The National Labor Relations Board recently ruled in Graymont PA, Inc., 364 NLRB No. 37, that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally implementing changes to various policies and by failing to timely inform the Union that it did not possess information requested relevant to the policy changes.  In doing so, the Board found a management rights clause which gave the Respondent the sole discretion to adopt and enforce rules, regulations, policies, and procedures too vague to waive the Union’s right to bargain over the proposed policy changes.

The management rights clause at issue provided that the Respondent:

[R]etains 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 . . . .

The Respondent announced that it would implement changes to its work rules, absenteeism policy, and progressive discipline schedule. The Union asked to meet to discuss the changes and requested information relevant to the changes.  In response, the Respondent informed the Union that it had no obligation to bargain over the changes or furnish the requested information under the management rights clause.  Regardless, the Respondent met with the Union and made a few revisions to the policy changes based on the Union’s comments and concerns.

The Board determined that the management rights clause did not clearly and unmistakably waive the Union’s right to bargain over the changes because “none of the contractual management-rights provisions specifically reference work rules, absenteeism, or progressive discipline.” Further, the Board found “no evidence that the parties discussed these subjects during negotiations, let alone fully discussed and consciously explored them during bargaining” as required for a waiver.

Relying on Raley’s Supermarkets & Drug Centers, 349 NLRB 26 (2007), the Administrative Law Judge had found that the Respondent did not violate the Act by failing to timely inform the Union that it did not possess the information requested because the complaint did not mention the nonexistence of the requested information.  The Board reversed the ALJ and overruled Raley’s Supermarkets.  The Board found the failure to timely disclose the nonexistence of the information to be “closely connected” to the subject matter of the complaint even if not specifically alleged.

Member Miscimarra dissented, finding that, under the management rights provision, the Respondent “reserved the right, without exception, ‘to adopt and enforce rules and regulations and policies and procedures.’ No reasonable person reading this language could conclude that [the Respondent]’s right of unilateral action extended to rules, regulations, policies and procedures concerning some matters but not others.”