NLRB Returns To Union-Friendly Standard “Clear And Unmistakable” Waiver

As previously reported, since President Biden’s appointment, the National Labor Relations Board (NLRB) has been systematically reversing Trump era policies and moving towards policies that are increasingly pro-union and employee-friendly. The impending end of Biden’s administration has not slowed these efforts. The NLRB reversed a Trump-era Board ruling on December 10, 2024 and returned to a standard that was more employee- and union friendly for determining whether unilateral workplace changes by an employer were illegal. The Board reverted to its “Clear Unmistakable waiver” standard in 2024. This standard requires employers to bargain with unions about mandatory bargaining subjects unless the collective agreement explicitly waives the right of bargaining. This heightened standard makes it much more difficult for employers to make unilateral changes to their operations.

Background

The National Labor Relations Act (“NLRA” or the “Act”) requires employers and unions to bargain in good faith with respect to wages, hours and working conditions (mandatory bargaining subjects). The parties’ collective bargaining agreements (CBA) are the result of this bargaining process. They contain the language that the parties agreed upon and serve as the physical manifestation of their bargained-for agreement. The language of the CBA determines the rights, duties, and obligations of each party under the CBA, and now under the Act. Before 2019, the Board used various forms of the “Clear Unmistakable” Waiver standard. The most recent version of this standard required the Board to ask and answer a question: “Does the CBA include a provision that addresses and governs the controversy?” If the answer was “No,” the Board concluded that the CBA did not govern the dispute and that the union had not clearly waived its statutory rights to bargain over the conduct of the employer. The NLRB adopted a new standard called “Contract Coverage”, which expressly rejected the previous standard. As we discussed previously, under this standard, the Board asked the following question: “Viewing the alleged change in the context of the terms of the parties’ CBA, is that purported change within the ‘compass’ or ‘scope’ of the contract’s provisions that grant the employer the authority to act unilaterally?” If the answer to that question was “yes,” then the employer’s so-called change may give rise to a contract dispute requiring an interpretation of the language of the CBA by an arbitrator, but it was not considered a unilateral change requiring pre-implementation bargaining because the parties had already bargained over the issue and because the dispute was “covered” and, thus, governed by the parties’ existing CBA.

Endurance Environmental Solutions

On December 10, 2024, the Board released its decision in Endurance Environmental Solutions, which expressly overruled MV Transportation, and returned to the “Clear and Unmistakable Waiver” standard.

This case was related to a dispute about the employer’s unilateral decision to install surveillance equipment in its fleet of trucks. This case was about a dispute over the employer’s unilateral decision to install surveillance equipment in its fleet of trucks. Five or six of those trucks are operated by members from the bargaining unit. The employer refused to bargain with the union about the decision to install cameras. The administrative law judge agreed that the employer had not given the union enough notice or an opportunity to bargain on the issue. However, the ALJ applied the “Contract Coverage” standard and found the employer did not violate the Act because the management rights clause of the CBA reserved the right to “implement changes in equipment” and thus the installation of cameras was “covered” by the contract and did not require pre-implementation bargaining.

However, upon Board review, the Democratic majority of the Board expressly rejected the “Contract Coverage” standard and overturned MV Transportation. The Board explained it would return to the “Clear Unmistakable waiver” standard and “look

at the precise wording in relevant contract provisions.” It also indicated that management rights clauses with no specificity would not be considered a waiver. The Board held that the employer violated the Act by failing to give the union notice and an opportunity to bargain over the decision. Accordingly, the Board held the employer violated the Act by failing to provide the union with notice and opportunity to bargain over the decision.

Of some note, the Board applied the decision retroactively to the specific case in Endurance Environmental Solutions, but it did not determine if the new standard would be applied retroactively for all cases pending.

Key Takeaways

With its decision in Endurance Environmental Solutions, the Board continued its efforts to push the pro-employee and pro-union agenda that has become a hallmark of President Biden’s term in office.

With the return to the “Clear and Unmistakable Waiver” standard, employers should carefully examine the language of any applicable CBA’s before taking any unilateral actions related to mandatory subjects of bargaining. Where a CBA does not include express language that waives the union’s right to bargain over these subjects, employers are cautioned that taking such an action could result in the union filing a ULP charge for those actions.[]While this decision presents challenges for employers, it may be short-lived. It is expected that the newly-constituted Trump administration Board will move quickly to implement a pro-business agenda, and work to reverse many of the Biden administration’s key policies.

Typically, it takes time for a new president to substantially alter the composition of the Board. The Senate, however, failed to confirm Lauren McFerran, the current NLRB chairman, to a second term only one day after this decision was made. The Senate must confirm her nomination within the remaining days of the current session. Otherwise, Lauren McFerran’s term will end December 16, 2024. President-elect Trump would then be able to quickly secure a Republican majority in the five-member Board. Which means that the decision in Endurance Environmental Solutions may be a fleeting last gasp for the current Democratic majority of the Board.

We will continue to monitor for any new developments.