NLRB Limits Employers' Right To Make Unilateral Changes Based On Past Practice

• Published date: 13 September 2023
• Subject Matter: Employment and HR, Redundancy/Layoff, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Mr Adam-Paul Tuzzo, Jason Stanevich and Lauren E. DiGiovine

In two recent decisions the National Labor Relations Board overruled precedent that had allowed unionized employers to lawfully change terms and condition of employment if the changes were consistent with past practice or an expired management rights clause.

Contrary to Raytheon Network Centric Systems, 365 No. 161 (2017), the Board held in Wendt Corp., 372 NLRB No. 132 (2023) that employers may no longer lawfully make unilateral changes to terms and conditions of employment by showing that they are similar in "kind and degree" to changes the employer had a practice of making previously.In the same decision the Board also held that an employer may not defend an unfair labor practice charge alleging that a unilateral change violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by citing a past practice of making such changes before the union was certified. In a separate decision, Tecnocap LLC, 372 NLRB No. 136 (2023), the Board held that discretionary changes made pursuant to the terms of an expired management rights clause are unlawful.

The Board Sways Over What it Considers a "Change" to Employment Conditions

Sixty years ago, the Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962) held that an employer must refrain from making...