Just when you thought the final days of the Biden administration would quietly fade into the holiday haze, today brought several more National Labor Relations Board (NLRB) bombshells.
First, it’s the end of the “contract coverage” standard—a precedent from the Trump era that allowed employers to change job requirements and working conditions without needing a union’s permission (as long as the contract language didn’t explicitly forbid it).
Instead, the NLRB’s Democratic majority just hit rewind, bringing back the “clear and unmistakable waiver” rule. Translation? Employers now must bargain with unions over changes unless the union explicitly waived its right to do so in the agreement.
NLRB Chair Lauren McFerran: “Today’s decision makes clear that an employer has the obligation to bargain over changes to wages and working conditions unless the union expressly yields its right to bargain over an employer’s decision.”
The backstory? A trash-hauling company—Endurance Environmental Solutions LLC—installed truck security cameras without union approval, sparking a showdown with a Teamsters affiliate. The Board decided the move violated federal labor law, and voilà—we’re back to the old pro-union standard.
So, what does this mean for employers?
- Those broad “management rights” clauses just got a lot weaker.
- Expect more mandatory bargaining on workplace changes.
- Union power? Cranked up another notch, temporarily anyway.
Sure, it’s a win for unions, but what about businesses navigating all this unpredictability? And let’s be real—does this all get reversed again when the political winds shift? We have every reason to think so.
Federal Court Rules President Can Fire NLRB Judges
In a landmark decision, a federal judge has ruled that the President can fire administrative law judges (ALJs) of the National Labor Relations Board (NLRB). The judge ruled that the ALJs were being improperly protected by administrative rules that prevented the President from removing them except in very limited circumstances, conflicting with the constitution.
Judge Trevor McFadden, a Trump appointee in the District of Columbia, declared that the current “layered removal protections” undermine the President’s authority to oversee these judges, calling the process “byzantine” and unconstitutional.
Under the National Labor Relations Act (NLRA), NLRB members are traditionally protected from removal by the President except for “neglect of duty or malfeasance in office,” ensuring the Board’s independence. However, recent legal challenges have argued that such restrictions on removal authority undermine the President’s constitutional power to ensure the laws are faithfully executed. The judge’s decision aligns with this perspective, focusing on the removal process.
This ruling marks the first victory outside the Fifth Circuit for employers challenging the NLRB’s structure. The decision aligns with the Supreme Court’s 2010 Free Enterprise Fund v. PCAOB precedent, invalidating similar job protections for federal agency officials.
The ruling intensifies the constitutional challenges facing the NLRB, which has seen increasing scrutiny from employers over its enforcement mechanisms. The NLRB declined to comment on the decision, and the legal implications for other administrative agencies remain to be seen.
Democrat Attempt to Confirm McFerran Fails
A Democrat-led effort to maintain a majority on the National Labor Relations Board through 2026 failed on Wednesday when Senate Republicans and two independents blocked Lauren McFerran’s nomination for reappointment to the board through 2026 for now. It is believed that President Trump would have fired McFerran if she had been confirmed. Most major business groups opposed her confirmation.
