The National Labor Relations Board (Board or NLRB) has applied its “clear and unmistakable” waiver standard in unilateral change cases for several decades. Since the early 1990s, however, the Board has faced judicial criticism, numerous denied enforcement petitions, and dissenting opinions from some of its own members on the ground
that, where an employer’s unilateral change on a mandatory subject was allegedly dealt with in the collective bargaining agreement, the waiver standard is irrelevant and the contract-coverage standard is the proper test to apply. The Board has nevertheless adhered, often reflexively with scant explanation, to the rule that a purported waiver of bargaining rights must be clear and unmistakable.
In Provena Hospitals , however, the Board reaffirmed its commitment to the traditional waiver test and offered an extensive justification for the doctrine. A Board majority rejected the contract-coverage approach as inconsistent with settled law, parties’ expectations, and the preference of the National Labor Relations Act (NLRA or the Act) for the collective bargaining process.