Unionized employers generally know that federal labor law prevents them from altering material terms and conditions of employment for the bargaining unit without first negotiating with the union. On September 10, the National Labor Relations Board overruled prior precedent that set a strict standard for such unilateral changes. In M.V. Transportation, Inc., the employer made a number of changes to workplace policies applicable to unionized employees without first notifying and bargaining with the union. The union filed an unfair labor practice charge with the NLRB, claiming that the changes violated the board’s “clear and unmistakable waiver” rule, which prohibited unilateral changes absent a provision in the collective bargaining agreement specifically granting the employer such authority.

The board held for the employer, overruling cases that applied the legal standard relied upon by the union. In its place, the NLRB set a lesser standard that allows the employer to make such changes if they fall under any provision of the agreement granting the employer rights to act unilaterally. In other words, if the changes fall within the scope of the bargaining agreement’s general grant of authority to the employer, the employer can make such changes without first bargaining with the union. Employers negotiating or renegotiating bargaining agreements should carefully review management rights provisions to determine if they provide authority to make changes considered by the company to be within its sole discretion.