Ken Dolin Published in the National Law Journal

“Provena St. Joseph”

Ken Dolin’s article, “Provena St. Joseph,” was published in the January 7, 2008 issue of the National Law Journal. In his article, Ken examines the National Labor Relations Board’s decision in Provena St. Joseph, which upheld the traditional waiver standard in determining whether an employer’s unilateral action is unlawful. Additionally, the NLRB rejected the use of a “contract coverage” analysis.

In Provena, the employer maintained that it had the authority to act unilaterally under the management rights clause, in the absence of a specific limitation to the contrary, and because the union had historically acquiesced in its implementation of staffing incentives. Thereafter, the employer informed the union that it would be implementing a revised attendance and tardiness policy. The union then filed a grievance demanding bargaining.

In a 2-1 panel decision, the NLRB found that the employer’s unilateral implementation of its incentive policy was unlawful, but that the union waived its bargaining power with respect to the employer’s newly implemented disciplinary policy on attendance and tardiness. Under the waiver test reaffirmed in Provena, an employer’s unilateral change is ordinarily unlawful unless the contract clause “clearly and unmistakably” waives the union’s right to bargain.