NLRB Erases More Precedent as Republican Shift Looms

The National Labor Relations Board made it much harder for employers to make unilateral changes to terms and conditions of employment (i.e., without first bargaining with the union).

Yes, but: Chair McFerran’s re-nomination bid failed in the Senate Wednesday, paving the way for a Republican majority in early 2025. 

The NLRB decision: In a decision released earlier this week in Endurance Environmental Solutions LLC, the Board replaced a Trump-era standard that gave more leeway for employers to make unilateral changes to terms and conditions of employment. 

• Then: Under the previous, “contract coverage” standard, if the unilateral change was within the scope of what was allowed under the contract, it was generally permissible. 

• Now: Under the new, “clear and unmistakable waiver” standard, the contract must have specific language waiving the union’s right to bargain over the particular unilateral action taken by the employer for it to be permissible (this standard was also put in place by the Obama-era Board - the pendulum swings ever on).

Why it matters: The new (old) standard makes it much more difficult for employers to make unilateral changes, and broad management rights clauses may no longer be sufficient. 

• Employers should review their collective bargaining agreements to verify the actions they can clearly take without first bargaining with the union. 

The McFerran vote: Earlier this week, Senate Majority Leader Schumer made an effort to push Chair McFerran’s long-pending renomination through the Senate. However, the attempt was unsuccessful, and her term on the NLRB will expire on December 16.

• If Chair McFerran had been reconfirmed, Democrats would have been guaranteed a majority on the Board through August 2026.

• Democratic Senators Sinema (D-AZ) and Manchin (D-WV) joined Republicans to vote against the nomination, 50-49, with Manchin serving as the tiebreaking vote. 

Why it matters: The expiration of Chair McFerran’s term accelerates the shift to a Republican majority on the Board. The transition will occur once the Senate confirms President-elect Trump’s nominees.

The bottom line: Instead of another year and a half (at least) of pro-union decision-making from the Board, a new Republican majority can get started on its agenda as soon as Q1 2025.