07/11/2025: Complicated Failure-to-Bargain Case
Lack of quorum still does not halt representation cases.
Indiana Bell Telephone Company, Inc., JD-56-25, 25-CA-285855 (ALJ Decision)
This case involves a dispute between Indiana Bell Telephone Company, Inc. and The Ohio Bell Telephone Company (collectively "Respondent") and two local unions - Communications Workers of America Local 4900 and Local 4320 ("the Locals"). The case centers on the Respondent's implementation of new procedures for reporting and approving paid union time for local union representatives.
The Respondent and Communications Workers of America District 4 ("District 4") had a collective bargaining agreement (CBA) that included Article 10, which outlined circumstances under which union officials would receive paid time for union activities. Historically, local management officials had standing agreements with local union representatives that approved paid union time for various activities beyond what was explicitly stated in the CBA.
In February 2018, before negotiating a new CBA, Respondent notified District 4 of its intent to implement procedures to verify that payments for union time conformed to the CBA. Despite this notice, when the parties negotiated the 2018-2022 CBA, they made no substantive changes to Article 10. The past practices of approving paid union time at the local level continued after the new CBA was signed in August 2019.
In November 2019, Respondent initiated bargaining with District 4 about implementing a new reporting system for paid union time. After multiple bargaining sessions, Respondent declared an impasse in April 2021 and announced it would implement a new union time reporting form and matrix effective June 1, 2021. This implementation eliminated numerous local agreements and practices regarding paid union time.
The Locals requested to bargain with Respondent over these changes, arguing that Respondent needed to negotiate with them directly about local practices. Respondent refused, maintaining it had fulfilled its bargaining obligation by negotiating with District 4. The Locals also requested specific information about the new procedures, which Respondent failed to provide in a timely manner.
The ALJ found that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by:
Failing to bargain with the Locals before eliminating local agreements and practices regarding paid union time
Failing to provide requested relevant information to the Locals in a timely manner
Unilaterally changing terms and conditions of employment for local union representatives
The ALJ determined that while Respondent appropriately bargained with District 4 regarding the new reporting documentation, it had a separate obligation to bargain with the Locals over the elimination of local practices. The ALJ noted that Article 10.06 of the CBA explicitly allowed for local management to agree to pay for joint meeting time, which had historically been implemented through standing agreements at the local level.
The ALJ ordered Respondent to rescind the unilateral changes upon request, make whole any affected employees and the Locals for losses suffered, provide the requested information, and bargain in good faith with the Locals regarding local practices and agreements.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Established that unilateral action by an employer without prior discussion with the union amounts to a refusal to negotiate about affected conditions of employment.
Michigan Bell Telephone Co. & AT&T Services, Inc., 369 NLRB No. 124 (2020): Held that an employer cannot unilaterally change wages, hours, or working conditions of employee union representatives that have been established by practice.
Axelson, Inc., 234 NLRB 414 (1978): Determined that paid time for union functions "vitally affects" the relationship between employer and employee, making it a mandatory subject of bargaining.
BASF Wyandotte Corp., 276 NLRB 1576 (1985): Established that providing paid time for union representatives to administer a collective bargaining agreement is a mandatory subject of bargaining.
Sunoco, Inc., 349 NLRB 240 (2007): Defined a past practice as one occurring with such regularity and frequency that employees could reasonably expect it to continue on a regular and consistent basis.
Navistar Big Bore Diesels, LLC, 10-RC-368383 (Regional Election Decision)
On July 10, 2025, NLRB Regional Director Matthew J. Turner issued a decision directing a union representation election at Navistar Big Bore Diesels, LLC's facility in Huntsville, Alabama. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) filed a petition on June 30, 2025, seeking to represent approximately 229 employees at the facility.
The sole issue in dispute was whether the Regional Director had authority to process representation petitions when the Board lacked its statutorily mandated quorum of three members. As of January 27, 2025, the Board had only two Senate-confirmed members after the President removed Board Member Gwynne Wilcox.
The Regional Director rejected the employer's argument that Regional Directors lose their authority to process representation cases when the Board lacks a quorum. The decision explains that in 1961, the Board delegated authority to Regional Directors to process representation cases, and this delegated authority has never been withdrawn. The Regional Director cited extensive precedent establishing that the ability of Regional Directors to exercise delegated authority does not cease when the Board lacks a quorum.
The decision notes that the Supreme Court in New Process Steel addressed this issue, explaining that the conclusion that a delegee group ceases to exist without three Board members does not cast doubt on prior delegations to non-group members like Regional Directors.
The Regional Director directed an election for August 7, 2025, for a bargaining unit including all full-time and regular part-time production and maintenance employees at the Huntsville facility, including assemblers, machinists, maintenance mechanics, team leaders, inventory control coordinators, and quality control technicians. The decision excludes all salaried employees, clerical employees, engineers, professionals, confidential employees, managers, guards, and supervisors as defined by the Act.
The election will take place at the Customer Experience Center at the employer's facility with three voting sessions scheduled throughout the day to accommodate different shifts.
Significant Cases Cited
New Process Steel, LP v. NLRB, 560 U.S. 674 (2010): Established that the statutory language requires the Board to have at least three members to act.
Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Confirmed Regional Directors properly process representation proceedings by virtue of delegated authority despite Board lacking quorum.
UC Health v. NLRB, 803 F.3d 669 (DC Cir. 2015): Upheld that Regional Directors' delegated authority continues when Board lacks quorum.
Magnesium Casting Co. v. NLRB, 401 U.S. 137 (1971): Upheld the Board's 1961 delegation of authority to Regional Directors.
NLRB v. Bluefield Hospital Co., LLC, 821 F.3d 534 (4th Cir. 2016): Affirmed Regional Directors' continued authority to exercise delegated powers despite Board lacking quorum.