The UFCW has created new guidelines to help locals comply with the part of the National Labor Relations Act (NLRA) that requires unions to give written notice within specific time frames to bargain new contracts.
Specifically, the NLRA requires unions to:
• Give written notice to companies to bargain new contracts at least 60 days before the contracts expire.
• Send written notices to the Federal Mediation and Conciliation Service (FMCS) within 30 days of the notice to the company, and at the same time, to any state agency that provides mediation or conciliation services.
• Provide the reopener notice for health care companies 90 days before contract expiration and the FMCS and state agency notices within 60 days following the reopener notice.
A key point to remember: Neither the National Labor Relations Board (NLRB) or the courts can order unions to pay damages to companies (such as lost profits) if unions fail to provide these notices within the required time frame. This is because the violation would be bad faith bargaining, not a violation that the NLRB might order a union to pay money for, such as an unlawful secondary boycott. For this kind of bad faith bargaining, the NLRB only orders the union to provide the notices when it reopens the contract in the future.
However, if unions fail to notify FMCS and the state mediation agency on time, companies can fire any worker who strikes for engaging in an unprotected strike. Companies can also fire any worker who strikes during the 60 days following the reopener notice or before the contract expires. Health care companies can fire workers for striking during the 90 days after the reopener notice or before the contract expiration. However, no company may fire a striker after the striker goes back to work or if the worker is protected by a back-to-work agreement.
To be safe, locals should err on the side of sending the notice to state agencies, even if the agencies don’t normally mediate private sector bargaining. To protect strikers, locals should provide a copy of the FMCS notice to all state agencies that might provide private sector mediation or conciliation services. If it’s unclear whether the state provides mediation or conciliation services, locals should send a copy of the FMCS notice to their state’s Secretary of Labor. Locals and their attorneys should also research whether their states have agencies that provide mediation or conciliation services.