American National Insurance Not a UFLP for employer to bargain for a “management functions” clause where that clause addresses terms and conditions of employment (TCE) –such a clause is a “TCE” Employer (or union) may bargain for any provision that covers TCE and that is not illegal (e.g, discrimination) Only question for Board is does matter being negotiated cover TCE?; if so Board may not become involved

Dissent in American National Insurance “... But where, as here, the employer tells the union that the only way to obtain a contract as to wages is to agree not to bargain about certain other working conditions, the employer has refused to bargain about those other working conditions. There is more than a semantic difference between a proposal that the union waive certain rights and a demand that the union give up those rights as a condition precedent to enjoying other rights. [343 U.S. 395, ]

Union Waiver of Right to Bargain A union may waive its right to bargain over a mandatory issue during the life of a collective bargaining, but the waiver must be clear and unmistakable (Metropolitan Edison v. NLRB, 460 U.S. 693, 708, 1983) –“In order to establish waiver of the statutory right to bargain over mandatory subjects of bargaining, such as those raised here, there must be clear and unmistakable relinquishment of that right... To meet the “clear and unmistakable“ standard, the contract language must be specific, or it must be shown that the matter sought to be waived was fully discussed and consciously explored and that the waiving party thereupon consciously yielded its interest in the matter. “ Bertam-Trojan, Inc., 319 NLRB 741, 150 LRRM 1321, 1995

Typical Management Rights Provision “... the sole and exclusive rights of management... include... the right to establish reasonable rules and regulations governing the conduct of employees....” Under this language, may the company unilaterally adopt an attendance policy without violating Section 8(a)(5)?