Following another pro-union decision by the National Labor Relations Board (NLRB) in Alan Ritchey Inc. (359 NLRB No. 40, Dec. 14, 2012), employers now have a duty to bargain with newly elected unions over discretionary discipline during the period leading up to implementation of a first contract. The rule applies prospectively.
Under this ruling, while the parties are bargaining for a first contract, an employer may not unilaterally exercise discretion in imposing significant discipline such as suspension, demotion, or discharge. The pre-imposition bargaining obligation attaches only when a disciplinary action has an “inevitable and immediate impact on the employee’s tenure, status, or earnings.” Pre-imposition bargaining is required even where the proposed discipline is issued pursuant to the employer’s pre-existing disciplinary policy.
Bargaining over lesser sanctions may be deferred until after the sanction is imposed. The Board does little to explain what actions are included under this standard, other than to say it “expect[s] that most warnings, corrective actions, and the like will not require pre-imposition bargaining.” The Board adds a caveat, however, requiring that even lesser disciplinary actions will require pre-implementation bargaining if the action could automatically result in additional discipline through an employer’s progressive disciplinary system.
The Board Recognizes An “Exigent Circumstances” Exception
The Board recognizes an “exigent circumstances” exception. When “an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel,” pre-discipline notice and bargaining will not be required—bargaining can occur after immediate action, such as suspension, is taken. The scope of such “exigent circumstances,” the Board specifies, will be “best defined going forward, case-by-case.” Unfortunately, the ambiguous “case-by-case” standard leaves employers vulnerable to unfair labor practice charges whenever the exception is utilized.
Bargaining Is Not Required Over Non-Discretionary Discipline
Theoretically, a disciplinary rule such as an absenteeism policy could be non-discretionary so that bargaining over implementation of discipline is not required. The Board provides an example. In a workplace where the employer has an established practice of disciplining employees for absenteeism and established consequences for the absence, there is no obligation to bargain over whether absenteeism is generally an appropriate grounds for discipline. However, bargaining will be required over whether an individual employee actually was absent. Most employers, and probably most employees, would not like non-discretionary systems. Indeed, a non-discretionary disciplinary system could even increase union vulnerability for an employer.
Applying the New Rule Will Be Difficult
The Board’s decision offers little practical guidance on applying the new rule and raises more questions than it answers. According to the Board, where the pre-imposition duty to bargain exists, employers must provide “sufficient advance notice to the union to provide for meaningful discussion concerning the grounds for imposing discipline…as well as the grounds for the form of discipline chosen….” Additionally, employers must provide relevant information to the Union, if a timely request is made, under the Board’s established approach to information requests. The Board does not explain what constitutes “sufficient advance notice” or “meaningful discussion.”
The Board says employers are not required to bargain to agreement or impasse prior to imposing the discipline. Nevertheless, the Board specifies employers must continue to bargain over discipline after it is applied until an agreement is reached or there is an impasse on the issue. Thus, preventing further misconduct by problem employees will be challenging because disciplinary actions will not be finalized until after weeks or months of bargaining.
Because of the complexity of the new rule, employers will have a difficult time determining when bargaining must occur and the extent of the bargaining required. Employers will be forced to make subjective determinations that are highly susceptible to scrutiny by unions and the Board.
The Decision Impacts Newly Organized Employers Dramatically
From the management perspective, this decision substantially complicates the disciplinary process following the election of a new union. Practically speaking, newly organized employers will not be able to quickly and efficiently address disciplinary matters. Instead, they likely will have to bargain over discipline in most cases. In some situations, employers may conclude their hands are tied from issuing any disciplinary action due to the complications imposed by this decision.
Because it can take months or even years to negotiate a first contract, the new rule has far reaching implications for newly unionized employers. Such employers may opt to negotiate an interim grievance procedure with the union, depending on the workforce and disciplinary policy at issue. If the parties agree to an interim grievance procedure, the new rule no longer applies. However, some employers may be hesitant to give the union an early bargaining victory by agreeing to an interim grievance procedure.
In the wake of this and other recent NLRB rulings, management and human resource professionals face an increasingly convoluted and pro-union regulatory scheme. However, the enforceability of these decisions is in question. On January 25, 2013, we informed you the District of Columbia Circuit Court of Appeals declared President Obama’s recess appointments to the NLRB unconstitutional. See DC Circuit Court of Appeals Throws Out Recess Appointments to the NLRB . If that appellate opinion is upheld, the Alan Ritchey, Inc. decision, as well as any decision issued by the NLRB during the period on or after January 4, 2012, could be nullified.