Labor Board Makes It Harder for Employers to Make Unilateral Workplace Changes: 5 Steps for Employers In a significant move in December, the National Labor Relations Board (NLRB) overruled a Trump-era ruling and made it more challenging for unionized employers to make workplace changes without bargaining over the change with the union. The decision in Endurance Environmental Solutions, LLC is the latest shift in the labor law pendulum, overturning an employer-friendly standard that smoothed the way for unilateral changes and instead restoring a stricter requirement for determining whether a union waived its bargaining rights. Moving forward, the Board will require evidence of a “clear and unmistakable” waiver before clearing employers to make workplace changes without negotiations. While the new Trump administration will flip the Board and install members who will return the playing field to an even level, you will need to comply with this new standard until this case is once again overturned. This Insight will review this decision and provide you five steps to adapt to this new landscape. Workplace Security Cameras Sparked Key Ruling The dispute arose between Endurance Environmental Solutions, a waste management company, and a Teamsters affiliate representing its Kentucky-based workers. Endurance allegedly installed security cameras in its trucks without first bargaining with the union, asserting that it had the authority under the CBA to make such a change unilaterally. The union argued that this move violated its collective bargaining rights, prompting an unfair labor practice charge. The critical question that would determine the case outcome: whether the union had waived its right to bargain over such changes in the agreement. • For over a decade starting in 2007, the NLRB maintained a “clear and unmistakable waiver” standard for answering this question. It allows employers to make unilateral changes only when a union clearly and specifically waived its right to bargain over that issue. • In 2019, the NLRB adopted the “contract coverage” standard. Under that test, the plain language of a collective bargaining agreement determined whether an employer could make unilateral changes to particular workplace terms. It gave employers the broad ability to run their operations – including workplace matters – without being hemmed in to negotiate about specific items. NLRB Goes Back in Time to Install Union-Friendly Standard The December 10 ruling reverted to the old “clear and unmistakable waiver” standard, making it more challenging for employers to make workplace changes without bargaining over the change. In this specific case, the NLRB found that the employer’s reliance on the contract’s management rights clause was insufficient to justify bypassing union negotiations.
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