Update Applicable to:
All employers.
What happened?
On August 30, the NLRB issued two significant decisions, Wendt Corporation and Tecnocap, LLC, both dated August 26, 2023, concerning employers’ duty to negotiate with unions before altering work conditions.
What are the details?
In Wendt, the Board reversed Raytheon Network Centric Systems (2017), which previously granted employers more leeway to make unilateral changes affecting unionized employees during contract gaps or initial contract negotiations. The Board stated that justifying discretionary unilateral changes during these periods as a “past practice” conflicted with the Supreme Court’s NLRB v. Katz (1962) ruling and undermined the National Labor Relations Act’s pro-negotiation principles. Wendt also reaffirmed the rule that employers cannot rely on past practices of making unilateral changes before employees were represented by a union to justify such changes after workers select a bargaining representative.
In Tecnocap, the Board addressed a different aspect of Raytheon. It held that an employer’s past practice of unilateral changes developed under a management-rights clause in a collective-bargaining agreement cannot authorize unilateral changes after the agreement expires and during negotiations for a new contract. The Board argued that the Raytheon ruling hindered the collective bargaining process by requiring unions to negotiate to regain lost employment terms and disincentivized unions from agreeing to management-rights clauses.
Additionally, on August 31, 2023, the NLRB expanded safeguards for individual worker protests in the case of Miller Plastic Products Inc. The Board overturned the precedent set by Alstate Maintenance, which previously determined that solitary worker protests, even if conducted within a group, did not qualify as “concerted activity” protected under the National Labor Relations Act (“NLRA”).
For more information, please see the links below:
What do employers need to do?
The NLRB’s rulings in Wendt, Tecnocap, and Miller carry significant consequences for employers. Wendt and Tecnocap pose challenges for unionized employers during first Collective Bargaining Agreement (CBA) negotiations, which can last years, as well as during discussions for successor CBAs. Meanwhile, Miller extends protections to both unionized and non-unionized workers participating in single-worker protests. Employers are advised to seek legal counsel to ensure their operational practices align with these new decisions and remain vigilant regarding potential future actions by the NLRB and its General Counsel.
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