Document Type



Published in: LABOR LAW STORIES, Laura Cooper and Catherine Fisk, eds., pp. 281-314, Foundation Press, 2005.


The Supreme Court decision finds an employer privileged not to bargain with the union over a decision to eliminate a portion of operations (by not renewing a contract with a particular customer), undertaken entirely for economic reasons turning not at all on labor costs, and without animus to the union. No such case has ever been presented to the National Labor Relations Board, and interviews with the principals reveals that these were not the facts of First National Maintenance either. The case was a carefully-constructed hypothetical that omitted key facts, such as the employer's history of illegal conduct to avoid recognizing the same union at other locations. Subsequent Board cases reveal that all real-world examples of employers that refuse to bargain over downsizing, also involve some combination of union animus, planning to do the work at another location, or attempts to avoid bargaining over clearly bargainable issues. The application of FNM to such cases remains conjectural. The drafting of the opinion is traced through Supreme Court memoranda and drafts and reveals no clear decision on the issues that actually arise. Issues that arise today involving union representation of janitors arise outside the FNM framework, notably whether to follow Canadian practice and typically find janitors employed, jointly or individually, by the owners of the building they clean.

Date of Authorship for this Version

April 2006