The U.S. Department of Labor has adopted a new final rule increasing white collar exemption salary rates, which will take effect on January 1, 2020. Click here to read our client advisory about the new rule.
In another stunning and sweeping decision, The National Labor Relations Board (“NLRB” or “Board”) has overturned the “clear and unmistakable” waiver test and concluded that employers may make unilateral changes to terms and conditions of employment “covered” by an existing collective bargaining agreement.
For decades, employers had negotiated lengthy “management rights clauses” into collective bargaining agreements only to have the NLRB strike down a change made by the employer by finding that the union did not “clearly and unmistakably” waive its right to bargain about the change. For example, if an agreement indicated that an employer could issue and amend policies and rules, the NLRB would usually find a violation of National Labor Relations Act (“NLRA” or “Act”), unless the Board found that waiver “sufficiently specific” to encompass the change. In other words, employers would negotiate what they believed was an effective waiver, only to have their bargain disrupted by the union filing an unfair labor practice charge.
Under the new test, employers will be able to rely on a defense that the objected-to change was covered by the language of the collective bargaining agreement. In such cases, the Board will now “give effect to the plain meaning of the relevant contractual language” and find a change covered if it “falls within the compass or scope of contract language that grants the employer the right to act unilaterally.”
The significance of the NLRB’s decision is best encapsulated by dissenting Member McFerran’s characterization of it: “The implication of the majority’s new standard is clear: If a management-rights provision in a collective bargaining agreement is sufficiently general, it will permit an employer to act unilaterally with respect to any specific term or condition of employment that plausibly fits within the general subject matters of the provision.”
The National Labor Relations Board (“NLRB” or “Board”) has settled a long-brewing controversy over what constitutes “discrimination” with respect to non-employee access to employer property. Twenty years ago, the Board held in Sandusky Mall, 329 NLRB 618 (1999), that an employer discriminates against non-employee union representatives if it bars them from its property while permitting access to charitable and civic organizations.
The Sandusky decision was widely criticized in the United States Courts of Appeals. The decision also put employers in the unenviable position of weighing the legal risk of permitting the Girls Scouts and Salvation Army on their property. Today, the NLRB finally overruled Sandusky and adopted a definition of discrimination that accords with the prevailing view in the federal courts.
Now the NLRB will only find that an employer has discriminated in its denial of access to union representatives if it permits access to other organizations for similar types of activities. The Board no longer considers charitable, civic, and commercial activities to be similar to nonemployee union organizational activities. In applying its new rule to the case at hand, the NLRB found that Kroger did NOT discriminate when it barred non-employees urging a boycott of Kroger while permitting various charitable and civic entities on its property. In dissent, Member McFerran complained that the majority is issuing a series of cases making “it increasingly easy” for employers to exclude union organizers from property “open to the public”.