The presidential address – management rights revisited

National Academy President Killingworth asserts that the “reserved rights of management” theory of contract interpretation is constrained by two factors: it is unrealistic in practice because, unless there is a no-strike clause, the employees’ right to strike renders all of the employer’s power conditional. Second, the Supreme Court, in Warrior and Gulf, ruled that the employer’s right to subcontract was arbitrable, notwithstanding Cab’s silence on subcontracting: “When an absolute strike clause is included in the agreement . . . everything that management does is subject to the agreement.” He also offers interpretative guidance on CBA silence.