NLRB Changes Course On Unilateral Employer Action Standard

Executive Summary: In a 3-1 decision, the National Labor Relations Board (NLRB or the Board) reversed long-held Board precedent regarding when unionized employers may unilaterally change a term or condition of employment without violating the National Labor Relations Act (NLRA or the Act). In doing so, the Board abandoned the “clear and unmistakable waiver” standard and instead applied the “contract coverage” standard. See M.V. Transportation, Case 28-CA-173726 (Sept. 10, 2019). In reaching this decision, the Board explicitly overruled its 2007 decision in Provena St. Joseph Medical Center, the last time the NLRB reaffirmed its adherence to the “clear and unmistakable waiver” standard.