In a crucial development, the National Labor Relations Board (NLRB) has transformed the landscape for unionized employers trying to change terms and conditions of employment. According to recent decisions by the NLRB, unionized employers can no longer lawfully change these terms even if the changes were consistent with past practice, or if stated in an expired management rights clause. This regulatory shift nullifies current accepted precedent in this space.
These updates to regulations embody a more rigid approach, pushing employers towards collective bargaining with regards to changes in terms and conditions of employment. While in the past, employers could somewhat rely on the established ‘past practice’ or an existing (although expired) management rights clause to implement changes, this is no longer the case. It’s worth noting the profound legal impact these changes will precipitate, particularly for those legal professionals managing relations with unions.
The NLRB’s decision is expected to significantly impact employers’ flexibility. As illustrated in several instances, previously, employers managed to circumvent collective bargaining by arguing that they had maintained similar changes in the past or that the changes were backed by a management rights clause, albeit an expired one. Now, with the overruling of this precedent, employers will be hard-pressed to substantiate any change without resorting to collective bargaining.
Legal professionals advising corporations will need to be prepared to address these new dynamics. Crucially, the NLRB’s latest actions point towards a tightening of employer freedoms in relation to alterations in employment terms and conditions. Businesses and their legal counsel will need to familiarize themselves with the implications of these changes to ensure they are adequately equipped to navigate these potential obstacles.