2d Enforces NLRB Finding Unlawful Unilateral Change

Cibao Meats v. NLRB, ____F.3d____(2d Cir. Nov. 2, 2008), is an interesting case where the 2d enforced the decision of the NLRB below. The court approved of the Board's order which held that because the employer  unilaterally ceased payments to employee-benefit funds following expiration of the collective-bargaining agreement with the employees’ union, a ULP was committed. The court reasoned that the NLRB
did not err in finding that petitioner’s action was not excused by an economic exigency. The court described an economic exigency as follows:

The NLRB has held that there is an exception to the general
bar against unilateral changes in the conditions of employment prior to negotiations reaching an impasse under “circumstances which require implementation at the time the action is taken or an economic business emergency that requires prompt action.” RBE Elecs. of S.D., Inc., 320 N.L.R.B. 80, 81 (1995); see also Robert A. Gordon & Matthew W. Finkin, Basic Text on Labor Law: Unionization and Collective Bargaining 606 (2d ed. 2004). But the NLRB has also noted, and we agree, that there is a “heavy burden” upon an employer trying to establish application of the exception, and that the “Board has limited its definition of these considerations to extraordinary events which are an unforeseen occurrence, having a major economic effect [requiring] the company to take immediate action. Absent a dire financial emergency, the Board has held that economic events such as loss of significant accounts or contracts, operation at a competitive disadvantage, or supply shortages do not justify unilateral action.” RBE Elecs., 320
N.L.R.B. at 81 (internal quotation marks and footnotes omitted). . .

Mitchell H. Rubinstein