Employer Didn’t Have to Consult Newly Certified Union About Serious Discipline

 

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Employers don't have a duty to bargain about certain employee disciplinary matters with a newly certified union before the first collective bargaining agreement is finalized, the National Labor Relations Board (NLRB) recently ruled. 

The board overturned an Obama-era decision that required employers to bargain with a new union over discretionary discipline that had serious consequences for the employee, such as a termination, demotion or suspension. In 2016, the board said such matters have an "immediate impact on employees' tenure, status or earnings" and are terms and conditions of employment that are mandatory subjects of bargaining. 

Supporters of the 2016 ruling say unions need to be able to protect workers during a critical period. The beginning of the relationship is when the union is most vulnerable to disaffection, because the union has no bargaining agreement to enforce, said Mark Pearce, executive director of the Workers' Rights Institute at Georgetown University Law Center in Washington, D.C., and former NLRB chair. 

On June 23, the board found that the bargaining obligation created in 2016 conflicted with Supreme Court and NLRB precedent. Brian Hayes, an attorney with Ogletree Deakins in Washington D.C., said the new decision is significant but has limited applicability. "It only applies to employers that have been newly unionized and do not yet have a collective bargaining agreement in place," he said.

Discretionary Disciplinary Actions

In the current case, the NLRB was asked to decide whether the employer violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by disciplining several employees without providing a newly certified union notice and an opportunity to bargain.

NLRA Section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of its employees." In Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016), the board said an employer must provide the union with notice and an opportunity to bargain about the discretionary aspects of an existing disciplinary policy before firing or taking other serious disciplinary action against a union-represented employee before the collective bargaining agreement is negotiated. The board provided an exception if the employee's "continued presence on the job presents a serious, imminent danger to the employer's business or personnel." 

An employer that failed to engage in such bargaining would be in violation of NLRA Section 8(a)(5) if it continued to exercise discretion over disciplinary matters in accordance with existing policies and practices.

In the current decision, the board said Total Security Management's pre-discipline bargaining obligation:

  • Conflicts with a specific board precedent and a Supreme Court ruling.
  • Misconstrues what constitutes a material change in working conditions.
  • Imposes a complicated and burdensome bargaining scheme.

The NLRB restored the prior rule that was effective before the 2016 decision. "[W]e find that the correct analysis … must focus on whether an employer's individual disciplinary action is similar in kind and degree to what the employer did in the past within the structure of established policy or practice," the board said.

The new ruling applies to retroactively "'to all pending cases in whatever stage,'" according to the decision.

Employer-Friendly Ruling

"As long as the discipline a newly unionized employer imposes prior to the negotiation of a first collective bargaining agreement is consistent with what it has done in the past, the employer will not have an obligation to give the union that represents its employees notice and an opportunity to bargain about the discipline," according to law firm Jackson Lewis.

Pearce said the new decision may leave workers vulnerable. "An employer who might be smarting at the fact that its employees had voted for a union can now use unilateral discretionary discipline to send a message to its employees that voting for a union was futile," he noted.

The decision is significant for employers, Hayes said, because it "continues to restore the traditional notion of what constitutes a 'unilateral change' that would require an employer to bargain with its union before implementation."

Employers are prohibited from making unilateral changes in terms and conditions of employment for the duration of a collective bargaining agreement unless the union has "clearly and unmistakably waived its right to bargain or the change is too minor to require bargaining," according to the board. The question in this case is whether employers can make certain unilateral disciplinary decisions before an agreement is reached.

In 2016, former President Barack Obama's board said 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." The board reasoned that disciplining individual employees "alters their terms or conditions of employment and implicates the duty to bargain if it is not controlled by pre-existing, nondiscretionary employer policies or practices."

In an announcement about the current ruling, President Donald Trump's NLRB said the board previously "misconstrued the Supreme Court's unilateral-change doctrine with respect to what constitutes a material change in working conditions." The board said the current decision "reinstates 80 years of precedent."

The decision is 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 24, 2020).

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