• Newly Organized Employers Must Bargain With Unions Over Employee Discipline in Absence of Contract, NLRB Rules
  • December 28, 2012 | Authors: Philip B. Rosen; James M. Stone; Harold R. Weinrich
  • Law Firms: Jackson Lewis LLP - New York Office ; Jackson Lewis LLP - Cleveland Office ; Jackson Lewis LLP - Reston Office
  • The National Labor Relations Board has held for the first time ever that once a company is required to bargain with a union, but has yet to negotiate a collective bargaining agreement, in most instances, it must also bargain with the union before imposing discipline on any represented employees. Alan Ritchey, Inc., 359 NLRB No. 50 (Dec. 14, 2012, published Dec. 20, 2012). The impact of this ruling is considerable since this situation occurs often during bargaining for an initial contract in a newly certified or recognized unit. The ruling is of even greater significance where an employer defers bargaining to test a Board certification of a unit. During the period before a court judgment issues, it would risk disciplining an employee in the unit in the event the court enforces the Board certification.

    The NLRB reasoned that the imposition of individual discipline was “inherently discretionary.” Therefore, the Board said, it represented a mandatory topic of bargaining each time discipline took place. The decision is to be applied prospectively from the date it issued and applies to any newly organized companies without collective bargaining agreements or negotiated grievance procedures in effect.

    Under prior NLRB law, even with a newly recognized or certified union, companies generally could continue to discipline employees without bargaining as long as they maintained and applied the same work rules as they had used prior to union recognition or certification. Changes in these rules would require bargaining.

    Changes in rules still would require bargaining under Ritchey. Now, however, even when discipline is imposed under an existing rule, the employer must bargain with its union over the decision to discipline in a given case (for example, in the case of an attendance or work rule violation, the issues would include whether the employee actually commit the violation, did the employer impose the correct level of discipline, and is the imposition consistent with past practice).

    There are a few exceptions under Ritchey. In cases involving lesser sanctions (oral and written warnings), employers may discipline first and bargain with unions afterwards. The company, however, must bargain to impasse or to agreement over the issue. In uncontroversial cases, this bargaining obligation may be met relatively quickly (although union efforts to consolidate support in the unit for upcoming negotiations may lead it to look for issues upon which to solidify union support or stir up antagonism toward the employer). In all cases, however, the situation will still involve communications or meetings with the union and either union acquiescence in the discipline or bargaining to impasse before the discipline becomes final. Officially, the company must remain willing to rescind such discipline until agreement is reached or impasse occurs. Documentation of such discussions and that agreement or impasse is reached is highly recommended to defend possible unfair labor practice charges.

    Employers will find it far more challenging under Ritchey when they impose serious discipline, such as suspension, demotion, or termination. In these cases, the company must notify and bargain with the union before it issues such discipline. Bargaining could necessitate furnishing the union with information on past discipline or other matters related to the discipline imposed. These obligations could delay the imposition of discipline for some negotiations with the union could first be required.

    Another a limited exception to this duty to bargain before imposing serious discipline exists where the company has a “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” (e.g., “exigent” circumstances, such as “unlawful conduct, creates legal liability for the employer, or threatens safety, health of security outside of the workplace”), then discipline may be imposed. However, the company would have the burden of proof to show exigent conditions are present.

    The only “safe harbor” from these obligations to bargain discipline during a period without a contract is to negotiate quickly with the union on an interim grievance procedure, which the NLRB said could substitute for the bargaining duty. An employer could also probably suspend employees with pay while doing the initial bargaining in serious cases and avoid back pay liability. However, taking this approach means a company might be paying an employee it intends to terminate while going through initial bargaining.

    The Board’s decision leaves many unanswered questions: How long precisely is bargaining required until serious discipline can be imposed? What exactly will be required to show impasse here? Will there be any impact to employer obligations after contract expirations? What precise legal standards will be used by the Board to evaluate whether an employer has complied with its bargaining obligations?

    Ritchey creates a substantial new requirement for newly organized employers that are bargaining a first contract. Ritchey creates an even greater dilemma for an employer that has refused to bargain to test a Board’s certification. If an employer bargains over disciplinary measures it may compromise its position that the union is not properly certified to represent its employees; but if refuses to bargain over discipline it may incur added liability for back pay and other relief if the union’s certification is ultimately upheld.

    This is yet another major change in the law detrimental to employers fashioned by the current NLRB. It is unclear how the courts will react to challenges to Ritchey that surely will follow. Such appeals, however, are not likely to produce any immediate changes in this rule. Thus, for now, newly organized employers have yet another troubling obligation to fulfill.