• NLRB - Vague Management-Rights Clause
  • August 19, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The National Labor Relations Board recently held that the provisions of a management-rights clause in a collective bargaining agreement were not specific or broad enough to allow the employer, during the term of the CBA, to implement unilaterally certain policy changes. In Graymont PA, Inc., the management-rights clause stated, in relevant part, that the employer “retains the sole and exclusive rights to manage; to direct its employees; ... to evaluate performance, ... to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; [and] to set and establish standards of performance for employees ...” The employer relied upon this clause in refusing to bargain with the union over its changes to work rules, an absenteeism policy, and a progressive discipline schedule.

    The Board, however, held that the management-rights clause did not constitute a “clear and unmistakable waiver” of the union’s right to bargain over these matters. This waiver standard “requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term....” The language of any such waiver must be “sufficiently specific.” In this case, the Board found that the reference to the employer’s ability “to adopt and enforce rules and regulations and policies and procedures” was deemed to be insufficiently specific, and that none of the management-rights provisions specifically referenced work rules, absenteeism, or progressive discipline. Thus, according to the Board, mid-term changes to these policies could be implemented only after the employer engaged in bargaining with the union.

    For unionized employers, this case serves as a cautionary tale to ensure that any management-rights clause be detailed and thoughtful. A generic statement will not be sufficient to support the employer’s ability to exercise rights as to specific issues in the view of the Board.