A flurry of critical cases have issued out of the NLRB over the past two weeks. The latest is the Board’s decision in MV Transportation, 368 NLRB No. 66 (2019), and the Board’s decision provides critical cover to employers seeking to make changes to working conditions without first bargaining with an incumbent union. By way of background, the NLRA requires employers and unions to bargain in good faith with respect to wages, hours and working conditions (mandatory bargaining subjects). The end product of that bargaining process is the parties’ collective bargaining agreement (CBA), which serves as the physical embodiment of the parties’ bargained-for deal and contains the language on which the parties have agreed. It is that language that determines each parties’ rights, duties and obligations under the CBA and, now, under the Act. While it is well established that an employer does not violate the Act if the collective-bargaining agreement does, in fact, grant the employer the right to take certain actions unilaterally (i.e., without further bargaining with the union), unanticipated issues and controversies often arise over whether an employer’s conduct is permitted under the CBA or not. Indeed, despite the most careful drafting, there will be times when a CBA’s language, though perhaps arguably applicable to the given situation, will not be directly on point and/or require interpretation to determine the parties’ rights and obligations under the CBA. The question presented in MV Transportation concerns the standard the Board should apply to determine whether a collective-bargaining agreement grants the employer that right.
Continue Reading More Good News From The Board: NLRB Scraps The Clear And Unmistakable Waiver Standard For The Contract Coverage Test When Deciding Unilateral Change Cases