Posted: October 17, 2016 

Masud Labor Law Group has reported on the National Labor Relations Board’s (NLRB) pro-union agenda under the Obama Administration for a number of years.  Unfortunately, we are writing to report on more of the same.  Indeed, in a recent case involving Kellogg, the NLRB went so far as to violate its own longstanding precedent in an effort to protect the union cause.

In the case, Kellogg and the union were parties to a master agreement, which covered four unionized facilities and set policy regarding wages and fringe benefits generally.  Kellogg and the union also entered into separate local agreements for each of the four facilities that set specific terms and conditions of employment for each facility.  When the local agreement for one of Kellogg’s facilities expired, Kellogg proposed to eliminate many of the restrictions contained in the local agreement regarding the use of casual employees.

The local union refused to discuss these changes.  It claimed that Kellogg’s proposal effectively modified the master agreement, which remained in effect.  Curiously, however, there was no language in the master agreement governing the use of casual employees other than a reference to the wage which would be paid to casual workers.  In response to the impasse in negotiations, Kellogg locked out employees from the facility.  The union filed an unfair labor practice.

Under well-established NLRB case law, it is an unfair labor practice to modify the terms of a union contract while the contract is in effect.  To make such a change is considered an unlawful mid-term modification of the contract.  However, in order for the NLRB to find that a mid-term modification has occurred, a union must prove that a specific, express term in an existing contract has been altered. 

The NLRB ignored this clear precedent and ruled that Kellogg committed an illegal mid-term modification because its proposals regarding casual employees “effectively” modified the master agreement.  Yet, the NLRB could not point to any terms from the master agreement which were changed in order to support its decision.  This, of course, was because Kellogg did not change any of the master agreement’s existing language.

Kellogg appealed the case to the Sixth Circuit Court of Appeals.  The Sixth Circuit lambasted the NLRB and specifically ruled that it would not “rubber stamp” the NLRB’s decisions.  Because the NLRB’s ruling was directly contrary to existing precedent, the Sixth Circuit vacated the NLRB’s decision.

The NLRB’s decision in Kellogg further underscores the lengths the NRLB will go to champion the union cause and why contractors need to work with experienced labor counsel to protect their interests.

If you have any questions regarding the Kellogg decision, or any other labor and employment related matters, contact Masud Labor Law Group.

This article is published by the Masud Labor Law Group, and is intended as general information only.  This article is not intended to provide legal advice or opinion, as such advice may only be given when related to specific fact situations.  Questions or comments concerning this article should be directed to the Masud Labor Law Group, 4449 Fashion Square Blvd., Ste. 1, Saginaw, Michigan, 48603, (989) 792-4499.  E-Mail: .(JavaScript must be enabled to view this email address). ©Masud Labor Law Group 2011.  All rights reserved.  Reproduction of this article in whole or in part, without express permission from the Masud Labor Law Group is prohibited.

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