On Tuesday, December 10, 2024, the National Labor Relations Board ("the Board") limited an employer's right to make unilateral changes in the workplace, restoring one of "the oldest and most familiar doctrines" in labor law: the clear and unmistakable waiver standard.
An employer makes a unilateral change when it modifies certain conditions of employment (mandatory subjects of bargaining) without bargaining with the union. The most basic example of a unilateral change would be an employer implementing a new pay schedule without notice to or bargaining with the union. For more than 70 years, employers could only make a unilateral change if there was clear and unmistakable language in the collective bargaining agreement waiving the union's right to bargain.
In 2019, the NLRB threw out the clear and unmistakable waiver standard to espouse the more employer-friendly "contract coverage test." MV Transportation, 368 NLRB No. 66 (2019). Under this standard, an employer could make changes to the conditions in the workplace so long as those changes were generally aligned with the management rights clause of a collective bargaining agreement. Following MV Transportation, the employer's unilateral change could possibly be covered by the management rights clause even if the contract did not "specifically mention, refer to, or address the employer decision at issue."
Endurance Environmental Solutions, LLC overturns the contract coverage test and returns to the stricter, more labor-friendly standard: the clear and unmistakable waiver standard. 373 NLRB No. 141 (2024). Now, an employer may only make a unilateral change if there is clear and unmistakable language permitting the action in the collective bargaining agreement. In Endurance, the employer had installed cameras to monitor employees and then refused to bargain with the Union over the camera installation and its effects. The employer argued that the right to install cameras was embedded in the management rights clause, which allowed the employer to "implement changes in equipment." Applying the clear and unmistakable waiver standard, the Board determined this language lacked the degree of specificity required to constitute a clear and unmistakable waiver of the Union's right to bargain.
While Endurance implements a pro-labor standard, it should be a return to familiar territory for employers, as the clear and unmistakable waiver test was in place from 1949 until 2019.
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