Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer unlawfully modified labor agreement by unilaterally altering minimum wage provision, (May 1, 2026)

By Ronald Miller, J.D.

When the employer modified that agreement, over the union’s objection, at a time when the agreement remained in force, the employer substituted unilateral action for the process of collective bargaining that the Act is designed to promote.

A three-member panel of the NLRB ruled that an employer violated Section 8(a)(5) and (1) by modifying a master labor agreement within the meaning of Section 8(d) when it unilaterally altered the agreement’s minimum wage provision and inserted an extremely broad exigent circumstances clause. The Board observed that the portion of Section 8(d) cited by the employer clearly permits an employer or union to refuse to negotiate over the other party’s proposed midterm modifications to a fixed-term agreement. However, the Board reversed an ALJ’s findings with respect to the proposal’s provisions related to the election of the players committee, and a direct dealing with employees allegation (Garland Symphony Orchestra Association, 374 NLRB No. 103 (Apr. 30, 2026)).

The employer is a single employer comprised of three small symphony orchestras in the Dallas-Fort Worth area. The employer and the union were parties to a master labor agreement that contained durational and automatic-extension language.

In August 2017, the employer provided the union with notice of its intent to terminate the agreement effective August 31, 2021. On several later occasions, the employer reiterated to the union its prior notice that the agreement would expire on August 31, 2021. The parties mutually understood that the employer’s 2017 notice of intent to terminate the collective bargaining agreement on August 31, 2021, meant that the agreement would expire on that date.

The parties were engaged in negotiations over midterm changes to their master labor agreement in early 2020, when COVID-19 began spreading throughout the United States. The ensuing government restrictions on live entertainment resulted in the cancellation of the remainder of the employer’s 2019—2020 season and significantly affected its finances.

On June 17, the employer sent the union a proposed resolution of all the outstanding issues over which the parties were bargaining. However, before the union could respond to the offer, the employer withdrew its June 17 offer. In its place, the employer proposed a substantially revised collection of proposals, which included: (1) an exigent-circumstances clause giving the employer unlimited, unreviewable discretion to determine the existence of and response to emergencies, subject only to effects bargaining; (2) provisions related to the election of the players committee (i.e., the union’s on -site representative); and (3) cuts to the minimum pay rates for the 2020—2021 season.

The union rejected the proposals on July 20, offering a counterproposal on pay. The employer replied on July 24, stating that the parties were at impasse and that it would implement its last, best, and final offer, which contained the proposed revisions. The union responded on July 30, agreeing to some additional changes and offering counterproposals. It asserted that the employer did not have a right to implement the proposals without the union’s consent. On July 31, over the union’s objection, the employer implemented its proposals and sent out individual contracts, at least some of which reflected the reduced wage rates for the 2020—2021 season included in its final offer.

2008 Side letter. A 2008 side letter to the master agreement authorized the employer to grant musicians’ requests to be released for some or all of a season. In mid-August, a violist who had previously accepted an offer to play in the 2020—2021 season, expressed her concerns about performing during COVID-19 pandemic. The employee ultimately decided to request a release from her contract, and the employer granted it.

Mid-term modification. An administrative law judge concluded that the parties’ master agreement was in effect on July 31, 2020, when the employer modified the master agreement over the union’s objection. The ALJ rejected the employer’s claim that Article 15.14 of the agreement constituted a reopener provision that would have allowed it to implement changes to the agreement mid-term after bargaining to impasse. He therefore concluded that the employer violated Section 8(a)(5) and (1), within the meaning of Section 8(d), by modifying the agreement, mid-term, without the union’s consent.

On exception, the employer argued that Section 8(d)’s prohibition on midterm modifications is inapplicable. The Board was not persuaded.

First, the employer cited no precedent to support its view that Section 8(d)’s general prohibition against midterm modifications absent mutual consent is inapplicable if the contract is not of fixed duration. That interpretation of Section 8(d) is contrary to its plain text. The portion of Section 8(d) cited by the employer clearly permits an employer or union to refuse to negotiate over the other party’s proposed midterm modifications to a fixed-term agreement; a party may stand pat on the contract.

Second, the Board’s holding that the employer was not free to modify the master agreement on July 31, 2020, absent the union’s consent, was consistent with the policies of the Act. The Supreme Court has directed that, in interpreting Section 8(d), the Board is to be mindful of “a ‘dual purpose’ in the Taft-Hartley Act—to substitute collective bargaining for economic warfare and to protect the right of employees to engage in concerted activities for their own benefit.”

Here, interpreting Section 8(d) to permit the employer to modify the master agreement in July 2020 without the union’s consent would neither substitute collective bargaining for economic warfare nor protect the right of employees to engage in concerted activities for their own benefit.

It was collective bargaining that produced the master agreement, including its terms on wages, force majeure, and automatic extension. When the employer modified that agreement, over the union’s objection, at a time when the agreement remained in force, the employer substituted unilateral action for the process of collective bargaining that the Act is designed to promote.

Players-committee proposal. The ALJ also found that the employer unlawfully modified the master agreement in violation of Section 8(a)(5) and (1) and 8(d) by unilaterally imposing provisions related to the election of the players committee (i.e., the union’s on-site representative). In the course of doing so, the judge observed that “the composition of the Players Committee and its related selection procedures are nonmandatory subjects of bargaining.”

Here, the Board observed that the ALJ was correct that the employer’s proposal regarding the players committee was a nonmandatory subject. Because the provision concerned a nonmandatory subject, it necessarily followed that the employer did not violate Section 8(d) by modifying the provision. The Supreme Court has held that “a ‘modification’ is a prohibited unfair labor practice only when it changes a term that is a mandatory rather than a permissive subject of bargaining.” Therefore, the Board reversed the ALJ.

Direct-dealing allegation. The complaint alleged that, from about August 11 through 20, the employer “bypassed the [Union] and dealt directly with its employees in the Unit by communicating directly with employees regarding their ability to opt out of performances based on concerns related to COVID or to rescind their signed employment contracts.” Specifically, the General Counsel argued that the employer engaged in unlawful direct dealing by communicating directly with a violist about her ability to opt out of performing due to her concerns about COVID exposure rather than consulting with the union.

The employer defended its actions based primarily on the 2008 side letter, which authorized unit employees to request, and the employer to grant, a release from an individual employment contract.

Instead of resolving the issue alleged in the complaint and litigated by the parties, the ALJ found that the employer engaged in unlawful direct dealing by sending employees individual contracts with wage rates below the minimums specified in the master agreement.

In this instance, the Board agreed with the employer that the ALJ deprived it of its right to due process. The Board may find a violation not alleged in the complaint only if the issue is closely connected to the subject matter of the complaint and has been fully and fairly litigated.

Here, the unalleged violation found by the ALJ was not closely related to the complaint allegation, in that they were based on different communications, exchanged on different dates, involving different individuals and different subjects. At any rate, the unalleged violation was not fully and fairly litigated, since neither of the parties briefed the issue of whether sending musicians individual employment contracts with compensation lower than the minimum required by the master agreement amounted to unlawful direct dealing. Accordingly, the Board reversed the ALJ.

The slip opinion is 374 NLRB No. 103.

Attorneys: Bryan Dooley for General Counsel. David Watsky (Lyon, Gorsky & Gilbert) for Dallas-Fort Worth Professional Musicians Association, Local 72-147, American Federation of Musicians. Dan Hartsfield (Jackson Lewis) for Garland Symphony Orchestra Association, Las Colinas Symphony Orchestra Association and Symphony Arlington.

Companies: Garland Symphony Orchestra Association; Las Colinas Symphony Orchestra Association; Symphony Arlington; Dallas-Fort Worth Professional Musicians Association, Local 72-147, American Federation of Musicians

Cases: Labor UnfairLaborPractices Bargaining ContractClaims Covid19 AgencyNews