Court Requires 'Substantial Evidence' of Break in Impasse - Employment Law - DC Circuit
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Court Requires 'Substantial Evidence' of Break in Impasse

When Hostess was unable to reach a labor agreement with union leaders, the company found itself in bankruptcy court.

When Erie Brush & Manufacturing failed to reach an agreement with its union reps, it found itself before the National Labor Relations Board on unfair labor practice charges.

An NLRB Administrative Law Judge Board concluded that Erie had violated the National Labor Relations Act by refusing to bargain with the Union over an approximately six-week period in 2006. The ALJ held that this refusal to bargain tainted a union decertification petition, so that Erie's withdrawal of recognition of the Union also violated the Act.

This week, the D.C. Circuit Court of Appeals reversed that decision.

Erie Brush & Manufacturing challenged the NLRB's finding of unlawful refusal to bargain, arguing that the parties were at a bargaining impasse. Alternatively, Erie argued that -- even if the appellate court upheld the Board's finding of an unfair labor practice -- the bargaining remedy imposed exceeded the Board's authority.

The impasse was focused on union security and arbitration of grievances. (Erie and the union had reached agreement on all other noneconomic issues.) The union rep repeatedly told Erie's rep that the union had no room to compromise, calling those issues "make or break on [the] whole contract" and claiming "there wouldn't be a contract without a union security clause." Erie's rep was just as adamant, refusing to agree to a contract that contained union security or arbitration provisions.

Shortly after the union threatened to file an unfair labor practice charge, an Erie employee who was a member of the bargaining unit delivered a union decertification petition to the union.

In reviewing the situation, the Board found that Erie couldn't hide behind its "impasse" assertions because there had been a break in the impasse.

The appellate court concluded that the Board's finding that the Union established changed circumstances sufficient to break any impasse was unsupported by substantial evidence in the record. Accordingly, the D.C. Circuit Court of Appeals granted the petition for review and vacated the Board's decision and order.

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