Management Rights

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

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

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

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

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?

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.

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

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

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

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

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

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

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

Management Rights