In a pair of decisions issued on August 30, 2023, the National Labor Relations Board (NLRB) has introduced restrictive standards for assessing when a unionized employer can evade bargaining over alterations to employees’ terms and conditions of employment grounded on “past practice.” The new stipulations, reportedly, are a departure from the employer-friendly legal standard established by the Trump-era NLRB. They reflect the current Board’s commitment to compel employers to negotiate changes before they are implemented.
As reported in the JDSupra article, these noteworthy shifts are part of the latest pro-labor rulings by the NLRB, which significantly limit management’s ability to change Union worker’s employment terms without undergoing proper consultation. Certainly, these rulings have profound implications for all employers, particularly those in unionized industries.
- Under the newest rulings, employers are now expected to engage in good faith bargaining with the Union over any proposed changes to employment terms. These changes include ones that an employer might traditionally have made unilaterally based on a past practice exemption.
- Furthermore, it emphasizes that any departure from a clearly established and mutually accepted past practice can only be justified if the employer can demonstrate that the Union waived its right to bargain over the specific issue at hand. Hence, a broad disclaimer by the Union will likely no longer be considered sufficient. Employers must be able to show the Union’s explicit waiver relevant to each specific decision or action.
These new rulings mark a decisive shift in pro-union policy direction, underscoring the NLRB’s focus on augmenting the bargaining power of Unions and effectively balancing the scales of power between employers and their unionized workers.
The article encourages employers, especially those with unionized workforces, to understand the potentially profound impact of these rulings. It also advises a close review of business practices and policies to better navigate the changing labor relations environment. Efforts may be needed to renegotiate certain aspects of contracts, adjust decision-making processes, and re-examine past practices hitherto assumed to allow unilateral decision-making.