November 12, 2018

November 12, 2018

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November 09, 2018

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The National Labor Relations Board Is Signaling A New Approach To Failure-To-Bargain Charges (US)

The National Labor Relations Board has recently signaled another key change for unionized employers. The Board may be on the verge of significantly expanding employers’ key defense to alleged failure-to-bargain unfair labor practice charges.

Historically, the Board has made it particularly difficult for a unionized employer to adjust or update its operations in a way that affects employees. At default, when a union represents a group of employees, their employer must bargain with that union before taking any action that would change the employees’ working conditions. This duty to bargain potentially can restrict an employer in a broad range of ways, including with respect to decisions that might affect employees’ job duties, shifts, training, standards of conduct, and benefits. The Board has required employers to bargain over changes as minor as the prices of food in vending machines.

Although the Board recognizes certain exceptions to this general rule, it has interpreted these exceptions in a very narrow way. For example, an employer may decline to bargain over a matter when the union has “clearly and unmistakably waived” its right to bargain, such as through certain contract language, past practice, or other conduct. The Board imposes a heavy burden on an employer to satisfy this waiver standard.  During the Obama administration, it was extremely difficult for an employer to establish a waiver unless it could show that the union took some affirmative action to waive its right (rather than just sitting on its hands), and unless the union waived its right about the exact topic at hand. General conduct language, such as “management rights” language, rarely sufficed to establish waiver under the view of the Obama Board.

Now, the new Republican-majority Board is showing that it will interpret this standard in a way that better recognizes employers’ interests.  Of the Board’s three new Republican members, two have expressly written that they would like to reconsider the current waiver standard.  They also have shown that, in the interim, they will apply the waiver standard in a much more balanced way.  Most recently, in a decision this Fall (Weyerhaeuser NR Company, 366 NLRB No. 169), Board Member William Emanuel wrote that he “favore[ed] revisiting whether the Board should adopt the contract coverage analysis,” which is a more balanced corollary to the waiver standard.  Member Emanuel then interpreted the existing waiver standard in a much less restrictive way than the Obama Board, by opining that an employer does not necessarily need to identify specific, affirmative language or conduct in order to establish waiver. Rather, Member Emanuel opined that contract language could constitute a waiver if it simply covers the subject matter at issue and does not prohibit the employer from acting.

In a similar case, new Republican Member Marvin Kaplan opined he also would like to reconsider aspects of the waiver standard (Raytheon Network Centric Systems, 365 NLRB No. 161). Although Member Kaplan was discussing a narrower aspect of the waiver standard, he clarified that he would consider expressly changing the law on this issue. Then, like Member Emanuel, he wrote that he views the current waiver standard in a more balanced way than the Obama Board. For example, he opined that management rights clauses generally will constitute a waiver, and that other general contract language also may suffice.

In short, the Board’s new Republican majority has shown that it interprets this important standard much more evenhandedly than the Board interpreted it in the past. Moreover, there is a real chance that the Board will take a step further in the near future and expressly implement a new standard. These are all welcome signs for employers who must balance their bargaining obligations with their need to effectively and efficiently manage their operations.

© Copyright 2018 Squire Patton Boggs (US) LLP

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Of Counsel

Will represents employers in matters involving employees and labor unions. Will litigates a broad variety of labor and employment cases, including labor arbitrations, National Labor Relations Board (NLRB) proceedings involving unfair labor practice charges and representation issues, Section 301 lawsuits, wage and hour actions, wrongful discharge cases and lawsuits involving other labor and employment issues. Will also assists employers with collective bargaining negotiations, union avoidance, employee and supervisor training and other labor and employment counseling matters.

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