An important change appears to be taking place in measuring the limitations upon an employer's independent right to run his business. Where this question was formerly tested under the National Labor Relations Act,' which defines the scope of the duty to bargain, recent developments suggest that the scope of independent employer action' henceforth will be determined through the arbitration process.This is a salutary development, since the question of the scope of independent employer action is a complicated one and ought to be resolved by application of the surest kinds of guidelines. A carefully drafted collective bargaining agreement can spell out the priorities of the parties and indicate to the arbitrator the limitations on employer action upon which the parties have mutually agreed. In contrast, when employer action is challenged under section 8(a) (5)of the Act, formalistic criteria, permitting unilateral action whenever it comes within the label "basic management prerogative,"have been utilized. If the scope of employer independent action is to be determined by the arbitral process, the parties to the collective bargaining agreement must be given the widest possible latitude in spelling out their priorities in negotiations. For this reason, whatever the validity of a narrow approach to the scope of section 8(a)(5) in dealing with challenges to employer unilateral action, that section should be applied expansively in dealing with the range of subjects that may properly be raised in negotiating a collective bargaining agreement.
Robert J. Rabin,
Limitations on Employer Independent Action,
27 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss1/6