The National Labor Relations Board affirmed the 2011 administrative law judge (ALJ) decision dismissing the finding that the union waived its right to bargain with Virginia Mason Hospital over implementation of a policy requiring nurses to take a flu shot or wear a facemask. Applying the “clear and unmistakable” waiver standard, the ALJ held that the union waived its right to bargain based on:  (1) language in the management’s rights clause; (2) internal hospital guidelines; and (3) testimony that the hospital was required to have infection control policies in place, that it never bargained with the union over those policies, and that the union never objected to them.

In adopting the ALJ’s decision, the Board relied solely on the language in the management’s rights clause, which gave the hospital the right “to determine the materials and equipment to be used [and] to implement improved operational methods and procedures.” In light of the high burden the Board requires to establish a “clear and unmistakable waiver,” the Board’s reliance on this relatively general language is surprising. 

During the same week that it issued its Virginia Mason Hospital opinion, the Board decided another notable waiver case.  In Kennametal, Inc. and United Steelworkers, the Board considered whether the employer violated the National Labor Relations Act when it unilaterally implemented a new safety procedure that required employees to spend 5-10 minutes at the beginning of each shift reviewing and initialing a safety checklist. The ALJ had previously rejected the employer’s argument that the union waived its right to bargain based on language in the agreement. Surprisingly, the Board reversed the ALJ’s decision, finding that two of the agreement’s provisions read together—“the Employer shall continue to make reasonable provisions for the safety and health of its employees” and “the Employer and the Union agree to cooperate . . . in the enforcement of such reasonable safety and health rules as may from time to time be established”—demonstrated a clear and unmistakable waiver. 

While the Board’s decisions in these cases may be unexpected, particularly considering the current composition of the Board and the trend of its recent decisions, employers should continue to exercise caution before unilaterally implementing changes to the terms and conditions of employment.