Littler attorneys discuss the Faster Labor Contracts Act and how it will potentially amend the National Labor Relations Act (NLRA).
Articles Discussing Collective Bargaining.
NLRB Reinstates Prior “Clear and Unmistakable” Standard For Waivers of Statutory Right to Bargain
By: NLRB Reinstates Prior “Clear and Unmistakable” Standard For Waivers of Statutory Right to Bargain
On December 10, 2024, the National Labor Relations Board (“NLRB”) delivered its decision in Endurance Environmental Solutions, LLC (Case 09-CA-273873 ), reinstating a prior NLRB standard pertaining to an employer’s obligation to bargain over changes to employees’ working conditions. The Endurance decision comes as no surprise, given the NLRB’s series of pro-union decisions on the eve of the county’s changing political landscape.
In Endurance, the Board overruled MV Transportation, Inc., 368 NLRB No. 66 (2019), which had been decided under Trump’s first administration, and which reinforced an employer’s ability to manage their union workforces. Pursuant to MV Transportation, the Board would apply the “contract coverage” test, and employers could argue that unilateral changes to working conditions were permissible if within the compass or scope of contract language, or through the parties’ bargaining history, whereby the issue was discussed and that the union waived its interest on the issue. An employer could thus defend against a union allegation that a unilateral change or refusal to bargain did not violate Section 8(a)(5) of the Act on the basis that the union waived the right to bargain.
Endurance found that the “contract coverage” test undermined the National Labor Relations Act’s “central policy of promoting industrial stability by encouraging the practice and procedure of collective bargaining.” In making its decision, the Biden Board found that the “contract coverage” test “paid insufficient heed to the Act’s policies favoring collective bargaining and Supreme Court precedent addressing waivers of statutory rights.” The Board found that “MV Transportation rest[ed] on mistaken premises” and ultimately restored the “clear and unmistakable” standard consistent with U.S. Supreme Court and historical Board precedent, citing the decision NLRB v. C & C Plywood, 385 U.S. 421 (1967).
Endurance stated that a “clear and unmistakable waiver” standard was “one of the oldest and most familiar of Board doctrines.” This standard calls for specificity in union contracts to show whether a union has contractually waived the statutory right to bargain, despite any strong management rights language. In evaluating whether there has been a clear and unmistakable waiver, “the Board looks to the precise wording of relevant contract provisions.”
The Board made the new standard to apply retroactively in Endurance, but failed to clarify whether the new standard would apply retroactively in all pending cases. In addition, the law remains that“[a] waiver of bargaining rights may also be evidenced by bargaining history, but the evidence must show that the specific issue was “fully discussed and consciously explored” during negotiations and that “the union consciously yielded or clearly and unmistakably waived its interest in the matter.” E. I. du Pont de Nemours & Co., 368 NLRB No. 48.
Although CDF anticipates a dramatic shift of Board decisions under Trump’s upcoming term in 2025, for now, pursuant to Endurance, employers with union workforces should proceed with caution—the NLRB will not readily infer any contractual waiver of union employees’ statutory right to bargain and will instead require such a waiver to be “clear and unmistakable.” Even employers with collective bargaining agreements that have management rights language will not necessarily be guaranteed that they can demonstrate a waiver of bargaining rights, especially if the language does not make the waiver “clear and unmistakable.” While this standard will likely change at some point under the Trump Board, the NLRB administrative law judges will be required to follow Endurance until a new precedent is established.
Sixth Circuit Clarifies Employer’s Bargaining Obligations During Public Health Emergencies
A recent Sixth Circuit decision provides some guidance to employers regarding bargaining obligations during exigent circumstances like the COVID-19 pandemic or other public health emergencies. In general, an employer can make unilateral decisions to address unforeseen circumstances that have a major effect on the economics of its operations, but this
Past Practice in the Past? NLRB Narrows Past Practice Defense for Employer Unilateral Action During Bargaining
On August 30, 2023, the National Labor Relations Board (NLRB) released two decisions that will make it more difficult for employers to implement past practices during a break in bargaining or at an impasse, opening the door for unions to hold employers hostage by dragging out collective bargaining.
NLRB follows the General Counsel’s Lead: Enhanced Remedies May Now Apply to Bad-Faith Bargaining
In Noah’s Ark, the Board combined remedies it can impose on an employer that engaged in repeated unfair labor practices. The decision may predict the expansion of remedies for bad-faith bargaining. The decision follows the trend of increasingly punitive and extraordinary remedies being implemented by the Board.
What Labor Board’s Return to Allowing Micro-Units for Bargaining Means for Construction Employers
The National Labor Relations Board has issued a decision that could be of significant aid to organized labor in reorganizing the construction industry. American Steel Construction Inc. and Iron Workers Local 25, 372 NLRB 23 (2022).
NLRB Says Dues Must Be Collected Post CBA, Reverses Course Once Again
In a decision dated September 30, 2022, the National Labor Relations Board ruled that employers must continue to collect voluntarily authorized union dues from the paychecks of employees after the expiration of the agreement.
NLRB Rules Employers Cannot Unilaterally Cease Dues Checkoff After CBA Expiration
Executive Summary: On October 3, 2022, in a 3-2 decision, the National Labor Relations Board (NLRB or Board) reversed its previous ruling from 2019 and held that a union dues checkoff provision should be treated as part of the status quo that the employer cannot unilaterally change following contract expiration. See 28-CA-213783, 371 NLRB No. 160 (2022).
Aggressive vs. Bad Faith Bargaining: Where is the Line?
The National Labor Relations Board, by a vote of 2-1, recently reversed an administrative law judge (ALJ) in finding that a hospital did not violate the National Labor Relations Act (the Act) by failing and refusing to bargain in good faith with the union. District Hospital Partners, L.P., 370
Labor Board: Successor Required to Bargain With Union Over Unilateral Layoffs
More than five years and a pandemic later, the National Labor Relations Board (NLRB) has clarified a successor employer’s union bargaining obligations regarding layoffs under the National Labor Relations Act. Tramont Manufacturing, LLC, 369 NLRB No. 136 (July 27, 2020).
NLRB Rules Notice and Opportunity to Bargain Over Discipline No Longer Required in New Bargaining Relationships
The National Labor Relations Board (NLRB) recently overturned a 2016 decision holding that an employer violates Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by failing to provide notice and an opportunity to bargain to a newly elected union prior to disciplining unit members.
Reversing Course, NLRB Holds Employers Have No Pre-disciplinary Bargaining Obligation
On June 23, 2020, the National Labor Relations Board issued its decision in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), holding that employers have no duty to bargain over serious employee discipline imposed before the negotiation of a collective
NLRB: Union Had Responsibility to Bargain About Employer Information Confidentiality Claim
The National Labor Relations Board (NLRB) has ruled an employer does not have a duty to provide a union with relevant information that contains confidential material if the union has refused the employer’s offer to bargain over ways to protect its legitimate confidentiality interests. Oncor Electric Delivery, LLC, 369 NLRB
Labor Board: Unions Waived Right to Bargain Over Changes to Retiree Medical Benefits
The National Labor Relations Board (NLRB) has held that an employer did not violate the National Labor Relations Act (NLRA) when it unilaterally changed retirees’ medical benefits without first negotiating with the unions that represented its employees. E.I. Du Pont De Nemours and Co., 368 NLRB No. 48 (Sept. 4, 2019).
E-Verify Subject to Collective Bargaining
While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.