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NLRB: New Law of Unilateral Changes

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There is a flurry of articles on the  NLRB decisions last week, reversing Obama-era rulings on the subjects of joint employers (Hy-Brand Industrial Contractors) handbook policies (The Boeing Co.) and the ‘micro-unit standard’ in representation cases (PCC Structurals Inc.)

Another case decided last week, which has not received as much attention, will have a very significant impact on employers whose employees are represented by labor unions.

Following in the same theme of the other decisions, that  Board determinations must foster stability in the workplace and  commonsense in the law, the Board, in a 3-2 decision,  returned to the 50-year-old precedent, that employers do not commit unlawful unilateral changes when they take employment actions or make revisions, which are consistent with well-established past practices. Such actions by employers are lawful under Board law,  even though the employers had not bargained with the unions that represent the  affected employees before the  action or revision was implemented.

The new decision reversed the 2016 Obama Board ruling that employers had  to bargain with the unions, before implementing employment revisions, even when such revisions were consistent with past practices of making similar revisions. Thus, where employers can show that, under the management rights clause in their union contracts or simply under  established policies, which had not  been  eliminated or specifically contradicted in the union contract, it has  consistently taken actions or made revisions in terms and conditions of employment, such actions or revisions would be found lawful under Board law.

This return to well established precedent, will eliminate uncertainty in the work place on the types of employment–related  decisions which employers can take without the need to bargain with the unions.