An NLRB policy released in late October will send more “unilateral change” disputes to arbitration. Generally, employers may not make unilateral changes to working conditions unless the union has agreed to waive its right to bargain over the issue. In MV Transportation (decided in September), the Board changed its test for waiver from whether the union “clearly and unmistakably” waived its right to bargain to whether the plain language of a CBA lets the employer act unilaterally.
A union or individual employee who believes an employer has made an improper unilateral change may file a charge with the Board, a grievance under the CBA, or both. If they do both, the Board normally will defer to arbitration under the Collyer doctrine. Under the Board’s new policy, the Board may also defer even if no grievance has been filed. However, the Board will not defer if both the employer and the union object to arbitration.