Board Returns to ‘Clear and Unmistakable Waiver’ Standard

Today, the Board issued its decision in Endurance Environmental Solutions, LLC. and restored the “clear and unmistakable” waiver standard for evaluating employers’ contractual defenses to allegations that they have unlawfully changed the working conditions of union-represented employees without first giving the union notice and an opportunity to bargain. Today’s decision restores that standard, previously followed by the Board for more than 70 years and endorsed by the Supreme Court.   

In Endurance, the Board overruled MV Transportation, Inc., 368 NLRB No. 66 (2019), in which an earlier Board had adopted the “contract coverage” test, which made it easier for employers to to avoid engaging in collective bargaining over workplace changes.   

The Board explained that the return to the “clear and unmistakable waiver” standard better accomplishes the central statutory policy goal of the National Labor Relations Act:  to promote industrial peace by “encouraging the practice and procedure of collective bargaining.”  The historical standard also better achieves consistency with Supreme Court and Board precedent and with the test applied by the majority of the federal Courts of Appeals in such cases.    

“Today’s decision makes clear that an employer has the obligation to bargain over changes to wages and working conditions, unless the union expressly yields its right to bargain over an employer’s decision,” said Chairman Lauren McFerran. “Returning to the clear and unmistakable waiver standard better serves the pro-bargaining policy of the Act.” 

Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.