Yesterday, in a stark reversal of its precedent, the NLRB discarded the “clear and unmistakable waiver” standard. Its replacement? An employer-friendly “contract coverage” standard to determine whether a unionized employer has improperly changed a policy or practice regarding a mandatory bargaining subject.
In MV Transportation, Inc., 368 N.L.R.B. No. 66 (2019), the NLRB upheld an employer’s unilateral changes to its policies on a number of issues. These included changes to policies addressing light duty work assignments, safety issues, and adherence to work schedules. The NLRB found that provisions in the management rights clause of the applicable collective bargaining agreement (“CBA”) allowed the employer to make these changes without bargaining with the union.
The NLRB stated that it will apply the “contract coverage” standard when an employer makes a unilateral policy change based on a claim that language in the CBA allowed the employer to make the change. When an employer defends a unilateral change on that basis, the NLRB will first apply ordinary principles of contract interpretation to the plain meaning of the CBA to determine whether the scope of the applicable CBA provision(s) permits the change. The CBA need not specifically mention the policy or issue that the employer has chosen unilaterally to change.
If the plain language of the contract does not permit the employer’s unilateral policy change, however, the standard will be different. In that case, the NLRB will examine the parties’ bargaining history and past practices regarding the issue. It will continue to ask whether the union clearly and unmistakably waived its right to bargain over the change at issue. Continue Reading