In Total Security Management, the Board on August 26 found that an employer contemplating discretionary discipline of an employee -- before it enters into a first collective bargaining agreement or has agreed upon a grievance procedure -- has a duty to give notice to the union and an opportunity to bargain. Meanwhile, the employer is generally required to maintain the status quo until agreement or impasse is reached. In other words, the employer cannot follow through with the discipline until the union agrees or the parties reach impasse. The rationale of the Board majority was that the exercise of disciplinary discretion by an employer involves a change of the status quo with respect to the affected employee. The Board’s holding includes some limitations: the newly-announced duty to bargain over discipline (1) applies only to disciplinary decisions that have an inevitable and immediate impact on employee tenure, status or earnings, such as suspension, demotion or discharge; and (2) does not apply to warnings, corrective actions, or counselings unless they are a step of progressive discipline under a policy that would lead to more severe discipline (which warnings, corrective actions, and counselings almost always are). Further, the Board limited the initial employer obligation to (1) notice to the union and (2) an opportunity for the union to be heard, along with (3) providing relevant information upon request to the union. (However, if the union wants to bargain, then the employer must bargain.) Finally, the Board explained that an employer, when “exigent circumstances” are presented, may deal with the situation promptly (for example, by suspending an employee pending investigation) and then bargain to agreement or impasse after the fact.
The Total Security Management decision tracks the rule of the Alan Ritchey case from December 2012 that became void when the Noel Canning decision was issued by the Supreme Court in June 2014. The decision lacks clarity and also represents a significant change to the way that the NLRA has been applied in the past. Given that much, if not almost all, employer discipline involves some exercise of discretion, the Board can be expected to find routinely that there was a duty to bargain over discipline. The rule will potentially have the greatest impact on employers who refuse to bargain while they seek judicial review of a Board certification of a union as a representative. Employers in this situation will face a dilemma: On the one hand, they face potential liability for back pay or other remedies if the certification is ultimately upheld. On the other hand, they cannot bargain with a union that is not legally the representative of the affected employees. In other words, employers in this situation will be between a rock and a hard place when it comes to handling disciplinary actions covered by the new Board rule.