On December 10, 2024, the National Labor Relations Board (NLRB) issued a decision that will make it harder for employers to make changes to their business operations without first providing unions with notice and an opportunity to bargain. In Endurance Environmental Solutions, LLC, the NLRB overturned a Trump-era decision and returned to a more employee/union-friendly test for determining when an employer’s unilateral changes to the workplace violated the National Labor Relations Act (NLRA)
Collective Bargaining Agreements (CBA)
The NLRA, among other things, requires employers and the unions that represent their workers to bargain in good faith about working conditions, so the end result would be a collective bargaining agreement (CBA), which is the document that contains each parties’ respective rights and obligations. An employer normally may not make unilateral changes to material terms and conditions of employment without first bargaining with the workers’ union.
Collective bargaining agreements often contain clauses reserving employers’ rights to take certain unilateral actions without bargaining, often referred to as management-rights clauses. In some instances, however, the employers and unions get into disputes over whether an employer’s unilateral action falls under the scope of the management-rights reserved within the agreement or whether it requires the employer to bargain — which brings us to this case.
Camera Installations and the CBA
The employer operates a fleet of trucks that haul waste and other materials to landfills. The union represents a bargaining unit of drivers, mechanics and loaders at one of the employer’s facilities. The parties had a collective bargaining agreement in place that included management-rights language that reserved the right of the employer to, among other things, “implement changes in equipment.”
The employer decided to purchase and install camera systems in its entire fleet of 400 trucks, including five or six trucks driven by bargaining unit employees. The camera systems consist of two cameras mounted on the windshield — one viewing the driver and one directed outward toward the road. The system continuously records audio/video footage, but only retains 10 seconds before and 5 seconds after a triggering event, such as a collision, hard breaking, hard acceleration, speeding, sudden lane changes and failure to maintain a safe following distance. After one of these triggering events, someone would review the footage, and the employer would decide if coaching or discipline was warranted.
The union demanded that the employer bargain over the camera installation, but the employer said bargaining wasn’t necessary based on its right to “implement changes in equipment.”
In determining whether the employer violated the NLRA by failing to provide the union notice and an opportunity to bargain over the decision to install cameras, the administrative law judge applied a “contract coverage” test adopted in a 2019 Board decision. Under the test, the question is whether the employer’s change is within the “compass or scope of the contract’s provisions that grant the employer the authority to act unilaterally.” If it is, then the CBA already covers an employer’s action, and the employer doesn’t need to bargain. If not, and the change is material, then the employer violated the law unless it can show the union unmistakably waived its right to bargain.
Applying that test here, the administrative law judge found that the employer’s decision to install camera systems fell within the scope of the management-rights language, and therefore, the employer did not need to bargain first.
The NLRB, however, concluded that the “contract coverage” test was not the right test to apply. It overruled the use of the 2019 “contract coverage” test and returned to a prior test — under which the “Board will not lightly infer a contractual waiver of the statutory right to bargain and will instead require such a waiver to be clear and unmistakable.”
The “clear and unmistakable waiver” standard essentially requires more specific language in CBAs. Looking at the “precise wording of relevant contract provisions,” the test asks whether the CBA contains a provision that specifically addresses or governs the controversy. If not, then the employer has an obligation to bargain with the union over the change.
Applying the test to this case, the NLRB determined that the employer violated the NLRA because the management-rights language reserving the right to “implement changes in equipment” doesn’t refer in any way to video or audio monitoring or surveillance of employees and found no evidence in the bargaining history suggesting the union waived its right to bargain on the issue.
Key Takeaways
Moving forward, employers subject to CBAs should evaluate their decisions to make changes in working conditions and review their management-rights provisions under the NLRB’s clear and unmistakable waiver standard.
This decision follows many recent employee-friendly NLRB decisions, including:
- Decision to restrict employer-mandated meetings regarding unionization.
- Expansive interpretation of protected activity under the NLRA.
- Increased scrutiny of employer handbook rules.
- Restricting employer’s ability to discipline employees for outbursts.
It’s worth noting, however, that it’s unclear how long these recent pro-employee/union decisions will remain in place. It’s expected that a newly constituted NLRB under the next Trump administration will shift Board policy to be more employer-friendly, likely overturning many of Board’s recent decisions issued under Biden’s administration. Employers, even those without unionized workforces, should continue to monitor these issues for future developments.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
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