News & Insights

In Graymont, PA, Inc., the employer unilaterally implemented new policies impacting progressive discipline and absenteeism during the term of its current collective bargaining agreement with the union. The employer made this choice believing its actions were authorized by the following “management rights” language [reproduced in pertinent part]:

The Employer retains the sole and exclusive rights to manage; direct its employees; to hire, to assign work, to transfer, to promote, to demote, to layoff, to recall, to evaluate performance, to determine qualifications, to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures….The rights expressly reserved by this Article are merely illustrations of and are not inclusive of all of the rights retained by the Employer….

All of the usual and customary rights of management not specifically abridged or modified by this Agreement shall remain exclusively vested in the Company.

The above “management rights” language does clearly make reference to the employer’s right to “discipline” and “adopt and enforce…policies and procedures.” Intuitively, this language appears to support the employer’s actions in Graymont, PA, Inc.  However, through Graymont, PA, Inc., the ALJ reminded unionized employers that notwithstanding this type of broad “management rights” language, making changes without first bargaining with the union is likely to violate the National Labor Relations Act. This is because a union does not waive its right to bargain over most terms and conditions of employment unless the waiver is “clear and unmistakable.”

For a waiver to be “clear and unmistakable” in the context of “management rights” language, “contract [“management rights”] language must be specific,” and must “unequivocally and specifically express [the parties’] mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” In other words, an employer that wishes to make policy changes without first notifying the union and bargaining over the proposed changes, must be certain that the collective bargaining agreement contains very specific language that authorizes the employer to make the desired policy change.  For example, if an employer sought to make changes to its safety policy, the “management rights” language should clearly and unambiguously permit the employer to “establish reasonable safety and health rules and policies.”

Ultimately, the scope of “management rights” language really depends upon what management “writes” [negotiates] into the collective bargaining agreement during negotiations. When in doubt, ask your trusted labor relations attorney for a second opinion.