When an employer has union-represented employees, the National Labor Relations Act ("NLRA") generally prohibits the employer from implementing changes to the employees' terms and conditions of employment without first giving the union the opportunity to bargain over the proposed changes. Historically, employers have had no duty to bargain with unions prior to making individual disciplinary decisions under the employer's existing policies. However, the National Labor Relations Board (the "NLRB" or the "Board") recently announced that, when no collectively bargained grievance procedure is in effect, employers now have a duty to bargain with a union prior to imposing discipline that involves employer discretion. This rule is expected to significantly disrupt a unionized employer's ability to manage its workforce when no collective bargaining agreement is in effect and may lead to a surge in unfair labor practice charge filings.
The New Rule Announced in Alan Ritchey, Inc.
In Alan Ritchey, Inc.,a union challenged an
employer's disciplinary decisions for absenteeism,
insubordination, threatening behavior, and the failure to meet
efficiency standards. The discipline at issue—which occurred
after the union was elected to represent the employer's
employees but before the implementation of a collective bargaining
agreement—ranged in severity from a formal warning to
discharge. The union argued that each disciplinary action involved
a measure of discretion rather than being a pure and objective
application of existing company policy or practice. Because the
employer had implemented the disciplinary actions without first
giving the union the opportunity to bargain over them, the union
filed unfair labor practice charges under the NLRA alleging that
the employer had violated its statutory duty to bargain with the
union.
In framing the issue posed by these charges, the NLRB began with
the proposition that an employer has an obligation to maintain the
status quo prior to the implementation of a collective bargaining
agreement. The Board thus recognized that an employer is generally
required to maintain existing personnel practices and policies when
a collective bargaining agreement is not in effect unless the union
agrees to a change or the parties bargain to impasse. The Board
noted, however, that the implementation of the
discretionary elements of those practices and policies
constitute mandatory subjects of bargaining if that implementation
would change the terms and conditions of employment of any
employee. Accordingly, the Board held that, absent a grievance and
arbitration procedure, employers have an obligation to bargain over
all discretionary disciplinary actions that effect changes in
employees' terms and conditions of employment. The Board
provided three reasons why, it claims, this new rule would not
unduly burden employers.
First, the Board clarified that the duty to bargain applies only
to disciplinary actions that "have an inevitable or immediate
impact on employees' tenure, status, or earnings, such as
suspension, demotion, or discharge." Thus, the Board stated
that disciplinary warnings, corrective actions, and counseling
ordinarily will not trigger the duty to bargain unless they
constitute a step under an employer's progressive discipline
policy that would result in a stronger disciplinary action such as
a suspension or discharge.
Second, the Board clarified that while employers ultimately have a
duty to bargain with the union about each such discipline until
either an agreement or an impasse is reached, the employer need not
delay the disciplinary action until the conclusion of bargaining.
Instead, an employer's bargaining obligation prior to
discipline consists of providing the union with notice and an
opportunity to be heard—which includes providing the union
with relevant information in response to a timely request by the
union. Once the employer has provided this opportunity to be heard,
it can then implement its discipline and resume post-implementation
bargaining until an agreement or impasse is reached.
Third, the Board clarified that an employer may forego
pre-implementation bargaining in any situation that presents
"exigent circumstances," such as when an employee
"has engaged in unlawful conduct, poses a significant risk of
exposing the employer to legal liability for his conduct, or
threatens safety, health, or security in the workplace."
However, the Board suggested that an employer could diffuse the
exigency by suspending the employee pending investigation, and then
engage in retrospective bargaining over the suspension as well as
prospective bargaining over any further disciplinary decisions
resulting from the employer's investigation.
While the Board stressed that the employer has a duty to bargain
only over discretionary aspects of disciplinary decisions,
the Board's opinion suggests an exceedingly broad definition of
"discretion." For example, even when applying "an
established practice of disciplining employees for
absenteeism," the employer would still have a duty to bargain
over "whether the employee actually was absent and merited
discipline under the established practice."
Recognizing that its decision flies in the face of the NLRB's
own precedent, the Board said this rule will apply only on a
prospective basis and declined even to apply the new rule to the
case before it.
Practical Implications
While this new obligation to engage in pre-discipline bargaining
applies in only limited contexts, it is likely to have a dramatic
effect on labor relations. The rule announced in Alan Ritchey,
Inc. pertains only to situations in which a union
represents employees but in which there is no collectively
bargained grievance and arbitration procedure in place. The rule
will thus generally apply in two circumstances: (i) prior to the
execution of a first contract with a newly certified or recognized
union; and (ii) after the expiration of one contract and before the
execution of the next contract, so long as the employer and union
have not agreed to an interim grievance procedure. During these
periods, the new rule announced in Alan Ritchey,
Inc. threatens to cause major disruptions to an
employer's ability to enforce its existing work rules and
disciplinary policies.
Despite the Board's emphasis on the fact that the obligation
to bargain applies only to discretionary decisions, the Board
suggests that virtually every disciplinary decision
involves discretionary components subject to mandatory bargaining.
As quoted above, the Board has taken the position that even
"an established practice of disciplining employees for
absenteeism" involves the discretionary determination that a
particular employee was indeed absent on a particular day. Under
such reasoning, it is difficult to imagine any disciplinary
decision that does not involve "discretion."
Accordingly, a unionized employer will now likely have an
obligation to give the union prior notice of each major
disciplinary action before effectuating the discipline, except in
certain extraordinary situations. This new rule therefore threatens
to delay the implementation of virtually all disciplinary decisions
that would result in termination or change an employee's terms
and conditions of employment. This potential delay is compounded by
the Board's announcement that an employer has a
duty—prior to imposing any discipline—to
"provid[e] the union with relevant information, if a timely
request is made, under the Board's established approach to
information requests."
The Board's decision in Alan Ritchey, Inc. marks a
dramatic change in the law that is likely to have a profound impact
on the way unionized employers discipline employees when a
collectively bargained grievance and arbitration procedure is not
in effect. Affected employers should educate managers, supervisors,
and human resources personnel about the new bargaining requirements
to avoid or minimize the risk of unfair labor practice charges
arising from disciplinary actions that were traditionally regarded
as being well within an employer's right to implement
unilaterally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.