NLRB Trims Employer Right to Take Unilateral Action

September 25, 2023 by Andrew Baker

In another case overturning a Trump NLRB decision that deviated from established law, the Board has issued a decision eliminating employer reliance on past practices that involve discretion as a defense to unilateral action. The decision in Wendt Corp. overrules the 2017 Raytheon decision and restores a standard previously clarified by the Board in 2016: the law does not permit a unilateral change “informed by a large measure of discretion.” (See our previous posting)

In Raytheon, the Trump Board ruled that employers may lawfully make a unilateral change, even where the change is informed by discretion, so long as the change is similar in kind and degree to the changes made in connection with the employer’s past practice of such changes.

That ruling, the Board in Wendt announced, is contrary to decisions dating back to a 1962 Supreme Court holding that an employer may make a unilateral change without any bargaining with the union only when the change is consistent with longstanding past practice AND is not informed by a large measure of discretion.

Of course, a management rights clause may give the employer the right to act unilaterally during the term of a union contract, but that waiver of the union’s right to bargain ends when the contract expires. Thus, the Board has once again clarified that, absent an applicable management rights clause, employers may act unilaterally only when the conduct lines up with a pre-established practice that entails little or no discretion by the employer.

The Board also took the opportunity in this case to reiterate that employers can never defend a unilateral change by invoking a past practice that was developed before the employees were represented by the union.

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