NLRB Alters Standard For Unilateral Changes

The National Labor Relations Board (NLRB) has returned to a strict rule for evaluating an employer’s alleged unilateral changes to terms and conditions of employment. On December 10, 2024, in Endurance Environmental Solutions, LLC, the NLRB overruled the 2019 “contract coverage” test, which gave employers more latitude, and readopted the prior “clear and unmistakable waiver” standard.

A unilateral change allegation accuses an employer of taking an action without bargaining with the union. An employer violates the National Labor Relations Act if it makes a material, substantial, and significant change regarding a mandatory subject of bargaining without first providing the union notice and a meaningful opportunity to bargain about the change to agreement or impasse, absent a valid defense. An employer can defend an allegation that a unilateral change violates the Act on the basis that the union contractually surrendered the right to bargain on the term or condition at issue.

To evaluate whether an employer has made a unilateral change, the NLRB will now use the “clear and unmistakable waiver” standard to determine whether the union contractually surrendered the right to bargain over the term or condition at issue. Under this standard, an employer will be found to have violated the Act unless a provision of the collective-bargaining agreement “specifically refers to the type of employer decision” at issue “or mentions the kind of factual situation” the case presents.

Given the upcoming change in administration, we do not know how long this decision will last. Employers seeking to make changes to terms and conditions of employment for bargaining unit employees and/or those involved in, or planning for, contract negotiations should consult with a KZA attorney to discuss strategy and options.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.