Employment Law Daily NLRB: Employer’s conflicting signals mean it failed to effectively repudiate CBA
Thursday, September 21, 2017

NLRB: Employer’s conflicting signals mean it failed to effectively repudiate CBA

By Ronald Miller, J.D.

By failing to respond to a union’s request for information, an employer violated NLRA Section 8(a)(5), ruled a divided three-member panel of the NLRB. The Board rejected the employer’s contention that it earlier had effectively repudiated the parties’ collective bargaining agreement during its term and that the union had clear and unequivocal notice of the unlawful repudiation more than six months before it filed unfair labor practice charges, so that the union’s charge of failure to provide information was untimely. Because the employer later invoked the CBA’s grievance procedure to compel arbitration of union claims for missed dues and fringe benefits, it acted inconsistently with its contention that the asserted repudiation of the contract was clear and unequivocal, concluded the Board. Chairman Miscimarra filed a separate dissenting opinion (Gulf Coast Rebar, Inc., September 18, 2017).

Contract repudiation. The employer, a contractor in the construction industry, entered into a CBA pursuant to Section 8(f) in March 2009. The agreement was to expire on February 10, 2012, and thereafter would automatically renew on an annual basis until either party sent notice of termination at least four months before the next expiration date. It was undisputed that the employer failed to properly terminate the agreement. Instead, on October 18, 2011, less than four months before the contract expiration date, it sent a letter to the union immediately terminating the agreement. The union responded that the letter was ineffective, and the employer did not respond to the union.

Grievance arbitration. On April 3, 2012, approximately six weeks after receiving the union’s reply letter, the employer invoked the agreement’s grievance procedure to compel arbitration of court claims filed by the union for missed dues and fringe benefit payments. On October 22, 2012, a district court granted the employer’s motion to compel arbitration of those claims; during the arbitration proceeding, the employer argued that the CBA was void because it was procured as a result of fraud, duress, and misrepresentation. The arbitrator issued an award in favor of the union, which was confirmed by the district court.

Conflicting signals. On March 23, 2015, the employer failed to respond to an information request by the union, so the union then filed unfair labor practice charges. Claiming that it was under no obligation to respond to the union’s information request and that the union’s charge challenging its conduct was untimely, the employer reasoned that the union’s filing of the ULP charge in April 2015 was outside the six-month limitations period of Section 10(b), because the employer claimed it had lawfully repudiated the parties’ CBA in October 2011.

In order to avoid Section 10(b)’s time-bar, the Board has long required a party to file an unfair labor practice charge within six months of its receipt of clear and unequivocal notice of total contract repudiation. The Board found the employer’s October 2011 letter unavailing because even if the letter signaled the employer’s clear and unequivocal notice of repudiation of the CBA (thus starting the six-month limitations period), it acted inconsistently by filing its April 2012 motion in federal court to compel the union to arbitrate the dues and benefit contribution claims. By invoking arbitration under the contract it purportedly had repudiated months earlier, the employer sent a “conflicting signal” concerning its position on the CBA’s continuing validity.

Delinquent payments. Similarly, the Board rejected the employer’s contention that its discontinuance of remittances of dues and fringe benefit payments also signaled its clear and unequivocal notice of the contract’s repudiation. The employer and an ALJ relied on Park Inn House for Adults to support their contention that failure to make benefit payments before a contract’s expiration gave the union clear notice of the employer’s repudiation. However, the Board found the Park Inn line of cases distinguishable because the repudiation there was of a particular contract obligation, rather than the repudiation of the entire contract.

The employer’s failure to make the payments at most provided the union with notice of the employer’s intent to repudiate those contract provisions, not the contract as a whole. Moreover, because the employer invoked the terms of the CBA in federal court to compel arbitration of the union’s claims for the missed payments, the union did not receive clear notice of repudiation of any relevant contractual benefit provisions. And because the bargaining relationship between the employer and union continued, the union’s information request predicated on that relationship remained valid.

Dissent. In a dissenting opinion, Chairman Miscimarra would have affirmed the ALJ’s finding that the employer did repudiate the CBA and accordingly dismiss the Section 8(a)(5) charge for failure to respond to the union’s request for information. In the dissent’s view, the union had clear and unequivocal notice of the employer’s repudiation of the CBA no later than October 18, 2011. Miscimarra argued that even if conduct postdating a clear and unequivocal contract repudiation somehow constituted a “conflicting signal” that erases a prior repudiation and retroactively prevents the six-month Section 10(b) period from running from the date of the repudiation, it was unfair and contrary to sound labor policy to treat the employer’s motion to compel arbitration as such a “conflicting signal.”

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