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Duffy Tool & Stamping, L.L.C. v. NLRB

Employer could not unilaterally adopt new and stricter attendance policy, even after employer and union had deadlocked on issue, where other conditions of employment had not yet reached bargaining impasse.

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The full case caption appears at the end of this opinion.

Posner, Circuit Judge. When a union wins anelection to be the exclusive bargainingrepresentative of a group of workers, theemployer becomes duty-bound to bargain in goodfaith with the union. 29 U.S.C. sec. 158(a)(5).The aim of the bargaining process is to negotiatea collective bargaining agreement that willdefine the terms and conditions of employment ofthe represented workers during the term of theagreement. There is no duty to agree, however,and if the parties deadlock (reach “impasse,” inthe jargon of labor law), the employer is free tooperate his business as he did before bargainingbegan, and therefore he may alter the terms andconditions of the workers’ employment. E.g.,Litton Financial Printing Div. v. NLRB, 501 U.S.190, 198 (1991); Lapham-Hickey Steel Corp., 904F.2d 1180, 1185 (7th Cir. 1990). He can also dothis if the union takes steps to delay or avoidbargaining or if the alteration is necessary toavoid serious hardship to the employer. E.g.,Vincent Industrial Plastics, Inc. v. NLRB, 209F.3d 727, 734 (D.C. Cir. 2000); Visiting NurseServices of Western Mass., Inc. v. NLRB, 177 F.3d52, 57-58 (1st Cir. 1999). But if there is nodeadlock, no foot-dragging by the union, and noexigency requiring an immediate change in theterms or conditions of employment to stave offdisaster, the employer may not make such a changeunilaterally. Litton Financial Printing Div. v.NLRB, supra, 501 U.S. at 198. This is animportant rule. The overriding goal of federallabor law is labor peace, and is promoted whenthe parties to a labor dispute avoid a test ofstrength involving a strike or a lockout bynegotiating a collective bargaining agreement,which will standardly include a no-strike clause,thus assuring labor peace during the term of theagreement (usually three years) and setting thestage for future renewals of the agreement.Anything that interferes with the negotiationprocess and makes reaching agreement less likelyinterferes with this goal.

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