Management Rights

• Generally based on property rights principles– Owner/s has/have right to determine how

property is used– Management represents the owner(s)– Rights of a common law employer

• In private sector, informed by Sec. 8(d) of NLRA– Bargaining limited to terms and conditions of

employment

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Two Views Under CBA’s• Residual or Reserved Rights View– Management may control its business as it wishes except

as limited by• Legislation• Collective bargaining agreements

– Legislation and CBA determine what management may not do• If not limited, management may do as it wishes

• Shared Rights View– Under collective bargaining both sides forego rights in

order that the organization can be successful• Management foregoes complete right to do as it sees fit• Workers forego right to cease work, to improvise rules, etc.

– Each party obtains rights from CBA

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Limitations on Management Rights of Action Associated with CB

• Private Sector– May not act unilaterally with respect to TCE as

defined by NLRA• TCE includes almost everything that directly affects the

employment relationship

• Public Sector– Many states have legislation or executive orders

that mirrors NLRA with respect to TCE– Public employer may also be constrained by

constitution

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Management Rights Provisions

• Unnecessary based on reserved rights theory• Inclusion in almost all CBA’s based on shared

rights theory• Strengthens management’s position in

arbitration– Agreement states management can do it or– Agreement is silent• Other contract interpretations become relevant

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Waiver of Rights

• What is relationship between management rights provisions and duty to bargain over TCE?

• If Union has right to bargain over TCE, does that include the right to bargain over an changes in TCE during the term of the CBA?

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Waiver of Rights – Legal Doctrine• A union may waive or bargain away the economic

rights of employees under the NLRA, including the right to bargain over a term or condition of employment.

• We will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated. More succinctly, the waiver must be clear and unmistakable.

• Metropolitan Edison Corp. v. NLRB, 460 U.S., 693, 705-06, 1983.

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Right to Control Operations

• Unless specifically limited by CBA, management generally presumed to have right to determine, in absence of specific provisions in CBA– What is produced, including discontinuance– How it is produced• Technology

– When it will be produced– Where it will be produced

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Management Rights and TCE

• Quality– Unless specifically limited by CBA, management

has right to determine quality standards• Good faith• Reasonableness• Data

– Discipline for failing to meet quality must meet just cause standard• Notification• Reasonableness

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Management Rights and TCE (cont.)• Job Classifications– Unless specifically limited by CBA, management

usually has right to determine • Job classifications or positions

– Create– Eliminate

• Duties to be performed• Even when a classification mentioned in CBA, management

generally may fill it with zero employees• May be linked to introduction of technology

– Will generally require a renegotiation of wage rates with resort to grievance procedure

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Management Rights and TCE (cont.)

• Staffing Size– Unless specifically limited by CBA, staffing size

generally determined by management– Number of employees on an job, crew etc.– Reasonableness requirement• Health and safety

– one- or two-person police vehicles

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Management Rights and TCE (cont.)• Vacancies– Unless specifically limited by CBA, the management

may generally determine• the existence of a vacancy• Whether a vacancy will be filled

– Hiring of employees– Number of employees on an job, crew etc.– Reasonableness requirement

• Health and safety– one- or two-person police vehicles

• The employee that fills the vacancies generally determined by CBA

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Management Rights and TCE (cont.)

• Scheduling– Unless specifically limited by CBA, the

management generally has the right to determine schedules• Emergency changes in schedules• “Force Majure”

– (act of God)

– Again, the employee or employees that work a schedule, if there are multiple shifts, usually determined by the CBA

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Management Rights and TCE (cont.)• Overtime– Unless specifically limited by CBA, management

generally has right to determine when overtime will be scheduled

– Which employees will work overtime?• Layoffs– Unless specifically limited by CBA, management

generally has right to determine which positions will be eliminated

– Employee incidence pursuant to CBK

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Subcontracting• Addressed in agreement

– Right to subcontract determined by agreement• Weak limitation on subcontracting

– "discussion before contracting out,“ i.e., “The company shallinform the union of any construction or repair work, or bargaining unit work, to be contracted out prior to the writing of the contract, and discuss it with the union”

• Reasonableness– The Company will make every reasonable effort to use its available working

force and equipment in order to avoid having its work performed by outside contractors" or "The Company will use its own employees whenever possible.“

• General Limitation– "There shall be no regular work performed by any employee not covered by

the contract except in emergencies or when work must be performed for which regular employees are not qualified.“

• Job Protection Limitation– prohibition against contracting out unit work when the firm's

employees are on layoff or when the layoff or demotion of unit employees would result

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Subcontracting (cont.)• Agreement silent (most common)– Balance between

• Employees’ rights under CBA– Recognition

» Does it cover employees or work?– Wage

» Is the negotiated wage for employees or for work?

• Right of employer to efficiently run the business– Good faith – Reasonableness

• Basic arbitral view is that recognition provision covers employees and that management may subcontract for reasonable, business-related purposes

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Subcontracting (cont.)• Indicia of reasonableness– Subcontracting has occurred regularly in the past– Subcontracting for economy, lack of staff, etc.– No intent to discriminate against the bargaining unit– No or minimal displacement of bargaining unit employees– Work is not normally done by the unit– Lack of qualified employees– Lack of proper equipment– Emergency situtation

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Facility Closures (Full or Partial)

• Governed by– S.C. case in First National Maintenance– NLRB decision in Dubuque Packing

• Company generally has broad right to close a facility without bargaining about decision – but a transfer of work must be bargained if it can

be affected by CB

• Closure of a facility requires “effects bargaining”

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