Seyfarth Synopsis:In Graymont PA,
Inc. the Board majority ruled that a unionized employer cannot
unilaterally change rules or policies that affect bargaining unit
employees even if its collective bargaining agreement contains a
broad management rights clause.
In Graymont PA, Inc., 364 NLRB No. 37 (2016), the union
had represented a unit of the employer's employees since the
1960's. The most recent bargaining agreement contained a
management rights clause that stated that the employer
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 . . .
While the agreement was in effect, the employer announced that
it was going to implement changes to its work rules, absenteeism
policy, and progressive discipline policy. These rules and
policies were not a part of the agreement. After the employer
made the announcement, the union informed it that it wanted to
discuss the announced changes. The employer explained to the union
that although it had no obligation to bargain over the changes, it
was willing to listen to the union. The employer discussed
with the union and made a few revisions to the work rules and
absenteeism policy based on the union's comments.
Nevertheless, the Board found that the employer's changes to
the work rules, absenteeism policy and progressive discipline
policy constituted unlawful changes because the employer did not
have the right under the agreement to make these unilateral
The Board noted that for purposes of determining whether a
collective bargaining agreement allows an employer to make
unilateral changes, it applies the "clear and unmistakable
waiver" standard. Under Graymont PA, Inc., to
constitute a clear and unmistakable waiver of a union's right
to bargain over changes in policies, procedures and/or work rules,
the management rights clause must specifically refer to the types
of rules/policies at issue. In other words, a broad management
rights clause that provides management with the sole and exclusive
right to "manage" and "direct its employees,"
"evaluate performance," "adopt and enforce rules and
regulations and policies and procedures," and "set and
establish standards of performance" does not waive
the right of the union, for example, to bargain over changes
to an attendance rule or a progressive discipline policy. For such
a waiver to be enforceable, according to the Board majority, the
management rights clause must specifically refer to rules and
regulations related to "discipline" and
This Graymont PA decision creates new restrictions on
an employer's ability to rely on a management rights clause to
make changes to rules and/or policies without first bargaining with
the union. At the same time, it opens the door for unions to file
unfair labor practice charges over such changes. In order to
evaluate an employer's right to make unilateral changes in
rules, regulations, handbooks or policies, every collective
bargaining agreement's management rights clause will need to be
reviewed to determine how specifically it refers to the changes in
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