National Labor Relations Board Makes It Difficult for Unionized Employers to Make Unilateral Changes

In a unionized workforce, employers generally cannot make unilateral changes to “mandatory subjects of bargaining” relating to the terms and conditions of employment without first providing the union with notice and an opportunity to bargain. Unless the union waives its right to bargain, a failure to provide notice and an opportunity to bargain over changes to mandatory subjects may constitute an unfair labor practice in violation of the National Labor Relations Act (NLRA).

In a recent decision, the National Labor Relations Board (NLRB or the “Board”) raised the bar on an employer’s ability to make unilateral changes. The dispute before the Board involved a company’s decision to install cameras inside trucks for the purpose of monitoring employees. The Board considered whether the company violated the NLRA by failing to provide the union with notice and an opportunity to bargain over the decision to install the cameras. The case is Endurance Environmental Solutions, LLC, NLRB Case No. Case 09–CA–273873 (December 10, 2024).

In finding that the company violated the NLRA by unilaterally installing cameras, the Board’s Democratic majority overruled a prior Trump-era decision in MV Transportation, Inc., 368 NLRB No. 66 (2019). That prior decision granted employers more autonomy in making unilateral changes if consistent with management rights language in union contract, the so-called “contract coverage” standard. In the more recent case, the Board held that a union’s alleged waiver of the right to bargain over a mandatory subject of bargaining must be “clear and unmistakable,” the standard that existed prior to the MV Transportation decision: 

We therefore overrule MV Transportation and restore the rule consistently followed by the Board for more than 70 years and endorsed by the Supreme Court in 1967. Under that standard, the Board will not lightly infer a contractual waiver of the statutory right to bargain and will instead require such a waiver to be “clear and unmistakable.”

Concluding that there was no “clear and unmistakable waiver” by the union, the Board found that the company violated the NLRA by failing to provide the Union notice, the opportunity to bargain, and refusing the union’s request to bargain over the decision to install cameras. The Board also noted that it has repeatedly held that the use of cameras to observe employees at work is a mandatory subject of bargaining, especially where such observation may be used to discipline employees.

The Board stated that, absent proof that a union clearly and unmistakenly waived the right to bargain, an employer violates the NLRA by making a change to a mandatory subject of bargaining without first providing the union with notice and an opportunity to bargain. Based on the revived “clear and unmistakable waiver” standard, employers should be cautious before relying on standard management rights provisions as a basis for claiming a union has waived its right to bargain over a particular mandatory subject of bargaining.