Management Rights

1
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

2
Two Views Under CBAs

• 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

3
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

4
Management Rights Provisions

• Unnecessary based on reserved rights theory
• Inclusion in almost all CBAs based on shared
  rights theory
• Strengthens managements position in arbitration
• Agreement states management can do it or
• Agreement is silent
• Other contract interpretations become relevant

5
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?

6
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.

7
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

8
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

9
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

10
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

11
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

12
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

13
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

14
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

15
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

16
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

17
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