Q. Our company has a union contract with work rules. We also have the right in the contract to change the work rules, which the union can grieve. We recently exercised our right to add a new rule prohibiting cell phones in the plant. The union hasn’t filed a grievance, but it has filed an unfair labor practice charge with the National Labor Relations Board (NLRB). It claims that we are obligated to bargain over the new rule. Are we obligated to bargain over a new rule like this? — R.S.
A. We want to give you a categorical, unqualified NO! You are not required to bargain with the union because you have already secured the right to implement work rule changes in your collective bargaining agreement. But, we must give you a qualified answer. Absent a “waiver” clause in your contract, you must bargain over changes in “wages, hours and working conditions” unless the change is minor. Prohibiting cell phones would qualify as a change in working conditions and would likely be regarded as more than a minor change.
You seem to have a waiver-clause defense, but the NLRB takes the position that the waiver must be “clear and unmistakable.” Thus, the NLRB in some cases concludes the union knew that it was giving up the right to bargain over the work rules, but its waiver was not clearly and unmistakably intended to address the issue of cell phone policies. While we agree with you that you should not have to bargain over this work rule, understand that the board may look at the issue in a different light. Sorry, there's no unqualified answer to this question!
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