Employer’s Modification to Employee Handbook Break Policy Was Unfair Labor Practice
By Ruder Ware Alumni
February 11, 2016
Often [at least within my respective circles of friends and co-workers],the National Labor Relations Board (NLRB) is criticized for its polemics of ipse dixit—“it is so because we say it is so.” Recently, one business advanced this same criticism through legally challenging the NLRB’s decision in federal appeals court. On February 9, 2016, the US Court of Appeals for the Eighth Circuit [which issues opinions that impact businesses in Minnesota and Iowa, among other states], in Parsons Electric, LLC v. NLRB, concluded that a Minnesota-based employer committed an unfair labor practice when it modified its employee handbook “break” policy—without first notifying, and negotiating with, the incumbent union that represented a unit of its employees.
In Parsons Electric, the employer modified its handbook break policy to afford it more latitude in establishing job-specific break rules—as the collective bargaining agreement was silent as to breaks for bargaining-unit employees. Not surprisingly [many of my clients have held the same position], the employer’s position was that management rights language within the CBA permitted it to revise the handbook break policy without notice to the union and opportunity to bargain about the proposed policy change. Eventually, several employees complained to the union about the new policy—which was not as employee friendly as the company’s previous break policy. The union filed an unfair labor practice charge—alleging an unlawful, unilateral change to a term and condition of employment—here, employee breaks—which is a mandatory subject of bargaining [in most instances]. The NLRB sided with the union.
Although not raised in the Parsons opinion, it is important to note that broadly-worded management rights clauses do not generally authorize carte blanche changes to terms and conditions of employment that are mandatory subjects of bargaining, without notifying and negotiating with the union. However, if a management rights provision is worded in a manner that supports a specific action—in this case, expressly authorizing an employer’s right to unilaterally revise employee handbook policies governing employee breaks—the outcome in this case likely would have been different. This type of language, however, is not common to collective bargaining agreements, either because of a lack of bargaining leverage or because such language is low priority when placed in context.
Here, the employer wisely took the position that the revision to the handbook break policy was not a “material, substantial and significant” change, and thus, did not necessitate notice to the union and an opportunity to bargain about the change. The Court, however, did not buy this argument, and upheld the NLRB’s decision that Parsons committed an unfair labor practice by virtue of changing the policy.
NOTE: For the sake of full disclosure, one of my former colleagues represented the employer in this case.
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