3d Circuit Weighs In on Rejection of Expired CBAs from page 19 Implications of Trump The Trump decision represents a significant benefit to debtor/employers regarding expired-but-unfavorable CBAs. Without Trump, debtor/employers would be forced to bargain to an impasse. As previously noted, whether parties have reached an impasse is a fact-specific inquiry that might be difficult to determine, and might be contested. Moreover, it is difficult to bargain to an impasse in circumstances where one party is reluctant to bargain at all. In Trump, the bankruptcy court expressed concern that “while [the] Debtors were imploring the Union to engage with them in discussions, offering to meet ‘24/7’ ...

the Union was engaging in picketing, a program of misinformation ... and most egregiously, communication with customers who had scheduled conferences at the Casino to urge them to take their business elsewhere.”25 The bankruptcy court further noted that, as evidenced by these actions, the “Union was not focusing its efforts on negotiating to reach agreement with the Debtors.”26 Therefore, Trump provides a meaningful alternative for debtors in proceeding with efforts to modify continuing CBA terms in instances where unions appear to be “dragging their feet” or are otherwise reluctant to 25 See Trump, 519 B.R. at 82. 26 Id. negotiate.

Even in other types of circumstances, Trump may be valuable to debtors whose financial conditions require immediate changes. For example, in Trump, the court recognized that a § 1113 rejection is a “much quicker” process than the process contemplated by the NLRA. Of course, the rejection of an expired CBA does not end the debtor/employer’s relationship with its union or its employees. The union remains in existence, and the employees are still employed.

Yet, rejection permits the debtor/ employer to unilaterally impose changes in the terms and conditions of the employment of the union’s members in a manner that permits debtors to reduce significant and unsustainable costs that could otherwise inhibit reorganization efforts and lead to a liquidation. Conclusion As previously noted, the Trump decision reflects the first time that a court of appeals has ruled on the question of whether § 1113 extends to the continuing terms of expired CBAs. Going forward, it will be interesting to see how the Trump ruling will shape future bargaining negotiations, and whether other circuit courts will take a position on this divisive issue in the future. abi Copyright 2016 American Bankruptcy Institute. Please contact ABI at (703) 739-0800 for reprint permission. ABI Journal May 2016 73 .