Input Stories

The National Labor Relations Board on Tuesday struck down a 2019 decision that gave employers more leeway in making changes to jobs without bargaining with a union (Law360, subscription). 
 
What’s going on: “The decision issued by the board’s Democratic majority … undoes a precedent the board put forth in 2019 in [the] MV Transportation [decision]. That decision said employers can make changes without bargaining so long as they are generally in line with the management rights provision in their contract.” 

• The board’s 3–1 decision held that “employers can make unilateral changes to working conditions only when unions have ‘clearly and unmistakably’ waived the ability to bargain over specific terms of employment” (Reuters, subscription). 
• The board’s one Republican member, Marvin Kaplan, said other courts have rejected the “clear and unmistakable” waiver standard and the MV Transportation standard has firmer legal standing and better respects the process of bargaining. 

Why it’s important: “The decision is a significant precedent shift by the board, as the MV Transportation decision gave employers more power than before to change working conditions in the middle of a [collective bargaining agreement].”  
 
What’s next: The NLRB will apply the decision retroactively in this case but leave for “future determination” whether it will also apply it to pending cases.  
 
However … All of the board’s recent lame-duck session decisions, including this week’s, “could be on the chopping block once Republican President-elect Donald Trump is able to install a Republican majority at the NLRB.”