Nlra Case Notes

• Citation: Vol. 38 No. 2
• Publication year: 2024
• Author: Jeffrey S. Bosley

NLRA CASE NOTES

AUTHORS^*

Jeffrey S. Bosley

Tyler Maffia

UNION'S RIGHT TO BARGAIN NOT WAIVED BY ZIPPER CLAUSE

Twinbrook OpCo, LLC, 373 NLRB No. 6 (2023)

In a unanimous decision, the National Labor Relations Board (NLRB or Board) held that an employer could not unilaterally cease pay differentials when a collective bargaining agreement (CBA) was silent on the issue and contained a "zipper" or integration clause.

In this case, the employer purchased and continued operating a facility as a skilled nursing provider. Prior to the purchase, the employer offered employees continued employment at their same rate of pay and continued the practice of paying shift differentials for second and third shifts. At the time of the transfer, the union was the exclusive collective bargaining representative of a group of employees at the facility, but an initial CBA had not been reached.

Shortly after the transfer, the employer increased existing differentials and added a new weekend differential. The employer and union reached a CBA two months later. Shift differentials were not discussed in negotiations, nor were they listed in the CBA. The employer continued the differentials for one pay period after the CBA took effect, then unilaterally eliminated them for certain unit employees.

The general counsel of the NLRB alleged that cutting the differentials constituted a unilateral change in violation of Section 8(a)(5) of the National Labor Relations Act (NLRA)¹ because the parties' agreement did not terminate the differentials or waive the union's right to bargain over them. The employer argued that the payments were not required by the CBA and that the CBA's zipper clause terminated the payments.

The parties jointly waived a hearing by an administrative law judge and the case was transferred to the Board with a stipulated record. The NLRB applied its two-prong contract coverage standard from MV Transportation, Inc.,² under which the Board examines the language of the CBA to determine whether the employer's action was "within the compass or scope of contractual language granting the employer the right to act unilaterally." If it is not, then the employer must demonstrate that the union clearly and unmistakably waived its right to bargain over the change or that its action was privileged for another reason.

Here, the Board found the employer did not satisfy either prong. The elimination of shift differentials was not within the scope of any contractual provision authorizing unilateral...