NLRB Overrules Unilateral Change Decisions

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Recently, the National Labor Relations Board overruled past precedent which had allowed employers to make unilateral changes during contract negotiations if such changes were based on past practice.


In Wendt Corporation, the Board overruled Raytheon Network Centric Systems, which had given employers greater latitude to make unilateral changes affecting a unionized workforce during a contractual hiatus or during negotiations for a first contract. The Board in Wendt also reaffirmed that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union to justify unilateral changes after the workers had selected a union.

In Tecnocap, LLC, the Board held that an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way. The Board’s rationale was that Raytheon harmed the collective-bargaining process by forcing unions to bargain to regain certain terms of employment lost to post-expiration unilateral changes, and discouraged unions from agreeing to management-rights clauses.

The takeaway from these two cases is that employers cannot rely on past practice to justify unilateral changes.

If you have any questions regarding union organizing or collective bargaining obligations or any other employment issues, please contact Fraser Stryker’s Labor and Employment lawyers.

This article has been prepared for general information purposes and (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Always seek professional counsel prior to taking action.

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