The NLRB’s recent decision (Graymont, PA, Inc. and Local Lodge D92, 364 NLRB No. 37
) involved a situation that is common in unionized workplaces. The employer and the union had a collective bargaining agreement in place with a management rights clause which provided that the employer:
[R]etains 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 on this clause to announce changes to the work rules and the attendance and progressive discipline policies. The union objected to this move and requested a meeting with the employer. The union also requested that the employer provide information about the changes. The employer met with the union, but took the position that it was not required to bargain over the changes (due to the management rights clause). The employer also took the position that it was not required to respond in any way to the request for information. After a single meeting with the union, the employer implemented the revised policies.
The union responded by filing a grievance (which it ultimately withdrew) and by filing an unfair labor practice charge with the NLRB. Following a hearing before an administrative law judge and an appeal, the NLRB ruled that the employer had, in fact, committed an unfair labor practice by failing to bargain with the union before implementing the changes to the policies. The NLRB concluded that, although there was a management rights clause in the labor contract, it was not specific enough to be a waiver of the union’s right to demand bargaining. The NLRB explained that a waiver of a right to bargain must be “clear and unmistakable” and the parties must “unequivocally and specifically express their mutual response to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” The NLRB applied this standard to the facts and noted that the management rights clause did not specifically address the work rules, attendance or progressive discipline policies. As a result, the NLRB concluded that the union had not clearly and unmistakably waived the right to bargain over changes to those matters.
The NLRB also ruled that the employer committed an unfair labor practice by failing to respond to the union’s request for information. The interesting twist on that aspect of the decision was that the employer apparently did not have any relevant information to provide. Nonetheless, since the employer failed to respond to union’s the request for information in a timely manner (which it could have done by simply stating that it did not have information to provide), the employer was liable for that violation also.
decision provides a valuable reminder to unionized employers that they should be cautious about making changes to their employees’ terms and conditions of employment without bargaining with their union. If they are going to make changes without bargaining, employers should make sure that their management rights clause is specific enough to justify the action. The Graymont
decision also provides a reminder that they should respond to all union information requests in a timely manner, even if the response simply states that there is no information to provide or that the request itself is improper for some reason.
For more information on how this may impact your business, please contact a member of the Frantz Ward Labor & Employment Practice Group.