December saw a number of important developments at the National Labor Relations Board (NLRB). The month started well for unions but ended badly. Some observers complained of whiplash!
On December 10, the five-member board, still under Democratic control, issued a long-awaited decision freeing unions from the most deleterious features of management-rights clauses.
The case, Endurance Environmental Solutions, LLC, overruled MV Transportation, a 2019 decree from Donald Trump’s first term in office.
MV Transportation created an outrageous presumption that unions that agree to generally worded management-rights clauses intend to give employers a right to change work rules, hours, or other conditions of work without giving prior notice or extending an opportunity to bargain.
Since most labor agreements have broad management-rights language, MV Transportation had a devastating impact, allowing employers to cancel important rights and benefits without fear of legal challenge.
When Joe Biden won the presidency in 2020, union activists hoped that he would soon nullify MV Transportation by restoring activist Democratic control of the NLRB. They cheered when Biden’s first picks, Democratic SEIU lawyers David Prouty and Gwynne Wilcox, formed a majority along with incumbent Democratic chairperson Lauren McFerran.
Disappointment gradually followed, however, as for almost five years the Biden labor board failed to take aim at management rights. With only a few weeks left in Biden’s term, the board finally came through.
Endurance Solutions squarely reversed MV Transportation, stating that “management-rights clauses that are couched in general terms and make no reference to any particular subject area will not be construed as waivers of the…
Auteur: Robert M. Schwartz
