On December 10, 2024, the National Labor Relations Board (“NLRB”) delivered its decision in Endurance Environmental Solutions, LLC (Case 09-CA-273873 ), reinstating a prior NLRB standard pertaining to an employer’s obligation to bargain over changes to employees’ working conditions. The Endurance decision comes as no surprise, given the NLRB’s series of pro-union decisions on the eve of the county’s changing political landscape.
In Endurance, the Board overruled MV Transportation, Inc., 368 NLRB No. 66 (2019), which had been decided under Trump’s first administration, and which reinforced an employer’s ability to manage their union workforces. Pursuant to MV Transportation, the Board would apply the “contract coverage” test, and employers could argue that unilateral changes to working conditions were permissible if within the compass or scope of contract language, or through the parties’ bargaining history, whereby the issue was discussed and that the union waived its interest on the issue. An employer could thus defend against a union allegation that a unilateral change or refusal to bargain did not violate Section 8(a)(5) of the Act on the basis that the union waived the right to bargain.
Endurance found that the “contract coverage” test undermined the National Labor Relations Act’s “central policy of promoting industrial stability by encouraging the practice and procedure of collective bargaining.” In making its decision, the Biden Board found that the “contract coverage” test “paid insufficient heed to the Act’s policies favoring collective bargaining and Supreme Court precedent addressing waivers of statutory rights.” The Board found that “MV Transportation rest[ed] on mistaken premises” and ultimately restored the “clear and unmistakable” standard consistent with U.S. Supreme Court and historical Board precedent, citing the decision NLRB v. C & C Plywood, 385 U.S. 421 (1967).
Endurance stated that a “clear and unmistakable waiver” standard was “one of the oldest and most familiar of Board doctrines.” This standard calls for specificity in union contracts to show whether a union has contractually waived the statutory right to bargain, despite any strong management rights language. In evaluating whether there has been a clear and unmistakable waiver, “the Board looks to the precise wording of relevant contract provisions.”
The Board made the new standard to apply retroactively in Endurance, but failed to clarify whether the new standard would apply retroactively in all pending cases. In addition, the law remains that“[a] waiver of bargaining rights may also be evidenced by bargaining history, but the evidence must show that the specific issue was “fully discussed and consciously explored” during negotiations and that “the union consciously yielded or clearly and unmistakably waived its interest in the matter.” E. I. du Pont de Nemours & Co., 368 NLRB No. 48.
Although CDF anticipates a dramatic shift of Board decisions under Trump’s upcoming term in 2025, for now, pursuant to Endurance, employers with union workforces should proceed with caution—the NLRB will not readily infer any contractual waiver of union employees’ statutory right to bargain and will instead require such a waiver to be “clear and unmistakable.” Even employers with collective bargaining agreements that have management rights language will not necessarily be guaranteed that they can demonstrate a waiver of bargaining rights, especially if the language does not make the waiver “clear and unmistakable.” While this standard will likely change at some point under the Trump Board, the NLRB administrative law judges will be required to follow Endurance until a new precedent is established.
