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MV Transportation Inc. – NLRB Rules On Employer Unilateral Action

On Sept. 10, 2019, the National Labor Relations Board (NLRB) issued the MV Transportation decision and adopted the contract coverage standard in evaluating whether an employer’s unilateral action concerning terms and conditions of employment violates the National Labor Relations Act (NLRA) duty to bargain.

In coming to the decision, the board majority emphasized the collective bargaining agreement between the parties is the bargained-for deal and parties are entitled to the benefit of their bargain based on the language agreed to in the agreement. Therefore, the full effect should be given to the plain meaning of the collective bargaining agreement provisions. This is the essence of the contract coverage standard, which the NLRB adopted.

In essence, this decision provides a basis for unilateral implementation of policies, procedures, work rules, and attendance as long as the plain terms of the language in the collective bargaining agreement provides this right to the employer.

With this decision, it becomes important for an employer to set forth its intention to preserve the inherent rights to run its business. This is typically clarified in a strong management rights provision in the collective bargaining agreement. Language that clarifies certain specified management rights are the “sole and exclusive right” and management “shall have the right” to take certain actions unilaterally without further bargaining have now become more important and beneficial to management. With this decision, unions may become more aggressive in bargaining over management rights clauses.

It is also noted in this decision that if the CBA language is not clear on management’s right to unilaterally implement changes, the NLRB will determine if the union waived its right to bargain the implementation action. Under this waiver analysis, the NLRB will look at bargaining history (the parties never negotiated attendance policy), past practice (the employer has always unilaterally implemented working and safety rules without bargaining), the express terms of the collective bargaining agreement, or some combination of the three. Thus, it can be important to retain bargaining proposals, notes, and other documents to support a unilateral change.

While there was a dissent by a board member advocating a clearer and unambiguous waiver theory, this decision is clear where the collective bargaining language covers the unilateral act in question, the collective bargaining agreement has authorized the employer to make the disputed change unilaterally and not in violation of the NLRA.

Collective bargaining agreement language matters, and it is important to have someone with knowledge of this decision develop appropriate language in collective bargaining agreements to protect management’s right to operate business efficiently and productively.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume IX, Number 261


About this Author

Mike Hawkins, labor, employment, appellate practice lawyer, Dinsmore law firm

Mike Hawkins is a partner in the Labor & Employment and Appellate Practice Groups. He has extensive experience in all aspects of labor, employment law and ERISA litigation and appellate practice. Mike has argued two cases in the U.S. Supreme Court and many in-state and Federal Courts of Appeals. He has been selected by Best Lawyers as a top Labor & Employment lawyer every year since 1989. Mike is an arbitrator and mediator on the AAA panel.

Brian Moore, labor and employment litigator, Dinsmore Shohl law firm,
Of Counsel

Brian represents companies in labor, employment, and general litigation matters. His business-oriented approach enables him to guide clients through a myriad of challenges. Brian draws on his experience to help clients reach efficient resolutions -- or pursue litigation and trial -- as the situation warrants. Working with clients in the banking, insurance, retail, health care, energy, hospitality, and food and beverage industries, he has guided them through an array of issues, including discrimination, harassment, wage and hour, deliberate intent, unfair labor practice, union representation, injunction, and general litigation matters. He has substantial experience practicing in both state and federal courts, including trying cases to verdict, as well as practice before the West Virginia Human Rights Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board. He has also drafted and litigated employment and arbitration agreements, covenants not to compete, and various other contracts.