NLRB loosens restrictions on an employer’s ability to modify wages, hours and working conditions during the term of a CBA

Historically the Board has permitted an employer to change wages, hours and working conditions during the term of a CBA if it can prove a “clear and unmistakable waiver” by the union permitting the change. An example of a “clear and unmistakable waiver” would be contract language expressly authorizing a company to modify the cost of health insurance up to a certain maximum during the term of the CBA so long as the same modification was imposed on non-union workers. That would be just one kind of clear and unmistakable waiver.

Now, the Board will apply a “contract coverage” standard. This is the same standard that has been applied by the D.C. Circuit. Under the “contract coverage” standard, the Board won’t look for language as “clear and unmistakable” as previously required, rather it will ask whether the plain language of the contract seems to “cover” an employer’s right to act unilaterally. The Board believes this approach is not only more consistent with the National Labor Relations Act but reinforces the role of an arbitrator — not the Board — as interpreter of the CBA; in other words, if an employer believes it has contract language authorizing it to make a change, it should be for an arbitrator, not the Board, to be the primary decider whether or not the CBA was breached by the change.

Source: M.V. Transportation, Inc., 368 NLRB No. 66 (2019).