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Labor: NLRB makes pre-agreement discipline subject to bargaining with union

The board’s decision could make a less flexible disciplinary policy an attractive option for some companies

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.

The board also recognized matters that are left to the employer’s discretion are subject to bargaining once employees are represented by a union. This requirement to bargain applies regardless of whether there is a past practice associated with how the discretion is applied. However, broader terms of a disciplinary policy that are non-discretionary as to whether a violation occurred are not subject to bargaining. For employers with a newly represented workforce, this is little consolation. Despite these new obligations, the board recognized an “exigent circumstances” exception where pre-discipline notice and bargaining is not required. This exception exists where “an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.” Therefore, employers may immediately address an employee who is engaging in unlawful conduct or workplace violence.

Employers are not forced to bargain to impasse before imposing discipline in these circumstances. To address this concern, the board explained that employees must provide notice and an opportunity to bargain over matters of discretion. Once those duties are fulfilled, the employer may impose the discipline. Nevertheless, the NLRB found that an employer must still continue to bargain over the discipline after it is applied until an agreement is reached or there is an impasse on the issue.

Member Brian Hayes has often been the most vocal critic of the NLRB’s departure from precedent in recent years. In this case, however, he was recused from participating and did not offer an opinion on the matter. Although it is unlikely his participation would have changed the outcome of Alan Ritchey, his dissenting opinions have often given employers insight into arguments that may convince higher courts to overrule the NLRB’s opinion. The close of the year also marked the end of the Hayes era on the board, as his term ended on Dec. 16, 2012.

Employers face yet another NLRB-imposed requirement as a result of Alan Ritchey, Inc. Human resources personnel, supervisors and management are confronting an increasingly complex regulatory scheme as a result of some recent board decisions. Determining whether a decision to discipline is discretionary and undertaking notice and bargaining requirements adds another layer of concern. Additionally, employers will not be able to quickly and efficiently address disciplinary matters in many circumstances. Rather than executing an immediate resolution to issues of just cause that a problem employee presents, an employer will very likely have to submit the discipline to bargaining with the union. This process will inevitably take time and may leave issues to fester among the workforce. These potential problems with discretionary discipline under post-election and pre-agreement circumstances may make a less flexible disciplinary policy a more attractive option for your company.

Contributing Author

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

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Contributing Author

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Jesse Dill

Jesse R. Dill is an associate in the Milwaukee office of Arnstein & Lehr. He is a member of the firm’s Labor & Employment Practice Group....

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