12/11/2024: Board Reinstates "Clear and Unmistakable Waiver" Standard
Employer can no longer rely on vague contract language to make unilateral changes.
Endurance Environmental Solutions, LLC, 373 NLRB No. 141, 09-CA-273873 (Published Board Decision)
This decision addressed whether an employer violated Section 8(a)(5) of the National Labor Relations Act by failing to bargain over the installation of surveillance cameras in trucks driven by union employees. The employer had a collective bargaining agreement (“CBA”) with the union that included a management rights clause that authorized management to make “changes in equipment.” The question presented was whether the union had waived its right to bargain over the installation of surveillance cameras by signing a CBA with this language.
The administrative law judge (“ALJ”) concluded that the union had waived its rights and that the CBA did authorize the employer to unilaterally install surveillance cameras. In reaching this conclusion, the ALJ applied the “contract coverage” standard established by MV Transportation, Inc in 2019. When applying this standard, the NLRB uses ordinary principles of contract interpretation to determine whether the unilateral action in dispute is actually “covered” by the CBA.
In this case, the Board reversed the ALJ decision and overruled MV Transportation and the “contract coverage” standard. In its place, the Board reinstated the “clear and unmistakable waiver” standard that had been Board law for over 70 years prior to the decision in MV Transportation. Under the “clear and unmistakable waiver” standard, the NLRB will presume that a union did not intend to waive its rights to bargain over a change unless the CBA contains language that clearly and unmistakably indicates its intention to do so. Using this higher standard, the Board concluded that the very generic phrase “changes in equipment” does not constitute a clear and unmistakable waiver of the union’s right to bargain over the installation of surveillance cameras.
Thus the Board ordered the employer to cease unilateral changes without bargaining and to bargain with the union over both the decision to install cameras and its effects.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Employers must provide notice and an opportunity to bargain before making unilateral changes to mandatory subjects of bargaining.
C & C Plywood Corp., 385 U.S. 421 (1967): Approved the Board’s use of the clear and unmistakable waiver standard as a permissible method of enforcing statutory rights under the NLRA.
Provena St. Joseph Medical Center, 350 NLRB 808 (2007): Reaffirmed the clear and unmistakable waiver standard, requiring unions to explicitly waive their bargaining rights.
MV Transportation, Inc., 368 NLRB No. 66 (2019): Introduced the contract coverage standard, which the Board overruled in this decision.
Commonwealth Flats Dev Corp d/b/a Seaport Hotel Boston, 373 NLRB No. 142, 01-CA-335996 (Published Board Decision)
The case arose after a January 18, 2024 secret ballot election in which the Union won certification as the exclusive bargaining representative for a unit of banquet and convention services employees at the hotel. When the Union requested bargaining on February 9, 2024, the employer refused, choosing to test the certification's validity. The General Counsel then issued a complaint alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act.
In its decision, the Board granted the General Counsel's Motion for Summary Judgment. The employer had admitted refusing to bargain but contested the Union's certification by challenging the appropriateness of the bargaining unit under Section 9(c). The Board determined these representation issues were or could have been litigated in the prior representation proceeding and could not be relitigated now, following Pittsburgh Plate Glass Co.
The employer raised several constitutional challenges, arguing that Board members' insulation from presidential control violated Article II and that NLRB proceedings violated its Seventh Amendment right to a jury trial. The Board rejected these arguments based on Supreme Court precedent in Humphrey's Executor and Jones & Laughlin Steel Corp.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Confirmed that representation issues cannot be re-litigated in an unfair labor practice proceeding absent new evidence or extraordinary circumstances.
Humphrey’s Executor v. United States, 295 U.S. 602 (1935): Validated restrictions on presidential removal power over agency officials.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Upheld the NLRA's constitutionality and the Board’s authority to address unfair labor practices.
Swissport Cargo Services, LP, 373 NLRB No. 144, 22-RC-292717 (Published Board Decision)
The National Labor Relations Board issued this decision addressing whether Swissport Cargo Services' operations at Newark Liberty International Airport are governed by the Railway Labor Act or the National Labor Relations Act.
The case began when the International Association of Machinists and Aerospace Workers and the Service Employees International Union sought to represent Swissport workers. The NLRB Regional Director initially asserted jurisdiction under the NLRA and directed an election. Swissport requested review, leading the NLRB to seek an advisory opinion from the National Mediation Board regarding jurisdiction.
While awaiting the NMB's opinion, elections proceeded due to a D.C. Circuit ruling that required ballot counting despite pending review requests. The Service Employees International Union won a runoff election.
The Regional Director had applied the NMB's traditional two-part test for determining jurisdiction, which examined whether the work was traditionally performed by carrier employees and whether carriers controlled the employer. However, on November 8, 2024, the NMB issued an advisory opinion that abandoned this test for air carrier contractors.
The NMB's new approach relies on the RLA's statutory definition of "air carrier" as "every common carrier by air engaged in interstate or foreign commerce." Under this interpretation, the NMB determined that Swissport, which connects to air transportation only through service contracts, is not a common carrier by air and therefore falls outside RLA jurisdiction.
The NLRB gave substantial deference to the NMB's advisory opinion. The Board agreed that Swissport is not a common carrier by air and therefore falls under NLRA jurisdiction. Chairman McFerran noted that the NMB had thoroughly explained its revised interpretation of RLA coverage.
The Board affirmed the Regional Director's assertion of NLRA jurisdiction and the underlying Direction of Election, effectively upholding the union election results.
Significant Cases Cited
HL Worldwide Express, 340 NLRB 1034 (2003): Established that the Board generally defers to the NMB’s advisory opinions on RLA jurisdiction.
ABM Onsite Services—West, Inc., 367 NLRB No. 35 (2018): Addressed the limits of deference when the NMB departs from precedent without reasoned explanation. The Board found this case distinguishable because the NMB thoroughly explained its departure.
Cogent Waste Solutions LLC, 29-RC-339367 (Regional Election Decision)
The NLRB Region 29 Director issued a Decision on Objections and Certification of Representative regarding a union election at Cogent Waste Solutions LLC. The election took place on May 15-16, 2024, between two competing unions: International Brotherhood of Teamsters Local 813 (the Petitioner) and League of International Federated Employees Local 890 (the Intervenor). The bargaining unit included approximately 59 helpers, welders, and mechanics at facilities in New York and New Jersey.
Local 890 won the election with 35 votes to Local 813's 16 votes, with one vote against union representation. Local 813 subsequently filed four objections to the election, alleging improper conduct by Local 890.
The objections claimed that Local 890: engaged in improper electioneering outside company property; made false statements about Local 813's connection to federal immigration authorities; promised food and beer in exchange for votes; and posted misleading flyers about potential loss of health benefits.
In evaluating these objections, the Regional Director applied the Board's established requirements for election objections. Under Section 102.69(a)(8) of the Board's Rules, a party filing objections must provide a written offer of proof that identifies specific witnesses and summarizes their anticipated testimony. General allegations or suspicious circumstances, without concrete supporting evidence, are insufficient to warrant a hearing or further investigation.
The Director found Local 813's offers of proof deficient for all four objections. For the electioneering and misrepresentation claims, Local 813 merely stated that witnesses would "relay what employees told them" without specifying the actual content of the testimony. Regarding the alleged benefit promises, no specific evidence was provided about the circumstances or witnesses. For the flyer objection, while Local 813 produced copies of the materials, it failed to provide evidence about where they were posted, who saw them, or their impact on voters.
Finding no objection supported by sufficient concrete evidence, the Regional Director overruled all objections and certified Local 890 as the exclusive bargaining representative.
Significant Cases Cited
Professional Transportation, Inc., 370 NLRB No. 132 (2021): Established that objections require specific and material evidence to justify setting aside an election.
Allen Tyler & Sons, Inc., 234 NLRB 212 (1978): Highlighted that objections based on suspicion or vague evidence are insufficient.
American Medical Response, 339 NLRB 23 (2003): Held that the mere posting of campaign materials near polling areas is not inherently objectionable.
Aurora Steel Products, 240 NLRB 46 (1979): Reinforced the need for offers of proof to include witness names, dates, and specific testimony content.
Kapi’olani Medical Center for Women & Children, 20-RC-355087 (Regional Election Decision)
The NLRB Region 20 Director issued a decision addressing a representation petition at Kapi'olani Medical Center for Women & Children in Honolulu. The case concerned whether registered nurse lactation consultants (RNLCs) could vote to join an existing registered nurse bargaining unit, and whether a licensed practical nurse lactation consultant (LPNLC) should be included in the voting group.
The Director based the analysis on the NLRB's Health Care Rule, which establishes eight appropriate bargaining units in acute care hospitals, including an all-RN unit. Since the existing RN unit did not conform to these standard groupings, the Director applied traditional community of interest principles to determine appropriate unit placement.
The evidence showed that RNLCs work alongside unit RNs in the neonatal intensive care and mother-baby care units under common supervision. Both RNLCs and unit RNs must maintain RN licensure, though RNLCs need additional certification as lactation consultants. They receive similar pay and benefits, share facilities, and work together to provide patient care. Some RNs have transferred to RNLC positions, and the roles have overlapping duties in providing breastfeeding support.
The lone LPNLC performs similar lactation consultant work but operates under a different license with a more limited scope of practice. While the LPNLC shares many working conditions with the RNLCs, including common supervision and integration into the same departments, the Director found that including this position would conflict with the Health Care Rule's preference for separate RN units based on their distinct professional status.
As a result, the Director ordered a self-determination election where only the RNLCs will vote on whether to join the existing RN unit. The election will take place on December 13, 2024, at the hospital's main auditorium. The LPNLC position will remain outside the bargaining unit regardless of the election outcome.
Significant Cases Cited
Armour & Co., 40 NLRB 1333 (1942): Established that a self-determination election can be used to allow employees to choose inclusion in an existing bargaining unit.
United Operations, Inc., 338 NLRB 123 (2002): Defined the factors for assessing community of interest, including shared supervision, integration, and terms of employment.
St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Applied the Armour-Globe standard to prevent undue proliferation of units in the healthcare context.
Crittenton Hospital, 328 NLRB 879 (1999): Clarified the application of the Health Care Rule in cases involving existing non-conforming units.