On June 26, 2012, the NLRB issued a decision in Kennametal, Inc. Key litigated issues in the case were whether the employer, Kennametal, Inc., violated the NLRA by:

In February 2010, Kennametal implemented a new safety initiative at its facility in Lyndonville, Vermont, requiring each employee to:

Kennametal erased the whiteboard at the end of the day and retained only the completed alert forms. However, employees were concerned that their initials could be used as evidence against them in disciplinary proceedings, and one employee was threatened with discipline after he repeatedly refused to initial the whiteboard.

A Union representative sent Kennametal a request for information on July 16, 2010, asking for bargaining concerning the new procedure and the effects the procedure would have on the bargaining unit employees. Kennametal did not respond.

Around that time, Kennametal also began implementing a new safety disciplinary policy that it had created a year earlier, providing that serious safety violations could be punishable by a 3-day suspension for a first offense and termination for a second offense. This policy was inconsistent with Kennametal's previous practice of progressive discipline for safety violations. Kennametal did not give the Union direct notice of the new disciplinary policy, but it posted the policy on a bulletin board at its Lyndonville facility in February 2009.

The Union filed unfair labor practice charges against Kennametal, and an NLRB administrative law judge (ALJ) found Kennametal had violated the NLRA by:

Kennametal appealed by filing exceptions with the panel (Board) heading the NLRB's judicial functions.

A three-member panel of the Board reversed the ALJ's decision in part, finding Kennametal did not violate the NLRA by implementing the safety checklist requirement because the Union waived its right to bargain over Kennametal's implementation of safety policies in its collective bargaining agreement (CBA). However, the Board upheld the ALJ's findings that Kennametal violated the NLRA by both:

The Board found that two provisions of the parties' CBA constituted a waiver of the Union's right to bargain over safety rules. The first provision stated Kennametal was responsible for continuing to make reasonable provisions for its employees' health and safety. The second referred to the reasonable health and safety rules that "may from time to time be established by [Kennametal]." Taken together, the Board found these two provisions were specific enough to constitute a waiver of the Union's bargaining rights on safety rules.

However, the Board found Kennametal violated the NLRA by failing to respond to the Union's request for information about the safety checklist requirement. When a union waives its right to bargain over a change in a term or condition of employment, it is not entitled to information requested for that purpose. However, according to the Board, a union may be entitled to that information if it gives the employer actual or constructive notice of another legitimate basis for requesting the information. In this case, since the Union asked for information on the safety checklist requirement to bargain about the effects the procedure would have on the bargaining unit employees, and not just the decision to implement the rules, the Board found Kennametal violated the NLRA by failing to respond to the request.

Finally, the Board held that Kennametal violated the NLRA by unilaterally changing its policy of progressive discipline. Although the Union had sufficiently waived its right to bargain over Kennametal's implementation of safety policies, nothing in the CBA permitted Kennametal to unilaterally change the disciplinary consequences for employees who committed safety violations. The Board also found this allegation was not time-barred, as Kennametal failed to prove the Union had either actual or constructive notice that its disciplinary policy changed more than six months before the Union filed its unfair labor practice charges.

The Board's decision clarifies what constitutes an effective waiver of bargaining rights by contrasting the Union's effective waiver of the right to bargain over safety policies with the lack of a waiver to bargain over the employer's change in disciplinary policies for violations of those safety rules. The decision also highlights the Board's view that unions may request information about issues over which they have waived their right to bargain if the union gives the employer notice that it has another legitimate basis for requesting the information, such as to aid bargaining about the effects of the change in terms of conditions of employment.

For more information on collective bargaining rights and waivers of these rights, see Practice Note, Collective Bargaining under the National Labor Relations Act.