Make No Mistake: The NLRB Revives the ‘Clear and Unmistakable Waiver’ Standard

At a Glance

• With the revival of the 'clear and unmistakable waiver' standard, employers must negotiate precise contract language or demonstrate union waiver through bargaining history, while preparing for potential shifts in NLRB policy under a new administration.
• The NLRB’s decision to bring back the “clear and unmistakable waiver” standard directly overturns its previous 2019 decision, which implemented the “contract coverage” standard in its place.

One December 10, 2024, the National Labor Relations Board (NLRB) issued its decision in Endurance Environmental Solutions, LLC, upending its prior “contract coverage” standard for determining whether a unionized employer impermissibly implemented a unilateral workplace change in violation of its duty to first bargain such a change with the union. Such a change is now a failure to bargain under Sec. 8(a)(5) of the National Labor Relations Act (NLRA) unless there has been a “clear and unmistakable waiver” on the part of the union.

NLRB Reinforces Bargaining Obligations

Generally, the NLRA prohibits employers from unilaterally changing a term or condition of employment without first giving the union notice and the opportunity to bargain about that change. For example, the issue in Endurance Environmental Solutions, LLC concerned the decision to install cameras and other similar security and monitoring devices in its waste hauling trucks without first bargaining with its union. The employer believed it had the right to do so under its collective bargaining agreement, relying on a portion of its bargained-for management rights clause granting it the right to “implement changes in equipment.” The NLRB disagreed and instead found that the management rights clause in the applicable collective bargaining agreement lacked the specificity necessary to constitute a “clear and unmistakable waiver” of the union’s right to bargain over the decision.

'Contract Coverage' Standard Overturned

This major shift by the NLRB directly overturns its previous 2019 decision in MV Transportation, Inc., which had replaced the “clear and unmistakable waiver” standard with the “contract coverage” standard and allowed employers to make changes without bargaining as long as the changes were in line with a collective bargaining agreement (i.e., the contract already “covered” the issue often by way of a management rights clause, thus not requiring the employer to give the union another opportunity to bargain on the issue before implementing the change).  

For employers, the contract coverage standard was a welcome relaxation of the standard for lawful unilateral action. Prior to MV Transportation, Inc., employers had to bargain a “clear and unmistakable” waiver for each specific term and condition of employment that the employer thought it might need to unilaterally alter during the life of the contract — a strict standard that employers seldom met, and which often proved to be an unviable defense to a failure to bargain unfair labor practice charge.

What Employers Need to Know

Now, with the revival of the “clear and unmistakable waiver” standard, employers must again bargain for the “precise wording of the relevant contract provisions” that allow them to make such workplace changes or the bargaining history must otherwise demonstrate that the union “consciously yielded” and waived any interest in bargaining on the matter.

With a new administration incoming, the NLRB’s composition and policy prerogatives are likely to change significantly in the coming months and years. However, uncertainty around current and future appointments makes it difficult for employers to predict when the “contract coverage” standard may return. In the short term, however, employers should expect a new dynamic in bargaining, be ready to bargain for more detailed clauses to enshrine these rights and be mindful of this new development in evaluating potential changes to their policies and practices.

For More Information

If you have any questions about the “clear and unmistakable” waiver standard, or about any other management-side labor law issues, please contact one of the authors or any member of the Faegre Drinker labor management relations team.