April 20, 2026|Franchise Frontlines
April 20, 2026 | National Labor Relations Board, Division of Judges | Administrative Law Judge Decision
Executive Summary
In a lengthy administrative decision, an NLRB Administrative Law Judge rejected claims that ASARCO LLC engaged in bad-faith bargaining in violation of the National Labor Relations Act and held that the company lawfully declared impasse and implemented its last, best, and final offer (“LBFO”). The General Counsel and multiple unions argued that ASARCO delayed negotiations, failed to provide timely information, and advanced predictably unacceptable proposals, thereby tainting the bargaining process and converting the resulting strike into an unfair labor practice strike. ASARCO countered that it engaged in good-faith negotiations over an extended period, made iterative proposals, and reached agreement on numerous issues, but ultimately faced entrenched union positions on wages, benefits, and pension. The ALJ agreed with ASARCO, finding no bad-faith bargaining and concluding that the strike remained economic in nature, permitting implementation of the LBFO.
Relevant Background
The dispute arose from negotiations between ASARCO and multiple unions representing employees across several facilities. The parties began bargaining for a successor collective bargaining agreement in 2018 and continued negotiations for approximately fifteen months. During that time, the parties engaged in dozens of bargaining sessions, exchanged multiple comprehensive proposals, and reached agreement on numerous non-economic provisions.
Despite this progress, the parties remained sharply divided on key economic issues, including wages, healthcare, pension benefits, and a proposed copper price bonus structure tied to attendance. ASARCO ultimately presented its LBFO in September 2019, maintaining that it had reached the limits of its concessions. The unions rejected the proposal and later initiated a strike, asserting that ASARCO’s conduct amounted to bad-faith bargaining and unlawful labor practices.
Following the strike, ASARCO implemented the LBFO and continued operations, including hiring replacement workers. The unions and General Counsel challenged both the bargaining process and the post-implementation conduct, alleging multiple violations of Sections 8(a)(1), (3), and (5) of the Act.
Decision
The ALJ’s analysis centered on whether ASARCO bargained in good faith and whether a lawful impasse existed at the time of implementation. Applying the traditional Taft Broadcasting framework, the ALJ concluded that ASARCO’s conduct, viewed in its totality, did not reflect an intent to avoid agreement or frustrate bargaining. Instead, the record demonstrated sustained engagement, repeated exchanges of proposals, and meaningful progress on numerous issues, even as the parties remained divided on core economic terms.
A significant aspect of the General Counsel’s theory was that ASARCO delayed providing its economic proposals and therefore failed to bargain in good faith. The ALJ rejected that argument, emphasizing that timing alone does not establish unlawful conduct where negotiations are ongoing and neither party has refused to engage on mandatory subjects. The decision noted that the unions initially presented only generalized demands for “substantial” wage increases without specific figures, limiting the ability to meaningfully negotiate economic terms early in the process. In that context, ASARCO’s sequencing of proposals did not constitute a refusal to bargain.
The ALJ also rejected claims that ASARCO’s proposals were so predictably unacceptable as to demonstrate surface bargaining. While the company maintained firm positions—particularly limiting wage increases to skilled employees and freezing pension benefits—the ALJ found those positions were consistently explained and grounded in business considerations. The decision emphasized that the Act permits parties to adhere to positions they reasonably believe to be appropriate, and that steadfast bargaining, without more, does not equate to bad faith.
With respect to impasse, the ALJ found that the parties were irreconcilably divided on critical economic issues, including wages, healthcare structure, and retirement benefits. These issues were central to the negotiations, and both sides maintained firm, well-defined positions despite extensive bargaining. The ALJ concluded that further negotiations would have been futile, satisfying the standard for a lawful impasse and permitting ASARCO to implement its LBFO.
The ALJ further determined that the strike remained an economic strike rather than converting into an unfair labor practice strike. Although the decision identified limited violations, including isolated interference with union literature and certain surveillance-related conduct, those findings were not sufficiently connected to the bargaining process or strike dynamics to alter the strike’s classification. As a result, ASARCO was entitled to treat the strike as economic and to retain replacement workers consistent with established precedent.
Looking Forward
This decision provides a detailed reaffirmation of the distinction between aggressive bargaining and unlawful conduct, and offers several practical takeaways for franchisors and multi-unit operators navigating labor negotiations. The ruling underscores that courts and the Board will examine the totality of the bargaining process rather than isolated tactics, and that a sustained pattern of engagement and proposal exchange can support a finding of good faith even where negotiations are contentious and prolonged.
The opinion also illustrates that employers may maintain firm positions on key economic issues without running afoul of the Act, particularly where those positions are consistently articulated and tied to operational or market considerations. The fact that proposals are unfavorable to a union—or even strongly resisted—does not, standing alone, demonstrate bad faith.
Importantly, the decision highlights the strategic role of information requests and proposal timing in modern labor disputes. Where information requests become expansive or iterative, employers may still satisfy their obligations by responding reasonably and in good faith, particularly when requests evolve during the course of negotiations. Similarly, the sequencing of economic proposals will be evaluated in context, rather than through rigid timing expectations.
For franchisors, the case reinforces the importance of disciplined, centralized bargaining strategies and consistent messaging across negotiating teams. Systems that rely on uniform operational standards may draw on this decision to support structured approaches to wages, benefits, and workforce management, so long as those approaches are supported by legitimate business rationales and communicated transparently during negotiations.
At the same time, the decision serves as a reminder that peripheral conduct—such as employee communications or site-level practices—may still create exposure if not carefully managed. Even where such conduct does not ultimately alter the outcome, it may complicate the litigation narrative and should be addressed through clear policies and training.
Ultimately, the ASARCO decision reflects a pragmatic application of longstanding labor principles: bargaining may be difficult, prolonged, and contentious, but where both sides engage seriously and remain anchored to defined positions on critical issues, the law will recognize when negotiations have reached their natural endpoint.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Partner at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
