What happened?

On December 10, 2024, the National Labor Relations Board (NLRB) issued a decision in Endurance Environmental Solutions, LLC, restoring the “clear and unmistakable waiver” standard for evaluating employers’ contractual defenses against allegations of unlawful unilateral changes to working conditions for union-represented employees.

Overview

The National Labor Relations Board (NLRB) issued a decision in Endurance Environmental Solutions, LLC, restoring the “clear and unmistakable waiver” standard for evaluating employers’ contractual defenses against allegations of unlawful unilateral changes to working conditions for union-represented employees.

• The “new” standard will apply retroactively.
• This standard, followed by the Board for over 70 years and endorsed by the Supreme Court, requires explicit union consent for such changes.
• This reinstatement makes it more challenging for employers to make unilateral changes based on general contract language, emphasizing the need for clear and specific waivers in collective bargaining agreements.

Additional Details:

• Overruling MV Transportation: The decision overrules the 2019 “contract coverage” test from MV Transportation, which allowed broader employer discretion in making workplace changes without union bargaining.
• Promoting Collective Bargaining: The Board emphasized that the “clear and unmistakable waiver” standard better supports the National Labor Relations Act’s goal of promoting industrial peace through collective bargaining.
• Case Details: In the Endurance case, the employer installed truck cameras without union bargaining, citing a management rights clause. The NLRB found this did not constitute a clear waiver of the union’s right to bargain, thus violating the Act.
• Employers must show that any waiver of the union’s right to bargain is explicit and specific.
• Employers must maintain a duty to bargain- over the effects of any changes unless explicitly waived, even with a waiver.
• Employers should carefully review collective bargaining agreements for clear language waiving the union’s right to bargain over specific issues before making unilateral changes.

Source References

• NLRD Board Returns to ‘Clear and Unmistakable Waiver’ Standard
• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024) (Case 09–CA–273873) 

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