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NLRB adjusting standard on unionized employee changes

Posted On: Sep. 10, 2019 5:38 PM CST

union employees

The National Labor Relations board said Tuesday it is introducing a new policy that, it is charged, will make it easier for unionized employers to make unilateral changes in employment terms and conditions.

The board, which has a Republican majority, said in its ruling the “clear and unmistakable waiver” standard should be “abandoned” and replaced with a “contract coverage” standard.

Under the “clear and  unmistakable waiver” standard the board has been applying, an employer making changes was found to have violated the National Labor Relations Act unless a collective bargaining agreement provision “specifically refers to the type of employer decision“ at issue “or mentions the kind of factual situation” the case presents.

Under the new contact coverage standard,  the Board “will examine the plain language of the collective-bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally,” said the NLRB in its ruling in MV Transportation Inc. and Amalgamated Transit Union Local #1637.

The board states the “clear and unmistakable waiver” standard “is not the standard applied by courts (or arbitrators) when interpreting collective-bargaining agreements and several courts of appeal have expressly rejected” that standard and adopted the “contract coverage” standard instead.

The case involved the Las Vegas-based union local’s objection to several changes proposed by Las Vegas-based MV Transportation Inc., which operates a transmit system.

The change was approved over the partial dissent of the board’s lone Democrat, Lauren McFerran, who said it “gives employers wide berth to make unilateral changes in represented employees’ terms and conditions of employment without first bargaining with their union” and “presents a grave threat to the practice of collective bargaining in the United States.”

The NLRB said last week it is inviting businesses to weigh in on the issue of whether the National Labor Relations Act protects employees who use profanity at work.