2nd Circ. Ruling Signals Decisive Shift To NLRB Contract Test
Labor and Employment attorney Frederick Braid authored a Law360 article discussing the 70-year-old waiver test employed by the National Labor Relations Board (NLRB) that has come under increasing attack in court. The test is used in making determinations about whether a party has waived its right to bargain over a mandatory subject of collective bargaining or whether a party is free to act unilaterally with respect to a term or condition of employment. In 2019, the NLRB abandoned the waiver test in favor of the contract coverage test, which was recently approved by the U.S. Court of Appeals for the Second Circuit. Mr. Braid details the language of both tests, explains the challenges the waiver test has been facing in various courts and shares the implications that will likely follow the shift towards the contract test.