Ninth Circuit Confirms Limits on Post-CBA Unilateral Changes

August 2, 2021 by Andrew Baker

Two years ago in MV Transportation, 368 NLRB No. 66 (2019), the Trump NLRB handed management a significant gift by adopting a new standard for applying contractual management-rights clauses to authorize unilateral actions during the term of a collective bargaining agreement (CBA). But the Ninth Circuit has now rejected an employer effort to extend this new doctrine to unilateral changes made after expiration of the CBA (NLRB v. Nextstar Broadcasting (7/12/21)).

For decades, the NLRB required very specific contractual language expressly waiving a Union’s right to bargain over a specific subject for an employer to lawfully make unilateral changes during the term of a CBA. The NLRB in MV Transportation shredded that doctrine and adopted a “contract coverage” test to determine if a CBA allows the employer to act unilaterally. After MV Transportation, if a management-rights provision in a CBA 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.

But would the Trump NLRB extend the rationale of MV Transportation to permit employers to continue to make unilateral changes after the CBA expires? The answer, thankfully, is no. In Nexstar Broadcasting, 369 NLRB No. 61 (2020), the Board ruled that provisions in an expired CBA do not cover post-expiration unilateral changes unless the agreement contains language explicitly providing that the relevant provision would survive contract expiration. The Ninth Circuit has now issued a decision enforcing the Board’s decision in Nexstar. So it is now clear that Unions can continue to argue successfully that management rights clauses go out the window when the CBA expires, forcing employers to bargain before making any changes that affect their members.

Unions are still cautioned, however, to be aware during the term of a CBA of the dangers lurking in broad management rights clauses.

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