Endurance Environmental Solutions, LLC is a company involved in waste hauling and environmental services. Specifically, the company hauls trash and other materials to landfills. It employs workers such as drivers, mechanics, and loaders. These employees are responsible for the operation and maintenance of trucks and other equipment used in waste management and disposal activities.
Endurance decided in August 2020 to install the Lytx Driver Safety Suite, a surveillance system that records audio and video in its trucks, including those driven by unionized employees. The system retains footage from “triggering events,” such as hard braking or collisions, which could be reviewed and used for safety coaching or disciplinary purposes. The Union was not notified of the decision, nor was it given the opportunity to bargain over the implementation or its effects on employees’ terms and conditions of employment. Endurance justified its actions by citing a management-rights clause in the collective-bargaining agreement (CBA) that allowed it to “implement changes in equipment … provided that this exercise of management’s rights will not violate or supersede any other provisions of this Agreement.” This CBA was in effect from September 24, 2018 to September 26, 2021.
The Union first learned about the decision in January 2021 when employees were informed that Endurance had begun installing the cameras. The Union immediately demanded bargaining over the decision and its effects and requested relevant information. Endurance refused, asserting that it was not obligated to bargain because the management-rights clause authorized its actions. Subsequently, the Union filed an unfair labor practice charge under section 8(a)(5) and (1) of the National Labor Relations Act (NLRA).
The administrative law judge (ALJ) applied the “contract coverage” standard established in MV Transportation (2019), which allows unilateral changes if covered by the CBA’s language. As the CBA had language that Endurance could “implement changes in equipment,” the ALJ dismissed the complaint, finding that the cameras were considered “equipment,” and the decision was within the scope of the CBA’s management-rights provision.
The National Labor Relations Board (NLRB or Board) used this case to revisit and overrule the “contract coverage” standard established in MV Transportation. It found that the standard undermined the NLRA’s fundamental goal of fostering collective bargaining. The Board restored the “clear and unmistakable waiver” standard, which requires explicit language in a collective-bargaining agreement to waive statutory bargaining rights. Applying this standard, the Board determined that the management-rights clause in the CBA did not include specific language authorizing the use of surveillance cameras to monitor employees or discipline them based on such surveillance. Because the CBA lacked clear and unmistakable language waiving the Union’s right to bargain, Endurance had an obligation to notify and bargain with the Union before implementing the camera system.
The Board also analyzed Endurance’s duty to bargain over the effects of the decision. Even if the decision to install the cameras were privileged under the management-rights clause, the Board found that Endurance would still be obligated to bargain over its effects, such as potential disciplinary actions and the privacy implications for employees. The NLRB cited a longstanding precedent requiring separate treatment of decision and effects bargaining. By failing to bargain over these issues despite the Union’s requests, Endurance violated section 8(a)(5) and (1) of the NLRA.
The NLRB ordered Endurance to cease and desist from unilaterally implementing changes affecting employees’ terms and conditions of employment without bargaining. It directed the company to notify and bargain with the Union before making future changes and to bargain over the decision to install cameras and its effects if requested. Additionally, Endurance was required to post notices at its Florence, Kentucky facility, informing employees of their rights under the NLRA.
Endurance Environmental Solutions, LLC (2024) 373 NLRB No. 141.
Note: This decision is significant because it protects employees’ rights to negotiate over significant workplace changes. By reverting to the “clear and unmistakable waiver” standard, the NLRB emphasized the need for explicit contractual language to authorize unilateral employer actions.