The National Labor Relations Board (NLRB) has taken a significant step to strengthen workers’ rights by restoring the “clear and unmistakable waiver” standard for evaluating employers’ contractual defenses to allegations of unlawful workplace changes.
This landmark decision, issued on December 10, 2024, in the case of Endurance Environmental Solutions, LLC, reaffirms a standard that prioritizes collective bargaining and has been endorsed by the Supreme Court for more than 70 years.
The Endurance decision overrules the controversial 2019 ruling in MV Transportation, Inc. (368 NLRB No. 66), which had implemented the “contract coverage” test. This test allowed employers more leeway to make unilateral changes to workplace conditions, bypassing the obligation to bargain with unions.
Under the restored “clear and unmistakable waiver” standard, employers must demonstrate that unions have explicitly waived their right to bargain over specific changes to wages, hours, or other working conditions. This higher threshold better aligns with the National Labor Relations Act’s (NLRA) core mission: to promote industrial peace through collective bargaining.
NLRB Chair Lauren McFerran emphasized the decision’s alignment with the NLRA’s pro-bargaining policy.
“Today’s decision makes clear that an employer has the obligation to bargain over changes to wages and working conditions, unless the union expressly yields its right to bargain over an employer’s decision,” said McFerran. “Returning to the clear and unmistakable waiver standard better serves the pro-bargaining policy of the Act.”
Members David Prouty and Gwynne Wilcox joined McFerran in the majority opinion, while Member John Ring Kaplan dissented.
This decision restores a standard that respects the collective bargaining process and prevents employers from exploiting vague contract language to bypass negotiations. The clear and unmistakable waiver standard is consistent with long-standing Supreme Court precedent and federal appellate court rulings.
Unions and workers stand to benefit significantly from this ruling. By reinforcing the duty to bargain, the NLRB has ensured that unions maintain their voice at the table, safeguarding fair wages, safe working conditions, and other essential protections for workers.
