§11.8 Unilateral Changes

LibraryLabor and Employment Law: Private Sector (OSBar) (2011 Ed.)
§11.8 UNILATERAL CHANGES

§11.8-1 In General

In general, an employer may not make unilateral changes with regard to employment conditions that are mandatory subjects of bargaining. NLRB v. Katz, 369 US 736, 82 S Ct 1107, 8 L Ed2d 230 (1962). Instead, the employer must give the union notice of the proposed change and must offer to meet and confer with the union about its proposals. This obligation exists not only during the term of a collective bargaining contract but also during negotiations after the contract expires. See §11.3-4(b).

An employer may, however, make unilateral changes in mandatory subjects of bargaining if the union declines to exercise or waives its right to bargain (see §11.3-3(b)), or when negotiations have reached impasse (see §§11.8-3(a) to 11.8-3(c)), or when "economic exigencies compel prompt action" (see §11.8-2).

An employer may also lawfully make unilateral changes in benefit plans of nonunit employees, even when is the change has some impact on unit employees. Torrington Co., Subsidiary of Ingersoll Rand Co., 305 NLRB 938 (1991).

A significant unilateral change in hours and working conditions is unlawful even if it affects only one employee of a bargaining unit.

Millwrights, Conveyors & Mach. Erectors Local No. 1031, 321 NLRB 30, 32 (1996).

A long-standing, albeit noncontractual, practice may not be unilaterally discontinued without bargaining. Verizon N.Y. Inc. v. NLRB, 360 F3d 206 (DC Cir 2004) (it was unlawful for a company to refuse to bargain over its decision to discontinue the company's long-standing practice of allowing employees to donate blood during work hours with no loss of pay). When the past practice of an employer has been to give annual wage increases based on merit, the employer cannot unilaterally discontinue them. NLRB v. Talsol Corp., 155 F3d 785 (6th Cir 1998). The National Labor Relations Board (NLRB) has agreed with an administrative law judge's decision that a past practice of only five years' duration had "ripened into a term and condition of employment that could not be changed without prior notice and bargaining." Media General Operation, Inc., 346 NLRB 74, 81 (2005), aff'd, 225 Fed Appx 144 (4th Cir 2007) (the past practice was to pay employees for time spent at bargaining sessions).

If a term or condition of employment concerns a "discrete recurring event" (such as an annually scheduled wage review and cost-of-living increase), the employer may lawfully implement a change in that term or condition after providing the union with reasonable advance notice and an opportunity to bargain about the intended change in past practice." Neighborhood House Ass'n, 347 NLRB 553, 554 (2006).

Without first bargaining with the union, an employer may not lawfully establish new work assignments, competency tests for new employees, or new qualifications for employment (such as a new rule requiring that employees possess a valid driver license as a condition of employment). Spurlino Materials, 353 NLRB 1198 (2009), abrogated, 130 S Ct 2635 (2010), aff'd on remand, 2010 NLRB LEXIS 224, 355 NLRB No. 77 (Aug 9, 2010) (the Supreme Court invalidated the NLRB decision because it was decided by only two NLRB members; on remand, the NLRB issued a new decision affirming the original NLRB ruling); Cardi Corp., 353 NLRB 966 (2009), abrogated, 130 S Ct 2635 (2010) (the Supreme Court invalidated the NLRB decision because it was decided by only two NLRB members; subsequently, the NLRB closed the case because the original decision resulted in some action that concluded the proceeding).

See §11.8-4 regarding an employer's bargaining duties and right to make unilateral changes in bankruptcy situations.

§11.8-2 Economic Exigencies Requiring Prompt Action

When "economic exigencies compel prompt action," an employer's duty to bargain may be excused and the employer may be justified in unilaterally implementing a change that would otherwise be a...

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