NLRB Adopts New Unilateral Change Standard

In MV Transportation, the Board adopted the “contract coverage” analysis when determining whether a unionized employer’s unilateral change to employee working conditions violates the National Labor Relations Action (NLRA). In doing so, the Board overturned the “clear and unmistakable waiver” standard that had been rejected by several courts of appeals, particularly the D.C. Circuit, which has plenary jurisdiction to review all Board decisions.

Under the “contract coverage” standard, an employer’s unilateral change will not violate the NLRA if the change was “within the compass or scope” of the language in the agreement granting the employer the right to act unilaterally. If, however, the agreement does not cover the employer’s disputed action, the employer will have violated the NLRA unless it establishes that the union waived its right to bargain over the change, or that the employer was privileged to act unilaterally for some other reason (e.g., economic exigency).

This decision likely makes it easier for employers to make lawful unilateral changes, provided that the changes appear to be within the scope of the language in the agreement.