This week, in an expected decision, the National Labor Relations Board (“NLRB” or “Board”) reinstated its prior “clear and unmistakable” waiver standard—a standard that has been much criticized by the courts—for determining when an employer’s unilateral change to terms and conditions of employment violates the National Labor Relations Act (“NLRA” or “Act”), asserting that the Board’s recent adoption of the “contract coverage” standard was made in “error.”
As we recently reported, the future of the Democratic majority at the NLRB remains in considerable doubt as we head towards President-elect Trump’s inauguration. NLRB Chairman Lauren McFerran’s term is set to expire in 3 days on December 16, 2024. U.S. Senate Majority Leader Chuck Schumer’s (D-N.Y.) motion for cloture to proceed to a nomination vote on McFerran’s reappointment failed on December 11. Given this uncertainty, this is one of what we expect to be many decisions issued by the NLRB in the coming days that continue its lengthy stretch of overturning existing Board precedent.
In Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024), the Board reconsidered the standard to apply in Section 8(a)(5) unilateral change unfair labor practice cases when an employer asserts the union contractually surrendered employees’ statutory right to collectively bargain over mandatory subjects.
Historically, the Board applied the “clear and unmistakable” waiver test to such contractual defenses, requiring “...
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