Labor Department Makes It Harder for Employers to Make Unilateral Changes in the Workplace: 5 Steps for Employers

In a significant move, the National Labor Relations Board (NLRB) just overturned a Trump-era ruling, making it more difficult for union employers to make workplace changes without negotiating the change with the union. The decision on Tuesday Endurance Environmental Solutions, LLC is the latest shift in the labor law pendulum, overturning an employer-friendly standard that paved the way for unilateral changes and instead restoring a stricter requirement for determining whether a union is waiving its bargaining rights. Going forward, the board will require evidence of a “clear and unambiguous” waiver before granting employers permission to make workplace changes without negotiations. While we expect the new administration to flip the board and install members who will bring the playing field back to a level playing field, you must abide by this new standard until this case is overturned again. This insight reviews that decision and offers you five steps to adapt to this new landscape.

Surveillance cameras in the workplace triggered an important decision

The dispute arose between Endurance Environmental Solutions, a waste management company, and a Teamsters subsidiary representing its Kentucky-based workers. Endurance allegedly installed safety cameras on its trucks without first negotiating with the union, claiming that it had the authority under the CBA to make such a change unilaterally. The union argued that the move violated its collective bargaining rights, leading to an unfair labor practice charge.

The key question that would determine the outcome of the case would be whether the union had waived its right to negotiate such changes in the agreement.

For more than a decade starting in 2007, the NLRB maintained a “clear and unambiguous waiver” standard for answering this question. It only allows employers to make unilateral changes if a union has clearly and expressly waived its right to negotiate on the matter.
In 2019, the NLRB adopted the “Contract coverage” Default. This test used the plain language of a collective agreement to determine whether an employer could make unilateral changes to certain workplace conditions. It gave employers extensive opportunities to regulate their operations – including workplace-related matters – without being restricted by negotiations on specific points.

NLRB goes back in time to install a union-friendly standard

Tuesday’s verdict returned to the old “clear and unambiguous waiver” standard, making it more difficult for employers to make changes in the workplace without negotiating the change. In this particular case, the NLRB concluded that the employer’s reliance on the management rights clause in the contract was not sufficient to justify bypassing union negotiations.

The panel’s Democratic majority cited several reasons for reinstating the stricter standard:

Alignment with legal goals: The clear and unambiguous waiver The standard better supports the core purpose of the National Labor Relations Act (NLRA), namely to promote industrial peace through collective bargaining, it said.
Consistency with precedent: This standard is purportedly consistent with more than 70 years of board practice and, according to the board majority, is endorsed by the U.S. Supreme Court, providing employers with a more stable and predictable framework.
Harmony with Federal Courts: Most federal appeals courts have applied the clear and unambiguous waiver test to ensure consistency across jurisdictions.

In contrast, this is Contract coverage Test – adopted in the case of 2019 MV transport During the first Trump administration – allowed employers to interpret broad management rights clauses as permission to make unilateral changes, reducing unions’ bargaining leverage.

Chairman Lauren McFerran stressed in a statement accompanying the decision that this return to historical standards underscores the importance of explicit union consent. “Today’s decision makes clear that an employer has an obligation to negotiate changes to wages and working conditions unless the union expressly waives its right to negotiate an employer’s decision. Returning to the clear and unambiguous waiver standard better serves the law’s pro-negotiation policy.”

Implications for employers

This ruling has significant implications for how employers must deal with workplace changes in unionized environments. Key findings include:

Narrow interpretation of CBAs: Broad management rights clauses may no longer provide sufficient authority for certain unilateral actions.
Increased risk of breaches: Employers are more likely to be sued for unfair labor practices when they act without explicit union exemptions.
Emphasis on willingness to negotiate: The decision strengthens unions’ ability to challenge changes and demand negotiations.

5 steps for employers

To adapt to this new landscape, employers should consider the following five steps:

1. Review your CBAs thoroughly

Conduct a detailed review of all collective bargaining agreements to identify any unclear language in management rights clauses.
Clarify terms during negotiations to determine when unilateral changes are permitted.

2. Consult legal counsel

Consult your employment law advisor before implementing any workplace changes that could impact unionized employees.
Ensure compliance clear and unmistakable Waiver standard to minimize legal risks.

3. Train management teams

Inform managers and HR professionals about the restored standard and its impact on decision-making.
Develop clear protocols for engaging with unions before introducing policy or operational changes.

4. Strengthen union communication

Maintain an open and constructive dialogue with union representatives to collaboratively address workplace concerns.
Proactively involve unions in decision-making processes to demonstrate your good faith efforts in negotiations.

5. Plan for disputes

Prepare for potential challenges by documenting all communication with unions and providing clear justification for proposed changes.
Create contingency plans to meet operational needs if negotiations stall.

Diploma

We expect a flurry of more decisions to change standards over the next week as the Democratic CEO’s term comes to an end.