The NLRB on December 10, overruled a Trump NLRB precedent regarding unilateral action taken by employers. Prior to a decision in 2019 (MV Transportation, Inc. 368 NLRB 66), the standard applied by the Board to determine whether an employer may take an action without bargaining was the “clear and unmistakable waiver” test. In 2019, the Board adopted what has been called the “contract coverage test.” Under the latter, the standard was eased, and the employer could act unilaterally if the action came within the scope of contract language, such as a management rights clause.
The Board’s new decision (Endurance Environmental Solutions, LLC) returned to the old test and overruled the test enunciated in 2019. The Board will apply the “clear and unmistakable waiver test” again. This test makes it more difficult to unilaterally impose a term or condition of employment in the face of a demand to bargain over the change. Employers will have to prove that the union essentially waived its right to bargain over the specific change. The Board believes that the old test better balances the goals of the National Labor Relations Act of promoting labor stability and encouraging collective bargaining.
The Board further punted on the issue of whether the old (now new) standard will be applied retroactively or prospectively only. That issue was left to future determination.
Not all the Courts of Appeal follow the “clear and unmistakable waiver test” so the future of the Endurance case remains to be seen. Future litigation will tell.
A subplot of this decision is how far the courts will defer to the Board’s interpretation of the Act considering last term’s US Supreme Court decision which trimmed deference to administrative interpretation of enabling statutes.
Once again, the labor landscape continues to be full of mines through which the Employment and Labor Law Team of Sandberg Phoenix can help employers navigate.
