The language of management rights can be general and at the same time clear and unambiguous. In this case, the parties agreed that Graymont reserves the right « to issue and enforce rules and regulations, as well as policies and procedures. » No reasonable person reading this wording could conclude that Graymont`s right to unilateral action extends to rules, regulations, policies and procedures that affect some issues but not others. There is no union contract that covers all possible situations that may arise. There are some who try, but they are usually incomprehensible to ordinary mortals. For this reason, there are usually two clauses in contracts, which are essentially of a general nature. One of them is the « Management Rights » clause, which sets out some of the general rights available to management. The other is the `recognition clause`, which sets out the rights of the Union and the obligation of management to deal with the Union. In most cases, the recognition clause is at the beginning of the contract and reads as follows: many union employers insist on strong management clauses in their employment contracts. These clauses contain language that reserves the right to issue new rules and regulations to the employer. A reasonable employer may assume that this wording gives the company the right to make rules and regulations without first negotiating with its union. A recent decision by the National Labour Relations Board reflects how differently the Board views this issue as « the reasonable employer » and offers several lessons to evolving employers.
It should be noted that the management rights clause in this particular case contained a fairly long list of issues that fell within the scope of the management rights clause, and the Commission concluded that 9 of the 10 amendments in question fell within that scope. However, one dissenting member suggested that a « sufficiently general » management rights clause could allow an employer to act unilaterally with respect to a « special condition » or condition of employment. This will probably be a problem for a future case, which will make the negotiations and the elaboration of the management rights clause very important. It is important to get management to fulfil its obligation to negotiate with the Union. Stewards should take the time to explain to members why it is worth fighting for compliance with the recognition clause. Buttons, stickers and other visible signs are useful to remind management that members will not tolerate their rights being trampled underfoot. The Commission noted that it applies the « clear and unambiguous waiver » standard to determine whether a collective agreement allows an employer to make unilateral changes. According to Graymont PA, Inc., the management rights clause must specifically refer to the nature of the rules/policies in question in order to establish a clear and unequivocal waiver of a union`s right to negotiate changes to labour policies, procedures and/or rules. In other words, a comprehensive management rights clause that gives management the unique and exclusive right to « guide and guide its employees, » « evaluate performance, » « adopt and enforce rules and regulations, as well as policies and procedures, » and « establish and set performance standards » does not waive the union`s right, for example, through changes to an attendance rule or progressive disciplinary policy. to negotiate. For such a waiver to be enforceable, the management rights clause must, in the opinion of the majority of the Board, specifically refer to the rules and regulations relating to « discipline » and « presence ».
What does all this mean for an employer who relies on management rights clauses? Several things: The importance of the recognition clause in complaints about subcontracting was clearly highlighted in an arbitration won by EU Local 715. The company had announced that it would outsource the truck driver`s work and had refused to negotiate with the union on the matter. When lodging a complaint, one of the articles cited by the European Union was the recognition clause. In awarding the union a victory, the arbitrator noted that « the Contracts Act and jurisprudence under the National Industrial Relations Act require parties to engage in collective bargaining if subcontracting results in the loss of jobs of members of the collective bargaining unit. » In applying these principles, the Commission found a violation because « none of the provisions relating to contractual administrative rights specifically refers to labour rules, absenteeism or progressive discipline ». Counsel also noted that the employer`s letter to the union « did not mention this provision [on management rights]. » The board distinguished the wording before it from language that it had previously considered a waiver of negotiations in United Technologies Corp., 287 NLRB 198, 198 (1987) and 884 F.2d 1569 (2d Cir. 1989). At United Technologies, the employer unilaterally changed its progressive disciplinary policy. In determining that there had been no violation of the law, the Board noted that the following wording of the management rights clause was sufficiently precise to allow the employer to make the changes to the disciplinary system, where management « had the exclusive right and responsibility to direct the activities of the company and in this context. select, hire and degrade employees, including their right to enact and enforce rules and regulations relating to production, discipline and safety. .
. . In contrast, in Graymont, the Commission found that the wording at issue was deficient because it did not specify any « disciplinary » or « absent » provisions with respect to its right to adopt and apply rules. We must always try to get management to negotiate any proposed changes, regardless of what the management rights clause says. We won`t win everyone, but by sticking to our rights and having active members behind us, we can « train » management to negotiate most working conditions. If this is not possible, consider sending a letter to management during contract negotiations stating that the union does not consider the existing management rights clause to be a waiver of its NLRA bargaining rights. Anne Bonney, the union`s chief shop steward, had heard rumours that the company would outsource the work of the accounting department to a company in Ireland. On Monday, she and the other members of the union committee were summoned to the office of the head of department. « What`s going on? » she asked George Rahkam, the manager. « I have bad news. From 3 months, all settlements are in Ireland, » George said. Will you sit down and negotiate with the union? Anne asked. « We don`t have to, » George said, « the management rights clause says we have the right to run the business, and you don`t have anything in the contract that says we can`t outsource the work. » This decision shows the difficulty and uncertainty that employers face in asserting their rights, especially in an absolutist manner.
Undoubtedly, the employer believed that he was asserting a right he had obtained in the negotiations, for which he could have made concessions. .