Biden Board Restores Traditional Test for Assessing Waivers Under Management Rights Clauses

January 20, 2025 by Andrew Baker

In what are now the waning days of the Biden NLRB, the Board has overturned one more precedent from the first Trump Board. In Endurance Environmental Solutions (12/10/24), the Board struck down MV Transportation, 368 NLRB No. 66 (2019), and reinstated the traditional standard for permitting unilateral changes during the term of a collective bargaining agreement (CBA) only where the Union has “clearly and unmistakably” waived the right to bargain.

In MV Transportation, the Trump NLRB handed management a significant gift by adopting a new standard for applying contractual management-rights clauses to authorize unilateral actions during the term of a CBA. For decades, the NLRB required very specific contractual language expressly waiving a Union’s right to bargain over a specific subject for an employer to lawfully make unilateral changes during the term of a CBA. The NLRB in MV Transportation shredded that doctrine and adopted a “contract coverage” test to determine if a CBA allows the employer to act unilaterally. Under the MV Transportation standard, if a management-rights provision in a CBA was sufficiently general, it would permit an employer to act unilaterally with respect to any specific term or condition of employment that plausibly fit within the general subject matters of the provision.

With its decision in Endurance Environmental Solutions, the Biden NLRB restores the traditional “clear and unmistakable waiver” test, making it, for now, more difficult for employers to invoke a CBA’s management rights clause to legitimize unilateral changes during the term of a CBA.

 

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