Friday, April 15, 2011

Past Practice of One Union Does Not Apply to Later Union

NLRB The NLRB recently issued its decision in Eugene IovIne, a case involving an employer's unilateral change.  The central issue was whether the employer did not need to bargain because it was merely following past practice.  The concluded, as noted in the summary below, that the employer failed to establish evidence of a past practice.  However, as Dennis Walsh noted to me, the Board also resolves a long outstanding issue (in footnote 3):  whether past practice involving the employer and a predecessor union can be used against a subsequent union.  The Board concluded that, even if evidence of past practice wit the prior union existed, it could not bind a different union:

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees without providing the Union timely notice and an opportunity to bargain over the layoffs.

The Board rejected the Respondent’s affirmative defense that it was merely adhering to a consistent past practice of unilaterally implementing layoffs in response to work-or-weather-related delays on its construction projects.  The Board found that the Respondent, which bears the burden of proving the existence of its past practice, failed to present evidence showing when, how frequently, or under what circumstances its asserted past practice of unilateral layoffs occurred.  Absent such evidence, the Board concluded that the Respondent had not demonstrated that the challenged layoffs were permitted as a continuation of past practice.  The Board agreed with the judge that the Respondent may not establish a past practice defense privileging its unilateral conduct based on the acquiescence of a prior union that represented unit employees prior to the current union.

Hat Tip:  Dennis Walsh

-JH

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