The National Labor Relations Board (NLRB) issued its decision in Endurance Environmental Solutions, LLC restoring the “clear and unmistakable” waiver standard, which requires employers to demonstrate that a union clearly and unmistakably waived its right to bargain over the subject of a unilaterally implemented change in working conditions. In Endurance, the NLRB overruled its 2019 decision in MV Transportation Inc. in which it had adopted the “contract coverage” test, which required the NLRB to examine the plain language of the parties’ collective-bargaining agreement to determine whether a unionized employer’s change in a term or condition of employment was within the compass or scope of contractual language granting the employer the right to act unilaterally. The NLRB 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.”
