In 2012, the National Labor Relations Board issued the Alan Ritchey decision that changed the landscape of disciplining employees while negotiating with a union for an initial collective bargaining agreement. Until Alan Ritchey, companies that lost a union election were free to continue operating as non-union until a union contract was signed. Under Alan Ritchey, those companies can continue to operate non-union, except they need to negotiate major disciplinary action with the union before it is given to employees even if done before a union contract is signed. The case distinguished between disciplinary actions that have “an inevitable and immediate impact” such as suspension, demotion, and discharge on employee livelihoods and earnings, and less severe forms of discipline.

Recently, Kaplan International Centers lost a union campaign election and disciplined several employees while negotiating an initial contract. In an employer-friendly Memorandum of Advice from the NLRB’s Associate General Counsel, companies do not need to bargain over warning and certain other lesser discipline, including written warnings.

In labor law parlance, Kaplan’s written warnings to employees did not have “an inevitable and immediate effect on employees’ tenure, status, or earnings.” Accordingly, the union could not demand “pre-imposition bargaining” over the disciplinary measures.

Kaplan’s initial warnings informed the workers that a failure to improve performance could lead to further discipline, up to and including discharge, while the final written warnings indicated that any further unacceptable conduct could result in immediate discharge. According to the Associate GC, “in an at-will setting such as here, a Final Warning does not appreciably change an employee’s status.”