Many employers loathe the prospect of unionization due to the
potential of a union hampering such employer's ability to make
operational changes to adapt to business demands. Many employers
signatory to a collective bargaining agreement experience firsthand
the restrictions of antiquated contract language that prohibit
unilateral operational changes.
For decades, the National Labor Board ("NLRB" or
"Board") utilized a narrow interpretation of the National
Labor Relations Act ("NLRA" or "Act") when
evaluating whether an employer was required to negotiate with a
union about a particular topic. Called the "clear and
unmistakable waiver" standard, that approach generally
hindered an employer's ability to make changes. In MV
Transportation, Inc., the Board dispatched with the
"clear and unmistakable waiver" standard and adopted the
broader "contract coverage" standard previously
championed by the D.C. Circuit Court of Appeals.1
