GOP-controlled labor board makes it easier for employers to undermine union contracts


According to the National Labor Relations Board, it's fine for employers to alter their contracts with employees, even if they don't talk to the union about it.

On Tuesday, the GOP-dominated National Labor Relations Board made it a lot easier for employers to change the terms of employee contracts, even when the union doesn't agree. It's just the latest way in which Republicans continue to dismantle union protections.

Theoretically, collective bargaining between an employer and a union means that the employer can't just change the terms and conditions of employment. Instead, changes to the union contract have to be negotiated and agreed upon by both parties.

Sometimes, though, the parties don't negotiate all possible employment terms, so employers try to change those terms without talking to the union. Before Tuesday's decision, employers could only do that if they could show a "clear and unmistakable waiver." That standard requires employers to prove the contract itself specifically waived the union's right to negotiate over the employment terms at issue.


That's a strong standard that protects union workers from companies unilaterally imposing changes on employees. Naturally, companies don't like this standard. They've pushed for a weaker standard called "contract coverage."

Under that standard, the inquiry is whether the matter is included in the contract itself. Take, for example, a collective bargaining contract with a broad provision allowing management to "establish reasonable rules and regulations regarding the operation of the facility and employee conduct." Management could later decide that firing people for off-duty drug use fell under "employee conduct."

Under the waiver standard, management would have to show that the union clearly waived any bargaining over the issue of off-duty drug use. However, under the more lenient contract coverage standard, management can point to the "employee conduct" language and say that the union did negotiate that term and failed to say off-duty drug use didn't fall under "employee conduct." Then, management can alter the conditions of "employee conduct," and the union can't do a thing.

It might sound dry, but this is a huge shift in labor law and it overturns a doctrine that has been in effect for 70 years. It tilts the playing field dramatically in favor of the employer.

This came about because, of the four current NLRB board members, three of those are Republicans and very pro-management. With that, it's not all that shocking that the board would issue a 3-1 decision that so thoroughly undercuts the rights of union workers.

Earlier this month, the Board's three Republican members issued another decision designed to undercut unions. The Kroger decision said it was fine for an employer to bar nonemployee union representatives from soliciting on the premises even if they let other charitable or commercial groups solicit there. In other words, it's fine to bar unions even if the company doesn't bar anyone else.

With the GOP holding the reins for the next couple of years, you can expect even more anti-labor decisions from the National Labor Relations Board.

Published with permission of The American Independent Foundation.