Nlra Case Notes

• Citation: Vol. 34 No. 1
• Publication year: 2020
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

Board Overrules Precedent and Adopts "Contract Coverage" Test in Unilateral Change Cases

MV Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019)

In a 3-1 decision, the Board overruled longstanding precedent requiring that a contractual waiver of the right to bargain be "clear and unmistakable." Instead, the Board adopted the D.C. Circuit's "contract coverage" approach to determine whether an employer's unilateral action violates section 8(a)(5) of the National Labor Relations Act (the Act).

Under the Board's former approach, adopted as early as 1949 and reaffirmed by a full Board in Provena St. Joseph Med. Ctr.,¹ a collective bargaining provision would not support an employer's unilateral change in a mandatory subject of bargaining unless the union's waiver of the right to bargain was "clear and unmistakable." However, the Board majority, relying on the D.C. Circuit's criticism of the standard, concluded that the standard was "in practice, impossible to meet."²

In finding that the "clear and unmistakable" standard failed to effectuate the purposes of the Act, the majority observed that the standard "typically results in a refusal to give effect to the plain terms of a collective bargaining agreement" and "writes out of the contract language the parties agreed to put in it."³ The majority also emphasized that the "clear and unmistakable" standard results in "perpetual bargaining at the expense of contractual stability and repose" since the "specificity demanded under that standard requires 'near-supernatural prescience for the parties to have foreseen . . . what . . . issues would a rise.'"⁴ Finally, the Board noted that the "clear and unmistakable" standard favored unions and thereby fostered a "one-sided jurisprudence" by imposing exacting scrutiny only to those parts of a collective bargaining agreement that purportedly authorize unilateral employer action.⁵

Under the Board's new "contract coverage" test, which the majority determined would apply retroactively to all pending cases, "the Board will examine the plain language of the collective bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally."⁶ This analysis "does not require that the agreement mention, refer to, or address the specific action the employer has taken."⁷ Only if the collective bargaining agreement does not cover the disputed unilateral change will the Board consider whether the union waived its right to bargain, in which case such a waiver must still be "clear and unmistakable."⁸ Applying the "contract coverage" test, the Board held that several provisions of the parties' contract, including the management rights clause, authorized the employer's unilateral changes to policies regarding work assignments, safety, and discipline.

Dissenting, Member McFarren stressed that the "contract coverage" test will "frustrate the bargaining process, inject uncertainty into labor-management relationships, and ultimately increase the prospect of labor unrest."⁹ She further noted that such an outcome will be exacerbated by the Board's recent decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), "which held that employers may lawfully continue making unilateral changes authorized by a management-rights clause, even after the collective bargaining agreement expires."¹⁰

Board Clarifies Community-of-Interest Test for Determining Appropriate Bargaining Units

The Boeing Co., 368 NLRB No. 67 (Sept. 9, 2019)

In a 3-1 decision, the Board held that a petitioned-for unit of two classifications at a Boeing production facility was not appropriate. In doing so, the majority clarified the Board's test from PCC Structurals, Inc.¹¹ for determining whether a petitioned-for unit is an appropriate one under the Act.

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Boeing manufactures commercial 787 aircrafts at a facility in South Carolina using a production-line process involving approximately 2,700 production and maintenance employees. Among those employees are approximately 178 Flight-Line Readiness Technicians (FRTs) and Flight-Line Readiness Technician Inspectors (FRTIs), who perform production and inspection work during the final stage of aircraft assembly. FRTs and FRTIs work in different departments, under different supervisory structures, do not interchange between classifications, and share nearly identical terms and conditions of employment with the remaining production and maintenance employees excluded from the petitioned-for unit.

In concluding that the...