In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen with management rights clauses in collective bargaining agreements.
In Graymont the Board held that the employer violated the Act by denying the union the opportunity to bargain before unilaterally changing its work rules, absenteeism policy, and progressive discipline policy, notwithstanding a management rights clause in the collective bargaining agreement. The management rights clause stated 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….”
However, the Board held that the language in the clause did not support the conclusion that the union “clearly and unmistakably” waived its right to bargain over the policies as the language did not specifically mention the policies that would be controlled by the provisions and there was no indication that the parties discussed the subjects in question during negotiations. This decision, to me, grossly undermines the effectiveness of employer management rights clauses.
Similarly, in E.I. DuPont de Nemours, the Board held that discretionary unilateral changes made pursuant to a past practice under an expired management rights clause were unlawful, and noted that an employer may unilaterally act under an established past practice only if the changes are not made in the exercise of managerial discretion.
These decisions are a harsh reminder to employers to carefully consider the management rights clause in your collective bargaining agreements before implementing unilateral changes. Employers at the bargaining table in 2017 should reconsider the wording of a management rights clause to maximize their authority to act unilaterally in the future – an endeavor far easier said than done.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.