker better off than he would have been had the company not violated the law by instituting the new attendance policy before it had bargained to impasse.

The petition for review was denied, and the cross-petition to enforce the Board's order was granted.

One of the points of interest in this case is just how far the NLRB and courts will go to protect a union's right to continue bargaining and to give the appearance that the union is a viable force in the workplace. Whenever an employer is contemplating bargaining to impasse it must use extreme caution prior to implementing its offer.