When drafting a collective bargaining agreement, employers often
insist on a management-rights clause. That clause reserves to the
employer the right to take unilateral action, with respect to
certain terms and conditions of employment without an obligation to
bargain with the union about that action. In negotiating such
clauses, employers try to find the right balance between
specifically delineating the rights being retained, while keeping
the language sufficiently broad to cover other (perhaps
unanticipated) circumstances in which the employer might need to
act unilaterally.
The National Labor Relations Board has made that task much more
difficult. In Graymont PA, Inc. 364 NLRB No. 37 (June 29,
2016), the Board held that an employer must meet a very high level
of specificity in a management-rights clause before the Board will
find that the union unequivocally waived its right to bargain over
the action in question.
