October 23, 2023 • News

Revised Standard on Employers’ Duty to Bargain

On August 30, 2023, the National Labor Relations Board (NLRB) revised the standard on an employer’s duty to bargain before changing terms and conditions of work. In Wendt Corporation, the NLRB overruled Raytheon Network Centric Systems (2017), which had given employers greater latitude to make unilateral changes affecting a unionized workforce during a contractual hiatus or during negotiations for a first contract. The Board reaffirmed that an employer may never rely on an asserted past practice of making unilateral changes before employees were represented by a union (when the employer had no duty to bargain) to justify unilateral changes after the workers select a bargaining representative. 
In Tecnocap, LLC, the Board overruled a different aspect of Raytheon in holding that an employer’s past practice of unilateral changes that was developed under a management-rights clause in a collective bargaining agreement cannot authorize unilateral changes made after the agreement expires and while bargaining for a new agreement is under way. For more information, see the NLRB press release.