NLRB Alters Clear And Unmistakable Waiver Standard

On Dec. 10, the National Labor Relations Board (NLRB) announced a decision raising the bar for when companies with unionized workforces can make unilateral changes to “mandatory subjects of bargaining” relating to the terms and conditions of employment.

The case before the NLRB involved a company’s decision to install cameras inside trucks for the purpose of monitoring employees. The petitioners in the case alleged the company violated the National Labor Relations Act (NLRA) by failing to provide the union with notice and an opportunity to bargain over the decision to install the cameras. The NLRB agreed and in its decision overrode a previous board decision that had granted employers more autonomy in making unilateral changes if consistent with management rights language in union contract.

This new decision states 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. Read more about the decision here.

In related news: The U.S. District Court for the District of Columbia has ruled the NLRB’s administrative law judges (ALJs) are unconstitutionally shielded from removal by the U.S. president. Specifically, the court found, “If the president wished to remove this — or any — NLRB ALJ, he would have to prevail upon the NLRB board members, who themselves can only be removed for cause. And even if the board agreed with him, they would have to prevail upon another board whose members are also protected by for-cause removal. … Needless to say, this byzantine process eviscerates the President’s ability to control NLRB ALJs.”

The NLRB is expected to appeal the decision.