In the absence of a grievance and arbitration clause, employers whose employees are represented by a union must now provide the union with notice and opportunity to bargain before issuing “discretionary” employee discipline, pursuant to a recent National Labor Relations Board (NLRB or Board) decision.

In Alan Ritchey, Inc., 359 NLRB No. 40 the NLRB held that the duty to bargain before implementing discretionary discipline will apply to “disciplinary actions that have an inevitable and immediate impact on employees’ tenure, status, or earnings, such as suspensions, discharges, and demotions.” Lesser forms of discipline – like written and verbal warnings – require bargaining after they are implemented.

However, as stated above, this new duty to bargain will exist only where there is no collective bargaining agreement setting forth a grievance and arbitration procedure, and, hence the “question will usually arise only during the period after the union has become the employees’ bargaining representative, but before the parties have agreed upon a first contract, and only if the parties have not agreed upon an interim grievance procedure.”

Furthermore, the Board held that the bargaining implementation it imposed is “more limited than that applicable to other terms and conditions of employment.” In this regard, the employer is not required to bargain to agreement or impasse prior to implementing the discipline – “rather, if the parties have not reached agreement, the duty to bargain continues after imposition.”

The Board also made an exception for “exigent circumstances.” That is, employers may impose unilateral discretionary discipline in situations presenting “exigent circumstances” – such as where an employer has a reasonable good faith belief that the employee’s presence on the job will present a serious, imminent danger to the employer’s business or personnel.

According to the Board, the scope of “exigent circumstances” will be “best defined going forward, case-by-case,” but “would surely encompass situations where (for example)” an employee engages in unlawful conduct, poses a significant risk legal liability for the employer because of his conduct, or threatens safety, health, or security in or outside the workplace.

In spite of these limits, employers whose employees are represented by a union and which have no agreed to grievance and arbitration process need to be cognizant of their duties under Alan Ritchey before imposing discretionary discipline.