A significant concern for many employers facing a representation election or its aftermath is losing the flexibility to appropriately handle employee disciplinary issues. The National Labor Relations Board (NLRB) did not do employers with these concerns any favors with its decision in Alan Ritchey Inc. near the close of the calendar year. Through this decision, with a three-member majority consisting of Chairman Mark Gaston Pearce and members Richard Griffin and Sharon Block, the board imposed new obligations to bargain following an election. Under the new standard, an employer must bargain over matters of discretionary discipline following the election of a union and prior to implementing a collective bargaining agreement.
The board’s analysis began by recognizing that an employer violates Section 8(a)(5) of the National Labor Relations Act by making any unilateral changes to the terms and conditions of employment of represented employees. Further, those changes that have a “material, substantial, and significant impact” on the terms and conditions of employment are subject to bargaining before the employer may impose them on represented employees. With regard to disciplinary matters, the board explained that suspension, demotion and discharge are the types of action that have a material, substantial and significant impact. Those disciplinary measures that have a lesser impact and may be addressed in bargaining after they are imposed include oral and written warnings.