Notwithstanding Member Miscamarra’s detailed dissent showing the majority’s flawed reasoning and departure from long-standing precedent, the National Labor Relations Board (NLRB) recently imposed new bargaining obligations on recently organized employers that changes current law. In Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (August 26, 2016), the NLRB ruled that an employer in first contract bargaining with a recently certified or recognized union must provide “notice and the opportunity to bargain” to the union prior to imposing discretionary discipline on individual employees unless the parties otherwise have agreed to a disciplinary process. This new obligation will apply prospectively. . This decision effectively reaffirms the NLRB’s earlier decision in Alan Ritchey, Inc., 359 NLRB 40 (2012), which had been invalidated by the Supreme Court’s decision in National Labor Relations Board v. Noel Canning, 134 S.Ct. 2250 (2014).

Settled Board Law

It is well-settled that an employer may not unilaterally change terms and conditions of employment of union-represented employees without bargaining with the union. Changes can be implemented only if the parties reach an agreement or achieve an impasse in negotiations. The Board had not discussed specifically the application of this settled principle in the context of discipline and, generally, had adhered to permitting an employer to continue enforcement of policies and meting out discipline so long as the enforcement and discipline was consistent with pre-union enforcement and discipline for comparable infractions. Thus, employers historically have been able to continue to consistently enforce work rules, including imposing discipline, without concern for violating the National Labor Relations Act.

Discipline Bar and Discipline Bargaining

Using terms coined by Member Miscamarra in his dissent, the Board effectively has imposed a discipline bar and a requirement that the parties engage in discipline bargaining prior to meting out discipline that materially alters an employee’s terms of employment, i.e., suspension, demotion, discharge, and analogous sanctions. The Board reasoned that this notice and opportunity to bargain requirement would apply to the “discretionary” aspects of the employer’s decision. Notice and bargaining are not required for lesser sanctions, such as verbal or written warnings, but the lesser sanctions remain mandatory subjects of bargaining over which negotiation may be required.

The Board explained that an agreement or impasse on a disciplinary decision is not required for implementation if notice and the opportunity to bargain is properly extended, but post implementation negotiation must continue until an agreement or impasse is achieved, including the employer’s awareness of the possibility of the discipline being rescinded. The Board, however, did not opine on what constitutes sufficient notice and opportunity to bargain prior to implementation other than stating that the opportunity to bargain includes providing the union with relevant information if timely requested and limited to the discretionary aspects of the employer’s discipline policy. Employers do retain the ability to impose discipline in “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.”

Discretionary Versus Nondiscretionary

The Board struggled to distinguish between what aspects of existing discipline policies are discretionary and which are nondiscretionary. Thus, for example, the Board stated that where an employer has a policy or practice of disciplining employees for absenteeism, the meting out of discipline for absenteeism is not subject to negotiation because there is no question that the existing condition of employment prohibits absence from work. But, any discretion allowed in deciding the penalty for absenteeism (e.g., length of suspension or suspension versus discharge) is subject to bargaining. Similarly, an employer’s existing policy of progressive discipline is not subject to bargaining, but if the implementation of discipline is discretionary under the policy and would result in serious discipline to the employee (suspension or discharge arising from the progression), the nature of the discipline would be subject to negotiation.

Remedies

The Board instructs that remedies against employers that fail to provide notice and the opportunity to bargain prior to unilaterally imposing serious discipline should not be limited to a cease-and-desist order and an affirmative order to bargain over such decisions going forward, but should include make-whole relief, including reinstatement and back pay. In rejecting the notion that Section 10(c) of the Act precludes make-whole relief in all cases applying the new analysis, the Board majority opines that such determinations must be made on a case-by-case basis and that an employer may raise, as an affirmative defense, a claim that the employee was discharged for “cause” and not entitled to a make-whole remedy. The burden of proof, however, remains with the employer to show that the employee engaged in misconduct and that the misconduct was the reason for the adverse employment action. The General Counsel or Charging Party may challenge the employer’s contention, show mitigating circumstances exist, or show that the employer has not issued similar discipline for similar misconduct. The employer then bears the burden to show that it would have issued the discipline notwithstanding the mitigating or differing circumstances. In the end, the burden of proof remains with the employer.

Member Miscamarra’s Dissent

In his dissent, Member Miscamarra provides a detailed analysis of how the majority’s opinion departs from long-standing Board precedent, lacks reliable guidance on which parties can rely when faced with this circumstance, and creates a convoluted requirement to bargain over a single issue at a time when the parties should be focused on achieving a more global agreement on wages, benefits, and other terms and conditions of employment. He coins the phrases “discipline bar” and “discipline bargaining” to describe the new hoops through which an employer must jump to enforce the same preunion rules and discipline pending negotiation of a first contract.

In addition, Member Miscamarra opines that the majority’s decision is extremely broad and not necessarily limited to the time between when a union is first elected and a first contract achieved, but rather to any time when an agreement on disciplinary policy does not exist between the parties. This conundrum further confuses extant Board law that requires unchanged terms and conditions of employment pending agreement or impasse. In short, Member Miscamarra emphasizes that the Board’s new law not only scrambles long-settled precedent, but also provides little, if any, guidance on how compliance with the new standard can be accomplished.

Key Takeaways

Although an appeal of the Board’s decision is anticipated, employers lacking agreement with their employees’ representatives regarding the imposition of discipline may want to follow the notice and opportunity to bargain requirements articulated by the Board prior to imposing serious discipline on bargaining unit employees. As the Board majority acknowledged, future decisions applying the law announced in this case will further refine the definitions and remedial guidance based on a case-by-case, factually intensive analysis. In the interim, employers confronting this issue should understand that they must give notice and an opportunity to bargain before the implementation of any suspension, demotion, or discharge.

In addition, employers should review their disciplinary policies and protocols and consider revisions that mandate discipline without any discretion. The Board acknowledged that the “employer has no duty to bargain over those aspects of its disciplinary decision that are controlled by nondiscretionary elements of existing policies and procedures. Thus, the less discretion an employer exercises, the less bargaining will be required of the employer.” Employers, therefore, will need to balance their desire to exercise discretion against the requirements of notice and bargaining opportunity.