NLRB Holds Employer Accountable for Some Unlawful Bargaining Tactics

ExxonMobil Research & Engineering Company, Inc., 372 NLRB No. 138 (Aug. 25, 2023) arises out of bargaining a successor collective bargaining agreement (“CBA”) between ExxonMobil (“Exxon”) and the Independent Laboratory Employees Union.  Prior to the start of negotiations, Exxon subcontracted out bargaining unit work, changed the process for approval of paid time off (“PTO”) requests for union-represented employees, offered 8 weeks of paid parental leave to all non-union employees, and unilaterally changed performance evaluation methods for union-represented employees.  The Union filed unfair labor practices alleging numerous violations, including that Exxon engaged in overall bad faith bargaining.

Overall, the Board did not rule in the Union’s favor and this case is a reminder of the cold reality that the Board often chooses not to step in to conclude an employer’s conduct rises to the level of bad faith bargaining, especially if the Parties manage to reach an agreement.

With respect to the performance evaluation allegation, the Board applied the contract coverage standard from MV Transportation.  Under that standard, the Board found no violation because it concluded that the CBA covered the change in question—the CBA said Exxon would “consult with” the Union prior to making changes to performance evaluation methods—and Exxon followed the CBA.  The Board reasoned that even if the “clear and unmistakable waiver” standard were applied (the “clear and unmistakable” standard applied prior to adoption of the MV Transportation “contract coverage standard”), the language of the CBA established a clear waiver of the Union’s right to bargain by only requiring Exxon “consult with” the Union prior to making changes.  In other words, the CBA language allowed Exxon to make such a change.

As to paid parental leave, the parties bargained over the benefit at the table.  Exxon told the Union they would have to give up a benefit of similar economic value to the paid leave, but refused to provide any information requested by the Union that would have quantified the value of the benefit.

Exxon then offered 1 week of paid parental leave (when it had provided 8 weeks to non-represented employees), and made a statement suggesting the union-represented employees would only get 8 weeks of paid parental leave if they decertified the Union.  The Board found only the statement to be unlawful because it conveyed to workers they would be better off without the Union.

The Board found that an Exxon communication to workers about an offer made at the table amounted to direct dealing, but since Exxon timely repudiated, or revoked, the communication and corrected it, there was no violation of the Act.

However, the Board did find some statements by Exxon to be unlawful, including a statement where Exxon representatives refused to bargain over the PTO approval process because the Union filed charges with the Board.

Notwithstanding all of the above conduct and numerous unlawful statements made at the table, the Board did not find that Exxon engaged in bad faith bargaining but instead engaged in lawful hard bargaining.   In determining whether a party engages in bad faith bargaining, the Board called willingness to reach an agreement a “key factor” and emphasized the fact that the Parties successfully resolved the vast majority of issues over the course of extensive bargaining sessions.