On Tuesday, December 10, the National Labor Relations Board (NLRB) issued a decision that will make it more difficult for a unionized employer to make unilateral changes to working conditions. The decision, Endurance Environmental, found here, overturns a Trump-era rule established in 2019 and returns to the “clear and unmistakable” waiver standard which had been in place for decades.

For background, an employer covered by a collective bargaining agreement may not make unilateral changes to the terms and conditions of employment unless (1) the employer has bargained over such changes with the union, or (2) the union has waived the right to bargain over such changes.

In a 2019 decision, MV Transportation, the NLRB rejected the then-current and well established “clear and unmistakable” waiver standard. In doing so, the Trump Board adopted a “contract coverage” test to determine whether, through a contract provision, a union waived its right to bargain over changes to the terms and conditions of employment. Applying the employer-friendly contract coverage standard, the Board would examine the plain language of a collective bargaining agreement to determine whether action taken by an employer was within the compass or scope of contractual language. If the answer was yes, the union had waived its right to bargain over those changes, and the employer had the right to take unilateral action.

The NLRB’s decision to return to the “clear and unmistakable” waiver test places a far greater emphasis on the precise wording of the relevant contract provision. Under this more union-friendly approach, the Board will not permit unilateral changes unless the employer is able to 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.” In other words, the parties’ contract must unequivocally and specifically reference the parties’ shared intent to permit unilateral employer action to make the particular change at issue. It is no longer enough that the contract simply “covers” the general subject of the potential unilateral change – rather, the contract must more specifically grant that right.  

Next month will see a second Trump Administration.  President Trump has the opportunity to appoint several new members and “flip” the Board from a majority of Democratic appointees to a majority of Republican appointees. This includes filling the soon-to-be vacant seat of the Biden-appointed Chair, Lauren McFerran, whose renomination bid was rejected by the Senate yesterday. It is expected (and virtually guaranteed) that the newly constituted Board immediately will begin to reverse many of the Biden Board’s most union-friendly and controversial decisions, swinging the pendulum back to a Board far more receptive to business interests.  It is also likely that President Trump will fire current NLRB General Counsel, Jennifer Abruzzo, if she does not resign first.  Thus, the return to the “clear and unmistakable” waiver standard likely will be short lived.

Ballard Spahr’s Labor and Employment Group will be issuing alerts on what else to expect from the new Board and how that will impact employers across the country, both unionized and non-union. Should you have any questions on this topic, please feel free to contact any member of our Group.