Employment Law Daily Employer need not give union notice, opportunity to bargain over discharges
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Thursday, June 20, 2019

Employer need not give union notice, opportunity to bargain over discharges

By Ronald Miller, J.D.

Because a union did not request post-discharge bargaining over four employees discharged after a union election but before the union was certified, the employer neither incurred a duty to bargain nor refused to bargain, where it had made no changes to disciplinary standards.

An employer did not violate NLRA Section 8(a)(5) and (1) by failing to provide a union notice and opportunity to bargain over the disciplinary discharge of four employees, ruled a divided three-member panel of the NLRB. The employer discharged the employees after the union won a representation election but before it was certified as the unit employees’ bargaining representative. The Board agreed with an administrative law judge that the employer had no duty to give the union notice and opportunity to bargain before discharging the employees. Still, because the employer applied unchanged standards in deciding to discharge the employees, it was required to bargain with the union after the discharges, upon request. In this instance, the union never requested after-the-fact bargaining. Member McFerran filed a separate opinion dissenting in part (Oberthur Technologies of America Corp., June 17, 2019).

In September 2012, the union narrowly won a representation election. On February 20, 2013, an administrative law judge issued a decision upholding the election. By letter dated March 11, 2013, the union requested bargaining. In addition to the general request for bargaining, the letter also advised the employer that it would regard any changes in terms and conditions of employment or the issuance of discipline without first providing it with notice and an opportunity to bargain as an attempt to unlawfully change, alter, or eliminate those terms and conditions.

Discharges. The employer filed exceptions to the election and the Board issued its decision certifying the union on August 27, 2015. During the interval between the ALJ’s decision and the Board’s decision, the employer discharged four employees for various disciplinary reasons. By letter dated September 1, 2015, the union again requested bargaining. The letter also expressed the union’s hope that the employer would abide by the Board’s August 27 decision, in which the Board found that the employer had unlawfully delayed unit employees’ bonuses, transfers, promotions, and wage increases and ordered it to make employees whole.

However, the union did not request post-discharge bargaining over the four terminated employees. Nor did the union reiterate its warning against discharging employees without giving the union notice and an opportunity to bargain, or make a standing request for post-discharge bargaining. By letter dated September 22, 2015, the employer refused to bargain a second time, informing the union that it intended to challenge the Board’s decision. On July 27, 2016, the Board granted the General Counsel’s motion for summary judgment, and found that the employer unlawfully refused to bargain with the union.

Pre-existing disciplinary policies. This case was controlled by Fresno Bee, in which the Board held that when an employer does not change its pre-existing disciplinary policies but merely exercises some discretion in applying them, the imposition of discipline pursuant to those policies does not constitute a change in a term or condition of employment. However, the Board also held that although an employer “has no obligation to notify and bargain to impasse with the [u]nion before imposing discipline,” it does have “an obligation to bargain with the [u]nion, upon request, concerning discharges, discipline, or reinstatement of its employees.”

Here, the record showed that the employer did not change the standards pursuant to which it decided to discharge the employees. Thus, even though it exercised discretion when applying those standards, it did not change any term or condition of employment, and therefore, it was not required to give the union prior notice and opportunity to bargain and did not violate Section 8(a)(5) and (1) by failing to do so, the Board held.

No union bargaining request. According to the Board, it was equally clear that the employer did not violate Section 8(a)(5) and (1) by failing to bargain over the four discharges upon request after the fact. The union never requested bargaining regarding any of the discharges. Moreover, there was no evidence that the union ever made a bargaining request by other means. In its March 11, 2013 letter, the union threatened litigation if the employer filed exceptions to the law judge’s February 20 decision, and so refused its request to bargain over an initial labor contract. In its September 1 letter, the union did not mention discipline or discharge at all, either generally or with respect to the four employees.

Duty to bargain upon request. Despite recognizing that the employer had no duty to give the union prior notice and opportunity to bargain before discharging the four employees, the ALJ nevertheless found that the employer violated Section 8(a)(5) and (1). However, the Board rejected the ALJ’s findings, concluding that the violation found by the law judge was legally groundless.

Under Fresno Bee, an employer has to give notice and opportunity to bargain before it changes its disciplinary standards, but not before it makes a decision to discharge a particular employee pursuant to those unchanged standards, even if the decision involves some discretion. Moreover, the employer has a duty to bargain about specific discharges after the fact, upon request. But there is no duty to provide after-the-fact notice and opportunity to bargain regarding specific discharge decisions.

As a matter of law, the duty at issue here was the duty to bargain on request. Without a request to engage in post-discharge bargaining, the employer neither incurred a duty to bargain nor unlawfully refused to bargain. Accordingly, the Board reversed the law judge’s finding that the employer violated Section 8(a)(5) and (1) by failing to provide the union notice and opportunity to bargain “at any time.”

Partial dissent. Member McFerran argued that the Board erred in finding that the union never requested bargaining about the discharge of the four employees. She urged that the record demonstrated that after the union won the election, it did prospectively demand bargaining over any discipline that the employer might issue against employees—which necessarily included the four discharges that followed. Moreover, even assuming that this specific demand was never made, Board law is clear that when an employer has unlawfully refused to recognize and bargain with a newly elected union at all, the union is not required to engage in the futile step of demanding bargaining over each and every issue as it arises.

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