NLRB Decisions Curb Employers’ Ability to Make Unilateral Changes

​Two new rulings from the National Labor Relations Board (NLRB) prohibit employers from modifying employment terms, such as pay, schedules and benefits, during a gap between union contracts.

The rulings handed down on Aug. 30 overruled Raytheon, a 2017 decision that gave employers greater leeway to make unilateral changes affecting unionized workers during a contractual hiatus or during negotiations for a first contract. The ruling confirmed that employers cannot rely on a past practice of making unilateral changes before employees were represented by a union to justify unilateral changes after the workers have selected a bargaining representative. Allowing employers to do so would be inconsistent with Supreme Court precedent and undermine the pro-bargaining policies of the National Labor Relations Act (NLRA), the board said.

If union negotiations end or reach a stalemate, then the employer can legally alter pay rates and other terms of employment.

In the first ruling, Wendt, the board found that Wendt Corp., a Buffalo, N.Y.-based manufacturer, illegally laid off 10 workers during union negotiations in 2018. The company declined to comment on the case.

In the second case, Tecnocap, the NLRB overruled a different aspect of Raytheon that wasn’t addressed in Wendt. The board held that an employer’s past practice of unilateral changes that was developed under a management-rights clause cannot authorize unilateral changes made after a collective bargaining agreement expires and…