By Ronald Miller, J.D. Reversing an administrative law judge, a divided four-member panel of the NLRB found that an employer unlawfully failed to timely inform a union that the information it requested regarding changes in work rules, an absenteeism policy, and a progressive discipline schedule did not exist. The Board overruled Raley’s Supermarkets to the extent that the unalleged issue was closely connected to the subject matter of the complaint and had been fully litigated. Moreover, the Board found it appropriate to apply this decision retroactively. Member Miscimarra dissented (Graymont PA, Inc., June 29, 2016). Management rights clause. The employer mines lime and produces lime products at two facilities. The union represented bargaining units at both facilities. The parties’ collective bargaining agreement contained a management rights clause permitting the employer to evaluate performance; discipline and discharge employees for just cause; adopt and enforce rules, regulations, policies, and procedures; and establish standards of performance. On February 14, 2014, the employer announced that it would implement changes to its work rules, absenteeism policy, and progressive discipline schedule. After the announcement, the union informed the employer it wished to discuss the changes. The parties agreed to discuss the matter. Information request. In a letter dated February 17, the union requested that the employer furnish it with information relevant to the decision to change the existing work rules, absenteeism policy, and progressive discipline schedule. The employer responded by asserting that under the management rights clause it had no obligation to bargain over any of the changes for which the union requested information. For its part, the union expressed its desire to keep the current rules and policies, and shared a number of specific concerns with the proposed changes. Based on the union’s comments, the employer made a few revisions to the proposed new rules. However, the parties did not meet again to discuss the changes before they were implemented. Waiver. The law judge ruled that the employer acted unlawfully by unilaterally changing its work rules, absenteeism policy, and progressive discipline schedule. The ALJ found that the management rights provisions did not waive the union’s right to bargain over the proposed changes. According to the ALJ, the provision was too vague to waive the union’s statutory right to bargain over any particular term of employment. In addition, the law judge found that these provisions, when read together, did not authorize the employer to act unilaterally. The Board agreed that the union did not waive its right to bargain and, therefore, the unilateral changes were unlawful. Here, the Board applied the "clear and unmistakable waiver" standard outlined in Provena St. Joseph Medical Center. The standard "requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply," the Board noted. In order to find a waiver based on contractual language, that language must be "sufficiently specific." In this instance, none of the management rights provisions specifically referenced work rules, absenteeism, or progressive discipline. Further, there was no evidence that the parties discussed these subjects during negotiations, let alone "fully discussed and consciously explored" them during bargaining over the current contract language. Accordingly, the employer failed to establish a clear and unmistakable waiver of the right to bargain over these changes. Raley’s Supermarkets overruled. In Raley’s Supermarkets, the Board declined to find that an employer acted unlawfully by failing to inform the union that certain requested information did not exist because the complaint alleged only that the employer unlawfully failed and refused to furnish the information. Applying Raley’s Supermarkets, the law judge declined to find that the employer acted unlawfully by its six-month delay in informing the union that the requested information did not exist, because the complaint alleged only that the employer unreasonably delayed furnishing the requested information. The Board ruled that Raley’s Supermarkets was wrongly decided, and that it should not preclude a finding of a violation in the circumstances of this case. Here the issue was one of procedural due process—the right to "notice and an opportunity to be heard," explained the Board. Sufficient notice is that which "afford[s] [the] respondent an opportunity to prepare a defense by investigating the basis of the complaint and fashioning an explanation of events that refutes the charge of unlawful behavior." New test. Section 102.15(b) of the Board’s Rules and Regulations provides that the complaint shall contain "a clear and concise description of the acts which are claimed to constitute unfair labor practices." However, the complaint is not the exclusive source of notice of the material issues to be addressed in a Board proceeding. Depending on the circumstances, notice may also be provided by the General Counsel’s representations at the hearing, or it might be evident from the respondent’s conduct in the proceeding. In Pergament United Sales, Inc., the Board found that an unalleged violation did not preclude a finding of unlawful conduct where it was closely connected to the subject matter of the complaint, and had been fully litigated. Here, the Board held that the Pergament test is applicable to all such circumstances in determining whether an unalleged violation may be considered. Under Pergament, "the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated." Applying Pergament to this case, the Board found that both prongs of this test were satisfied. First, the employer’s failure to timely disclose that the information requested by the union did not exist was a fact "closely connected" to the complaint’s allegation that it failed to timely furnish the union with relevant requested information. Second, the issue was fully litigated. Turning to the merits, the Board found that the record evidence established a violation. The delay in disclosing the nonexistence of the requested information was plainly unlawful because it was well established that the employer was obligated to timely disclose that the requested information did not exist as part of its duty to timely provide information. Retroactive application. Additionally, the Board found retroactive application of the standard announced here was warranted. It noted that there was no evidence that the employer relied on Raley’s Supermarkets in deciding how to respond to the union’s information request, or preparing for this proceeding. Further, no statutory purpose was served by declining to consider the issue since it would not result in a denial of due process. Finally, no particular injustice would arise from retroactive application here, because the Pergament test ensures that due process principles are considered and satisfied. Dissent. Finding that the management rights clause clearly and unambiguously granted the employer the right to make the changes at issue here unilaterally, Member Miscimarra disagreed with the majority’s conclusion that the employer acted unlawfully by unilaterally implementing the changes and by failing to disclose in a timely manner that it had nothing responsive to the union’s request for information regarding those changes. By agreeing to the language in the management rights clause, he argued, the union unmistakably waived its right to bargain over those changes. Alternatively, under a "contract coverage" standard, he would find that the union had already bargained and agreed that the employer had the right to make these changes unilaterally.
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