Last week, the National Labor Relations Board’s Division of Advice issued a memorandum in which it clarified an employer’s duty to bargain with a newly certified union regarding the discipline of union-represented employees not yet subject to a collective bargaining agreement. In a case involving Kaplan International Centers, the Division explained that the duty to bargain with a new union set forth in the Board’s 2012 Alan Ritchey decision did not include a preimposition duty to bargain over warnings and certain other lesser discipline. While not carrying the binding force of a Board decision, the Division’s memorandum reaffirms that employers have at least some flexibility to discipline in the period after a union is newly elected.

In Alan Ritchey, the Board explained that discretionary discipline was a mandatory subject over which an employer was obligated to bargain with a newly certified union. Like the Kaplan case before the Division of Advice, Alan Ritchey arose after employees had voted to be represented by a union, but before the parties were able to enter into a collective bargaining agreement. The company had continued to impose discipline for various infractions pursuant to its longstanding progressive disciplinary system. The Board held that, absent “exigent circumstances,” an employer must bargain with a new union before imposing a discretionary suspension, demotion, or discharge. On the other hand, the Board explained that an employer may impose lesser sanctions before bargaining, as long as it bargains afterward. The Board maintained that the difference in the timing of the duty to bargain was appropriate because suspensions and discharges affect an employee’s terms and conditions of employment in a way that oral and written warnings do not.

The Division of Advice clarified this “pragmatic exception” in finding that 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 “preimposition bargaining” over the disciplinary measures. Kaplan had issued roughly ten first or final warnings to employees who taught English as a second language to Kaplan clients. The initial written 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.

With both types of disciplinary actions, the Division of Advice noted that the warnings did not appreciably change an employee’s at-will status. While the warnings clearly impacted the teachers’ terms and conditions of employment, they lacked the “inevitable and immediate impact” required under Alan Ritchey to trigger a duty of preimposition bargaining. Accordingly, the Division recommended that the union’s unfair labor practice charge be dismissed.

While this decision helpfully outlines some of the limits of the Board’s preimposition bargaining requirement, cases involving the Board’s decision in Alan Ritchey remain high on the NLRB General Counsel’s priority list for prosecution, as we explained in a recent alert