NLRB Articulates Duty to Bargain with Newly Elected Unions before Imposing Discretionary Discipline

Contributed by Carly Zuba

In Alan Ritchey, Inc. and Warehouse Union Local 6 (Dec. 14, 2012) the National Labor Relations Board decided that an employer whose workforce is represented by a newly-elected labor union must bargain with the union before taking discretionary disciplinary action that would have an immediate impact on the tenure status or earnings of an individual bargaining unit employee, such as discharge or demotion. The Board held that this duty exists after the union has become the employees’ bargaining representative, but before the parties have agreed upon a collective bargaining agreement.

The Facts: A majority of the employer’s employees in an appropriate bargaining unit voted in favor of representation by Warehouse Union Local 6, International Longshore and Warehouse Union. After the union became the employees’ bargaining representative but before the parties agreed upon a collective bargaining agreement, the employer applied its progressive disciplinary system for four different causes of discipline.  In all four areas – absenteeism, insubordination, threatening behavior and failure to meet efficiency standards – the employer admitted that it exercised discretion in deciding whether to impose discipline and what form of discipline to impose.  Additionally, the Employee Handbook expressly reserved to the employer the right to exercise discretion in the enforcement of its policies.  In other words, when determining whether to discipline and the level of discipline to impose, the employer was guided by “fixed” policies, but ultimately decided each case based upon the circumstances. 

The Union filed unfair labor practice charges against the employer, stating that the employer had a duty to provide the Union with notice and an opportunity to bargain about the disciplinary actions at issue. The Board ultimately agreed.

Limit to Duty: In ruling that certain discipline requires employers to provide notice and bargain with the Union, the Board explained that not every unilateral change that affects terms and conditions of employment triggers the duty to bargain – rather, the Board asks whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment. So, discretionary actions such as suspension, demotion, and discharge – actions that have an inevitable and immediate impact on employees’ tenure, status, and/or earnings – must be bargained over before these sanctions are imposed.  On the other hand, disciplinary actions such as oral and written warnings have a lesser impact on employees; as such, the Board stated that there is no duty to bargain over these types actions.

Requirements of Duty: The duty to provide notice entails giving sufficient advance notice to the union to provide for meaningful discussion concerning the grounds for imposing discipline and the grounds for the form of discipline chosen, to the extent that these choices involved an exercise of discretion.  This duty also includes responding to a timely union request for relevant information, under the Board’s established approach to information requests.  However, the Board clarified that requiring the employer to bargain about its intention to discipline an employee will not require the employer to negotiate to an agreement or impasse with the union; instead, if no agreement is reached, the duty to bargain about disciplinary action will simply continue after the disciplinary action’s implementation.

Practical Recommendations for Employers in Light of Decision: Employers that wish to avoid uncertainty in complying with this decision should consider negotiating an interim grievance procedure with the union before a full CBA is reached. If the union can be convinced to enter into such a procedure, it should acknowledge the employer’s right to discipline consistent with its past policies and practices and clearly provide for the employer’s right to impose discipline before notifying or negotiating with the union.

In cases where an interim grievance procedure is not reached, employers should be sure to notify the union of its intent to discipline, before discipline is actually imposed.  Notification should occur only after the employer has conducted an investigation (if necessary) and decided upon a plan of action for the discipline.  This notification should identify the employee to be disciplined, the basis for the discipline, and the intended level of discipline.  The notification should give the union a reasonable but definite time-frame within which to bargain about the discipline.  The notification could possibly state that if the union does not express an intent to bargain about the discipline within that time frame, the employer will assume that the union does not wish to bargain and will proceed with imposing the discipline.

Finally, employers with expired contracts should consider agreeing to extend and apply the grievance and arbitration provisions of the expired contract during the gap of time between contracts.