Employment Law Daily Employer must bargain before disciplining union-represented employees not yet covered by CBA
Tuesday, September 6, 2016

Employer must bargain before disciplining union-represented employees not yet covered by CBA

By Ronald Miller, J.D. An employer must provide notice and an opportunity to bargain to its employees’ bargaining representative before exercising its discretion to impose certain discipline on individual bargaining unit employees, absent an agreement with the union providing for a process. A divided four-member panel of the NLRB found that discretionary discipline is a mandatory subject of bargaining and that employers may not unilaterally impose serious discipline. According to the Board, the narrow scope of the bargaining obligation and the limited nature of the duty to bargain were tailored to minimize their effect on an employer’s ability to effectively manage its workforce. Further, this holding was to be applied prospectively—so the allegations in this case were dismissed. Member Miscimarra dissented in part (Total Security Management Illinois 1, LLC, August 26, 2016). Disciplining individual employees. This dispute arose after the employees voted to be represented by a union, but before the employer and union had entered into a CBA or other agreement governing discipline. The employer discharged three bargaining unit employees without prior notice to or bargaining with the union. The employer did not apply any uniform policy or practice regarding discipline for their asserted misconduct. At issue was whether the discharges were unlawful. The primary question was whether the employer has a duty to bargain before disciplining individual employees when the employer does not alter broad, preexisting standards of conduct, but exercises discretion over whether and how to discipline individuals. The Board has long held in other contexts that once employees choose to be represented, an employer may not continue to act unilaterally with respect to terms and conditions of employment—even where it has previously done so routinely or at regularly scheduled intervals. Other than in Alan Ritchey, Inc., which was invalidated by the Supreme Court’s ruling in NLRB v. Noel Canning, the Board has never clearly and adequately explained how (and to what extent) this established doctrine applies to the discipline of individual employees. Notice and an opportunity to bargain. Here, the Board determined that an employer may not impose discipline without first giving a union notice and an opportunity to bargain, where the employees were represented by the union but not yet subject to a CBA. After an employer has preliminarily decided (with or without an investigatory interview) to impose serious discipline, it must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before imposing the discipline. In the Board’s view, permitting the employee to address the proposed discipline through his or her bargaining rep is likely to lead to a more accurate understanding of the facts, a more even-handed and uniform application of rules of conduct, often a better and fairer result, and a result the employee is more able to accept. Given that a bargaining obligation may delay the implementation of discipline, the Board sought to minimize the burden on employers to the greatest extent possible consistent with its duty to protect Section 7 rights. To that end: first, the pre-imposition bargaining obligation attaches only with regard to the discretionary aspects of those disciplinary actions that have an inevitable and immediate impact on an employee’s tenure, status, or earnings, such as suspension, demotion, or discharge. Second, where the pre-imposition duty exists, the employer’s obligation is simply to provide the union with notice and an opportunity to bargain before discipline is imposed. This entails sufficient advance notice to the union to provide for meaningful discussion concerning the grounds for imposing discipline, and providing the union with relevant information, if a timely request is made. On the other hand, an employer may act unilaterally and impose discipline without providing notice and an opportunity to bargain in any situation that presents exigent circumstances—that is, where an 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 personnel. Finally, an employer need not await an overall impasse in bargaining before imposing discipline, so long as it exercises its discretion within existing standards. After fulfilling its pre-imposition responsibilities, the employer may act, but it must continue to bargain concerning its action, including the possibility of rescinding it, until reaching agreement or impasse. Prospective application only. Were the new rule to apply in this case, the majority would find that the discharges at issue had all the characteristics of discipline that required pre-imposition bargaining; yet no such bargaining occurred. Nevertheless, the controlling factors weighed against retroactive application in this case, the Board held, so the rule was to apply prospectively only. Consequently, the employer did not violate Section 8(a)(5) when it refused to bargain with the union over certain disciplinary actions. Partial dissent. In an exhaustive dissent, Member Miscimarra argued that the majority had cast aside many fundamental labor law principles. He disagreed with the Board’s creation of entirely new requirements and restrictions regarding discipline, pointing to the Supreme Court’s decision in First National Maintenance. "[I]n establishing what issues must be submitted to the process of bargaining, Congress had no expectation that the elected union representative would become an equal partner in the running of the business enterprise in which the union’s members are employed," the Court said. Accordingly, he dissented from the Board’s adoption of the new requirements, and from the remedial principles that it intends to apply in future cases.

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