For many years, the NLRB has required evidence of a “clear and unmistakable” waiver by unions of the duty to bargain with management over workplace changes. Now, after prodding from some Courts of Appeals, the NLRB has changed its standard: employer changes to workplace conditions will only require evidence that the change is “covered” by a collective bargaining agreement. This means that the NLRB will not require hyper-specific language or other types of evidence to find a bargaining waiver on a certain subject.
Generally, once a union is certified as the employees’ exclusive bargaining representative, the employer cannot make any unilateral changes to wages or working conditions. It must bargain with the union over any changes to the workplace that affects mandatory subjects of bargaining, which can include obvious matters such as vacation time and retirement benefits, but can also include changes to the manner of production in some cases.
The duty to bargain over these subjects can be waived by unions. For instance, a union may decide that management’s workplace change is acceptable or that their attention is best directed elsewhere. There are also times, however, where a union seeks bargaining over an impending change, but the employer claims that that collective bargaining agreement allows it to take the action at issue.
Under the previous NLRB standard, the employer would need to point to specific language in the contract that allowed it to take the specific action at issue. However, under the “contract coverage” standard, the employer need only point to general language in the contract that covers the intended action.
For example, in a recent case the employer contended that the right to “adopt and enforce rules and regulations and policies and procedures” allowed it to establish an absenteeism policy. Under the “clear and unmistakable” standard, the Board would find that the right to adopt rules did not include absenteeism policies because that type of rule is not specifically mentioned. However, under the “contract coverage” standard, the right to adopt rules would include absenteeism policies.
Going forward, this standard will help employers make unilateral changes that it would have fallen victim to the clear and unmistakable standard of the past. Only time will tell how the Board will apply this new standard to cases involving language that is more general. We should expect that employers will try to make the most of this new precedent. Stay tuned.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.