A company had a management rights clause in its collective bargaining agreement that, among other things, gave it the right to: “adopt and enforce rules and regulations and policies and procedures.” Relying on that clause, the company unilaterally adopted new work rules and a new attendance policy. It also denied the union’s request to receive information and bargain about the changes because the management rights clause allowed the employer to adopt rules and policies, bargaining was not required.
According to the Board, while the management rights clause reserved the right to adopt “rules,” it did not specifically say “work rules,” and while it reserved the right to adopt “policies,” it did not specifically say “attendance” policies.
The Board wrote, “in order to find a waiver [of a duty to bargain] based on contractual language, the language must be ‘sufficiently specific.’” The Board determined it would look for evidence that the intent to waive was “fully discussed and consciously explored during negotiations.”
What does all this mean for an employer who relies on management rights clauses?
- Do not assume your management rights clause gives you the right to take unilateral action without first bargaining over your proposed course of action.
- The duty to bargain can also apply to many other management rights (e.g. subcontracting, transfers of work, layoffs).
- “Bargaining” does not always mean “get agreement” or “get permission.” In many cases, an employer has the right to ultimately take its proposed action without agreement with the union.
- How much discussion has to occur, and how much information needs to be exchanged in order to satisfy the duty to bargain requires a case by case analysis. Employers cannot be too quick to say “we have talked enough.” Allow the union sufficient time – often over several meetings – to ask questions and offer alternatives. In these situations, patience really is a often a virtue (and helps avoid costly economic consequences).
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 firstname.lastname@example.org.