Recently, the National Labor Relations 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. Under this standard, a union’s waiver of its right to bargain must be “explicitly stated” and “clear and unmistakable.”
This standard replaces the “contract coverage” test, which evaluated whether a change was covered by the terms of the parties’ CBA, thereby exempting the employer from the obligation to bargain separately with the union over that change.
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.”
