Mar 5 2014
“No” Means “No” When a Party “Really” Says So | Employment Law
Author(s): Kenneth Wagner
The National Labor Relations Board (Board or NLRB) has long held that the purported waiver of a party’s statutory rights under the National Labor Relations Act (Act) is effective if and only if the relinquishment was “clear and unmistakable.” The Board, with court approval, has applied the waiver standard in all types of duty to bargain cases, including those involving an employer’s unilateral change based on a claim of contractual right.
In recent years, however, the Board’s utilization of its waiver analysis in such unilateral change cases has been criticized as unsound by a few circuits of the Courts of Appeals. In particular, the District of Columbia and Seventh Circuit have denied enforcement to decisions in which the Board applied a waiver analysis with respect to an employer’s unilateral change to a mandatory subject, where the employer was arguably privileged to make the change pursuant to a contractual provision. Under this view, the issue is whether or not the disputed action is “covered by” the labor agreement; the issue of waiver of the statutory right to bargain is not present because the parties have already exercised their respective rights in negotiating the contract.