The National Labor Relations Board has found an employer’s unilateral implementation of a requirement that employees represented by a union sign the notes taken by a management representative during an investigative interview attesting to their veracity violates the National Labor Relations Act. Murtis Taylor Human Services System, 360 NLRB No. 66 (2014). The employer’s new signature requirement was a “material, substantial, and significant change in terms and conditions of employment” about which the union did not waive its right to bargain in the parties’ collective bargaining agreement’s management-rights clause.

In this case, the employer’s human resources director conducted an investigative interview of an employee’s conduct. Two management representatives took notes during the interview on their laptop computers. At the end of the interview, the director reviewed the notes, made changes, and gave them to the employee, directing him to review the notes, make any necessary changes and then sign the document. The document included the following statement below the signature line: “Refusal to acknowledge the veracity or to correct a statement in writing is equivalent to a refusal to cooperate with the administrative investigation.” 

The employee declined to sign the notes because he did not believe they were accurate or complete. The director told the employee that he could take the notes to his attorney for review, but if he did not sign the notes, he could not return to work until he signed them. The director also gave the employee a document stating that his refusal to sign the notes was insubordination and a “class III infraction.” When the employee continued to refuse to sign the notes, the director collected the employee’s badge and keys. This was the first time the employer had required an employee to attest to the veracity of investigative interview notes. The employer did notify the union prior to the interview that it would be implementing such a requirement.

The NLRB found the employer had violated the NLRA by unilaterally introducing the signature requirement without giving the union notice and an opportunity to bargain about the new requirement. In so doing, the NLRB rejected the employer’s contention that the union had waived its right to bargain over the change in the collective bargaining agreement’s management-rights clause. The NLRB found a provision in that clause giving the employer “the right to make and alter from time-to-time reasonable rules and regulations . . .” did not constitute a “clear and unmistakable waiver” of the union’s right to bargain about the signature requirement. According to the NLRB, the “rules and regulations” language in the management-rights clause was “couched in general terms and does not clearly cover” the signature policy. Rules and regulations language that “does not mention any policies or procedures relating to investigative interviews, or investigations of any kind” is “too vague to constitute a waiver of the Union’s statutory right to bargain over the imposition of [the] new requirement,” the NLRB said. Therefore, the employer did not meet its burden, as the party asserting the waiver, to establish the parties “unequivocally and specifically” agreed to allow “unilateral employer action.” 

This case underscores that the scope of bargainable subjects is broad and that unionized employers may be required to bargain over even seemingly minor and incidental new requirements. It also points out that general management-rights clause language will not suffice as a clear and unmistakable waiver of a union’s right to bargain about mandatory subjects of bargaining.