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March 2013

NLRB Restricts Employers' Ability To Discipline Union-Represented Employees

In Alan Ritchey, 359 NLRB No. 40, the National Labor Relations Board created significant new bargaining obligations for employers making disciplinary decisions regarding its union-represented workforce, even if there is no collective bargaining agreement in place. Typically, this situation occurs during negotiations for a first contract.

The NLRB analogized most individual disciplinary decisions to “unilateral changes in terms and conditions of employment,” which are forbidden by NLRB law for employers with a union-represented workforce. Thus, the board imposed a bargaining obligation, which must be satisfied before serious disciplinary decisions that involve employer “discretion” can be carried out.

In the absence of a bargaining obligation, employers commonly reserve the right to determine the appropriate level of discipline for conduct and performance issues (i.e. discipline "up to and including termination").  The new burdens imposed by the NLRB seem to restrict an affected employer's ability to impose just about any disciplinary decision not dictated by an established system of progressive discipline.  

As a result, affected employers are now required to give the union notice and an opportunity to bargain prior to suspension, demotion, and discharge of any union-represented employee in the absence of a contractual grievance procedure or other mechanism for resolving the dispute.

The NLRB’s explanation of its rational indicates the far-reaching implications of the Dec. 14, 2012, decision:

“This duty entails sufficient advance notice to the Union to provide for meaningful discussion concerning the grounds for imposing discipline in the particular case, as well as the grounds for the form of discipline chosen, to the extent that this choice involved an exercise of discretion. It will also entail providing the Union with relevant information, if a timely request is made, under the Board’s established approach to information requests.”

The NLRB went further and held that even decisions to impose lesser discipline, including such oral or written warnings, are subject to bargaining. However, the board suggested that the employer may delay bargaining (to agreement or impasse) with the union until after discipline is imposed. 

Finally, the NLRB created an “exigent circumstances” exception that allows an employer to remove an employee from the workplace without bargaining if the employer has a “reasonable good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or its personnel.” 

The contours of this decision will likely take years to develop fully. Employers who are in negotiations for a first contract, or even a successor collective bargaining agreement, should proceed with caution and possibly consult qualified labor counsel prior to imposing any type of employee discipline, even if the decision does not represent any change to the employer’s disciplinary procedure.  

Employment Law

Jim McMullen

Employment Law