A Union’s Waiver of Bargaining Rights Must be Clear and Unmistakable

A union and hospital had a somewhat standard management rights clause in their collective bargaining agreement. That clause provided that the employer “retains the sole right to manage and direct” unit employees, to determine the “nature and extent of services provided,” and to “assign and delegate work.” The contract also had a specific provision that an employee assigned to serve as “preceptor” for a nurse or student nurse interns would receive added pay while performing the extra duty. Based on these contract clauses, the hospital created a program for nurses to provide clinical training to nursing students at a local university.

In the new program, nurses selected by the hospital and approved by the university received pay from the university and were considered employees of both the hospital and university. The union objected to this arrangement and argued that although a similar program was contemplated in the collective bargaining agreement, the agreement did not intend to authorize this type of program. The hospital rebutted that the union waived its right to bargain over this program based on language in the management rights clause.

A union’s waiver of bargaining rights must be established by clear and unmistakable evidence. Merely accepting a management rights clause and signing off on a contract provision that covers some training duties does not satisfy the NLRB that a union has surrendered its right to bargain about new and different programs. Here, the Board found that the new program was materially different from the one identified in the union contract and ordered the employer, if requested by the union, to rescind any changes made in the conditions of employment of unit employees because of the program.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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