Steward's Corner: Challenge Unilateral Changes

When management changes an established working condition or adopts a new policy that adversely affects employees, stewards should alert union leaders quickly. By submitting a demand to bargain or filing a grievance, the union may be able to stop, modify, or at least delay harmful developments. Pressure tactics such as petitions, rallies, and picket lines add leverage.

NO UNILATERAL CHANGES

Employer bargaining duties do not end with the execution of a labor agreement. During the term of the contract, before making a material change in a matter not fixed by the agreement, the employer must provide the union timely notice and a meaningful opportunity to bargain. (Matters fixed by contract language may not be changed even if the employer offers to bargain.)

For example, even if the contract does not have language regulating workplace safety, management may not adopt a new safety rule without notifying the union ahead of time and, if the union requests, bargaining the change to agreement or a good-faith impasse.

Unfair Labor Practice charge. A policy or rule that is instituted without consultation with the union is called a “unilateral change.” Such changes violate Section 8(a)(5) of the National Labor Relations Act. If the union files a ULP charge within six months, the National Labor Relations Board can order the employer to rescind the change, compensate employees for any lost wages or benefits, remove any discipline imposed as a result of the change, and bargain in good faith before reinstituting the policy or condition.

BARGAINING SUBJECTS

For bargaining purposes, the NLRB divides workplace matters into two categories: “mandatory”and “permissive.” The categories determine the scope of negotiations that the union can insist on before a change is finalized. If the change concerns a mandatory bargaining subject, the employer must debate both the reasons for the decision and its effect on employees (“decisional and effects bargaining”). If the change concerns a permissive subject, the employer need only bargain on the effects of the change on employees.

Mandatory subjects. Mandatory subjects are terms or conditions that directly and vitally affect bargaining unit members. Examples include attendance policies, bonus programs, cafeteria and vending machine policies, and compulsory overtime rules.

Permissive subjects. Permissive subjects are terms or conditions that have an indirect impact on employees or lie “at the core of entrepreneurial control.” Examples include advertising policies, automation decisions not based on labor costs, selecting supervisors, and hiring additional persons to existing positions. An employer can make changes in permissive subjects without debating the reasons with the union. But that does not mean it can implement the change unilaterally. If the change has a substantial impact on the working conditions, wages, benefits, or job security of employees in the bargaining unit, the employer must give the union notice and bargain on the effects before taking action.

MID-TERM PROCEDURES

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The following procedures must be observed before an employer makes a change in a mandatory or permissive bargaining subject:

• The employer must give the union advance notice.
• The union may request to bargain.
• The union may request information about the reasons for or impact of the change.
• The employer must bargain in good faith and with an open mind.
• The employer may not carry out the change unless negotiations reach agreement or impasse.

WAIVER ARGUMENTS

Employers sometimes contend that the collective bargaining agreement privileges unilateral action. Bosses often assert that management-rights and zipper clauses are “waivers” of the union’s midterm bargaining rights.

Management rights. Management-rights clauses can designate matters about which the employer may act without union input. To qualify as a waiver of union rights, however, the employer’s authority to act on its own must be “clear and unmistakable.” Under current Board law, this requires the subject matter of the change to be specifically addressed. General language giving the employer the right to “direct the workforce” or issue “rules of conduct” is not sufficient. To illustrate: A Board decision held that a clause giving an employer the right to establish “reasonable workplace rules and regulations” was not specific enough to give up the union’s right to bargain over changes in work rules and absenteeism policies. On the other hand, a clause giving an employer the exclusive right to make disciplinary rules was viewed as a waiver of the right to bargain over changes in a progressive discipline schedule.

Zipper clause. A typical zipper clause reads: “This agreement is complete and excludes all matters from further negotiation for the duration of this agreement.” On its face, this arguably allows unilateral changes. But the NLRB disagrees. The language does not single out any particular subjects. Moreover, it permits the union to refuse to bargain on new matters. Consequently, an employer cannot impose a change even if it gives the union prior notice and offers to bargain.

Effects bargaining. A contract clause giving management the exclusive right to make changes in a particular matter does not eliminate the employer’s obligation to bargain over effects before implementing changes. For example, a contract may give an employer exclusive authority to introduce new technology. Nonetheless, if a new machine will have a substantial impact on workloads, safety, or other conditions of employment, the employer must give the union advance notice and allow bargaining on the effects prior to putting the machine in place.

Robert Schwartz is a retired union attorney and author of The Legal Rights of Union Stewards, from which this piece is excerpted. The book includes comprehensive lists of mandatory and permissive subjects of bargaining. Buy it at labornotes.org. For bulk orders call 313-842-6262.