NLRB Raises the Bar: Unionized Employers Face New Limits on Unilateral Workplace Changes

This article is from The National Law Review: https://lnkd.in/e_qep9g4 In a significant shift for unionized workplaces, the National Labor Relations Board (NLRB) has made it much more difficult for employers to unilaterally implement changes to working conditions—even when management rights clauses exist in collective bargaining agreements.

The decision, issued on December 10, 2024, in Endurance Environmental Solutions, LLC (Case No. 09–CA–273873), overturns a 2019 Trump-era ruling and reinstates a stricter legal standard that has serious implications for how employers manage union-represented employees.

The Case: Surveillance Cameras Trigger a Legal Dispute

The case involved an employer’s decision to install cameras inside company trucks to monitor employee conduct. The union objected, stating it was not notified and did not have an opportunity to bargain over the decision. The employer, relying on a management rights clause in the collective bargaining agreement, believed it had the authority to act unilaterally.

However, the NLRB disagreed.

The Ruling: No More “Contract Coverage” Shortcut

In its ruling, the Board’s Democratic majority explicitly overruled the 2019 decision in MV Transportation, Inc., which had adopted a more employer-friendly “contract coverage” standard. Under that standard, employers were allowed to make unilateral changes if their actions were arguably covered by a management rights clause in the collective bargaining agreement.

The Board has now reinstated the “clear and unmistakable waiver” standard, which had governed NLRB decisions for over 70 years before MV Transportation.

Under this stricter standard, an employer cannot rely on general contract language. Instead, the union must have explicitly and unmistakably waived its right to bargain over the specific subject at issue. If there is any ambiguity, the employer must notify the union and offer to bargain before making changes.

Why This Matters: Surveillance = Mandatory Bargaining

The Board also reaffirmed that the use of surveillance, including cameras, is a “mandatory subject of bargaining”—especially when surveillance could potentially lead to employee discipline. This means that, absent a clear waiver from the union, employers must engage in bargaining before implementing any surveillance measures.

In this case, because the employer failed to provide the union notice and denied a bargaining request, the Board found a violation of the National Labor Relations Act (NLRA).

What Employers Should Do Now

Unionized employers must take this ruling seriously. The return to the “clear and unmistakable waiver” standard significantly narrows the scope of unilateral action under management rights clauses. To avoid unfair labor practice charges, employers should:

1. Review management rights clauses in collective bargaining agreements for specificity.

2. Avoid making unilateral changes to mandatory subjects of bargaining (e.g., wages, hours, surveillance, working conditions) without prior notice to the union.

3. Document all union communications relating to workplace changes.

4. Train supervisors and HR leaders on the reinstated bargaining obligations.

5. Consult legal counsel before rolling out workplace policies or changes that could affect union-represented employees.

   
   

Final Thoughts

The NLRB’s decision in Endurance Environmental Solutions is a game-changer for how unionized employers must approach workplace management. With the bar now raised, even long-standing contract language may no longer shield employers from bargaining obligations. Until and unless a union clearly and unmistakably waives its rights, employers must be prepared to negotiate or face legal consequences.