Labor Board Ditches the “Clear and Unmistakable Waiver” Standard in Favor of the Employer-Friendly “Contract Coverage” Test
2019 has been the “Summer of Love” for employers at the Trump-administration National Labor Relations Board (“Board” or “NLRB”). Over the past several weeks, the Board has issued a handful of employer-friendly decisions covering issues such as worker misclassification, the rights of union organizers and the appropriate scope of a proposed bargaining unit. Perhaps the most far-reaching of these decisions came down on September 10, when the Board eased a unionized employer’s ability to make unilateral changes to terms and conditions of employment. In M.V. Transportation, Inc. (368 NLRB No. 66), the Board overturned decades of precedent when it abandoned the “clear and unmistakable waiver” standard in favor of the “contract coverage” test for evaluating unilateral changes.
As background, under the National Labor Relations Act (“NLRA” or “Act”), an employer with a unionized workforce has a duty to bargain with the union over wages, hours, and terms and condition of employment. An employer that fails to meet its bargaining obligation and institutes “unilateral changes” to terms and conditions of employment violates the Act. The Board’s decision in M.V. Transportation changed the standard that the Board uses to evaluate unilateral changes. Continue Reading