Monday Morning Minute
In This Issue
NLRB Returns to Balanced Collective Bargaining
California Delays Training Requirements for Sexual Harassment
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                  September 30 , 2019


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The Trump Labor Board recently issued two notable decisions returning additional balance to collective bargaining under the National Labor Relations Act ("NLRA" or "Act").  On September 10, 2019,  the Board jettisoned the "clear and unmistakable waiver" standard and adopted the broader, pro-business "contract coverage" standard previously championed by the D.C. Circuit Court of Appeals for determining when an employer must negotiate about changes to wages, hours, other terms and conditions of employment.  MV Transportation (2019).  This is a very important decision for employers in the middle of standard or longer-term contracts that need operational or other changes.  Three days later, on September 13, in Arlington Metals Corp, the Board considered, decided, and reemphasized: (1) that an employer's statements during bargaining did not amount to an asserted "inability to pay" which triggered an obligation to provide the union with the employer' financial information; and (2) that the employer did not engage in bad faith "surface" bargaining by refusing to make financial concessions during bargaining.

MV Transportation
Traditionally, the Board has found that an employer engaged in an unlawful unilateral change without bargaining unless the collective-bargaining agreement specifically refers to the topic of change or factual situation at issue, and the evidence shows  that the union has clearly and unmistakably waived its right to bargain about the subject.  The Trump Labor Board abandoned the clear and unmistakable standard because it had, inter alia, become indefensible and unenforceable.  Instead, the Board adopted the D.C. Circuit Court "contract coverage" standard under which "the Board will give effect to the plain meaning of the relevant contractual language, applying ordinary principles of contract interpretation and find that the agreement covers the challenged unilateral act if the act falls within the compass or scope of contract language that grants the employer the right to act unilaterally."

Because the "contract coverage" standard requires an examination of the plain language of the agreement only, the Board "will not require that the agreement specifically mention, refer to or address the employer decision at issue."  The Board stated, however, that if a collective bargaining agreement does not cover a disputed change, it will examine if the union waived its right to bargain over the change. If the contract coverage standard is not met, "the Board will continue to apply its traditional waiver analysis to determine whether some combination of contractual language, bargaining history, and past practice establishes that the union waived its right to bargain regarding a challenged unilateral change."  This is good news for employers now, but the approach can be unwound under a new administration.

Arlington Metal Corp.
In Arlington Metals, Trump Board revealed it desire to return the NLRB to a more neutral and balanced, business-friendly posture by reiterating its previous positions on the issues of "poverty pleas" and the duty to provide financial information, and "hard bargaining" versus the oft-accused charge of "surface bargaining".  In its review, the Board reversed the Administrative Law Judge, and found the following statements did not amount to a "poverty plea" or inability to pay requiring the employer to turn over its financials to the union: 
  • "Economic conditions had not changed, but if anything, they were weaker"
  • "doing the best it could and had kept everyone employed."
  • "Production volume was down" combined with possible "increased costs, increased taxes, and downward pressure on pricing."
  • Competitors were taking "business away" "business was moving" to others and other places
  • "business had softened" and "volume and price were down"
  • The employer was on a "melting"' "iceberg" and "business had changed."
The Board found the employer was not pleading poverty; only asserting that it needed to avoid competitive disadvantage,  Therefore, the employer had no obligation to provide the union access to its financial records. The Board found that even if the employer's statements amounted to a poverty plea, the employer had no obligation to respond to the union's "wide-ranging" financial request because the union failed to narrowly request "specific information" to validate its demand because of specific employer claims.
Regarding unlawful "Surface" bargaining versus lawful "Hard" bargaining, the Board found that the employer's rejection of the union's economic proposal and refusal to make anything other than "minor modifications" to its economic counterproposals did not amount to bad faith bargaining. Rather, it found that the employer's position was typical of the "hard bargaining" between the parties on its proposals, which was marked by "various states of deadlock for years," during which both sides only made "minor concessions."

Spognardi Baiocchi LLP has years of experience negotiating the most innovative, beneficial, and cost-cutting contracts for employers, and successfully defending against charges of bad faith bargaining.  Call us today to discover what we offer and secure your place.
California Governor Gavin Newsom signed SB 778 into law which took effect immediately.  In this new law, the sexual harassment prevention training deadline under SB 1343 is now extended until January 1, 2021 for all existing supervisor and non supervisor employees.  Please note the following has not changed: 

1. New non supervisory employees shall be provided training within six months of hire; and

2. New non supervisory employees still need to be provided training within six months of the assumption of a supervisory position.  

Also note that SB 778 does not impact the portion of the law addressing seasonal and temporary workers.  Beginning January 1, 2020 seasonal and temporary employees who are hired to work for less than six months must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first. 

New Deadlines

1. If company last trained employees in 2019, then SB 778 clarifies that company  has two years from the time employee was trained. 

2. If company last trained employees in 2018, then company should maintain their two year cycle and train in 2020 to be compliant with SB 778's new deadline of January 1, 2021.

3. If company was required to comply under old bill AB 1825, company should train those employees this year (2019) in order to maintain compliance with their two year cycle. 

Please note that this is a summary of some of SB 778's provisions.  Please refer to the full bill and legal counsel for discussions on how this may impact your company.  
SPOGNARDI BAIOCCHI LLP is  a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 
For more information on the firm, please go to our website at or Lisa at
DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and seek professional advice.