When an employer has union-represented employees, the National Labor Relations Act (“NLRA”) generally prohibits the employer from implementing changes to the employees’ terms and conditions of employment without first giving the union the opportunity to bargain over the proposed changes. Historically, employers have had no duty to bargain with unions prior to making individual disciplinary decisions under the employer’s existing policies. However, the National Labor Relations Board (the “NLRB” or the “Board”) recently announced that, when no collectively bargained grievance procedure is in effect, employers now have a duty to bargain with a union prior to imposing discipline that involves employer discretion. This rule is expected to significantly disrupt a unionized employer’s ability to manage its workforce when no collective bargaining agreement is in effect and may lead to a surge in unfair labor practice charge filings.

The New Rule Announced in Alan Ritchey, Inc.

In Alan Ritchey, Inc., a union challenged an employer’s disciplinary decisions for absenteeism, insubordination, threatening behavior, and the failure to meet efficiency standards. The discipline at issue—which occurred after the union was elected to represent the employer’s employees but before the implementation of a collective bargaining agreement—ranged in severity from a formal warning to discharge. The union argued that each disciplinary action involved a measure of discretion rather than being a pure and objective application of existing company policy or practice. Because the employer had implemented the disciplinary actions without first giving the union the opportunity to bargain over them, the union filed unfair labor practice charges under the NLRA alleging that the employer had violated its statutory duty to bargain with the union.

In framing the issue posed by these charges, the NLRB began with the proposition that an employer has an obligation to maintain the status quo prior to the implementation of a collective bargaining agreement. The Board thus recognized that an employer is generally required to maintain existing personnel practices and policies when a collective bargaining agreement is not in effect unless the union agrees to a change or the parties bargain to impasse. The Board noted, however, that the implementation of the discretionary elements of those practices and policies constitute mandatory subjects of bargaining if that implementation would change the terms and conditions of employment of any employee. Accordingly, the Board held that, absent a grievance and arbitration procedure, employers have an obligation to bargain over all discretionary disciplinary actions that effect changes in employees’ terms and conditions of employment. The Board provided three reasons why, it claims, this new rule would not unduly burden employers.

First, the Board clarified that the duty to bargain applies only to disciplinary actions that “have an inevitable or immediate impact on employees’ tenure, status, or earnings, such as suspension, demotion, or discharge.” Thus, the Board stated that disciplinary warnings, corrective actions, and counseling ordinarily will not trigger the duty to bargain unless they constitute a step under an employer’s progressive discipline policy that would result in a stronger disciplinary action such as a suspension or discharge.

Second, the Board clarified that while employers ultimately have a duty to bargain with the union about each such discipline until either an agreement or an impasse is reached, the employer need not delay the disciplinary action until the conclusion of bargaining. Instead, an employer’s bargaining obligation prior to discipline consists of providing the union with notice and an opportunity to be heard—which includes providing the union with relevant information in response to a timely request by the union. Once the employer has provided this opportunity to be heard, it can then implement its discipline and resume post-implementation bargaining until an agreement or impasse is reached.

Third, the Board clarified that an employer may forego pre-implementation bargaining in any situation that presents “exigent circumstances,” such as when an employee “has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in the workplace.” However, the Board suggested that an employer could diffuse the exigency by suspending the employee pending investigation, and then engage in retrospective bargaining over the suspension as well as prospective bargaining over any further disciplinary decisions resulting from the employer’s investigation.

While the Board stressed that the employer has a duty to bargain only over discretionary aspects of disciplinary decisions, the Board’s opinion suggests an exceedingly broad definition of “discretion.” For example, even when applying “an established practice of disciplining employees for absenteeism,” the employer would still have a duty to bargain over “whether the employee actually was absent and merited discipline under the established practice.”

Recognizing that its decision flies in the face of the NLRB’s own precedent, the Board said this rule will apply only on a prospective basis and declined even to apply the new rule to the case before it.

Practical Implications

While this new obligation to engage in pre-discipline bargaining applies in only limited contexts, it is likely to have a dramatic effect on labor relations. The rule announced in Alan Ritchey, Inc. pertains only to situations in which a union represents employees but in which there is no collectively bargained grievance and arbitration procedure in place. The rule will thus generally apply in two circumstances: (i) prior to the execution of a first contract with a newly certified or recognized union; and (ii) after the expiration of one contract and before the execution of the next contract, so long as the employer and union have not agreed to an interim grievance procedure. During these periods, the new rule announced in Alan Ritchey, Inc. threatens to cause major disruptions to an employer’s ability to enforce its existing work rules and disciplinary policies.

Despite the Board’s emphasis on the fact that the obligation to bargain applies only to discretionary decisions, the Board suggests that virtually every disciplinary decision involves discretionary components subject to mandatory bargaining. As quoted above, the Board has taken the position that even “an established practice of disciplining employees for absenteeism” involves the discretionary determination that a particular employee was indeed absent on a particular day. Under such reasoning, it is difficult to imagine any disciplinary decision that does not involve “discretion.”

Accordingly, a unionized employer will now likely have an obligation to give the union prior notice of each major disciplinary action before effectuating the discipline, except in certain extraordinary situations. This new rule therefore threatens to delay the implementation of virtually all disciplinary decisions that would result in termination or change an employee’s terms and conditions of employment. This potential delay is compounded by the Board’s announcement that an employer has a duty—prior to imposing any discipline—to “provid[e] the union with relevant information, if a timely request is made, under the Board’s established approach to information requests.”

The Board’s decision in Alan Ritchey, Inc. marks a dramatic change in the law that is likely to have a profound impact on the way unionized employers discipline employees when a collectively bargained grievance and arbitration procedure is not in effect. Affected employers should educate managers, supervisors, and human resources personnel about the new bargaining requirements to avoid or minimize the risk of unfair labor practice charges arising from disciplinary actions that were traditionally regarded as being well within an employer’s right to implement unilaterally.