Employer Must Bargain with Union Before Imposing Discretionary Discipline

March 22, 2013 by Dale Brodsky

Of interest to those seeking legal advice related to the employer’s obligation to bargain when the issue is discretionary, rather than fixed disciplinary actions, a recent NLRB ruling provides guidance, summarized here by Dale Brodsky, a Partner at Beeson, Tayor and Bodine (BT&B). The NLRB recently addressed for the first time the question of whether an employer, in the absence of a contractual grievance-arbitration or just-cause clause, has a duty to bargain with a union before disciplining individual employees. This issue usually arises after employees have voted to be represented by a union but before the parties have entered into a contract.

The Board ruled that when an employer exercises discretion in deciding whether and how to discipline employees, it must first bargain with the union.

The Board has long held that a unionized employer may not unilaterally discontinue or change an existing practice, nor may the employer unilaterally exercise its discretion to act insofar as the decision affects wages, hours or working conditions. In Alan Ritchey, the Board extended the same rule to discretionary discipline cases: “an employer must maintain the fixed aspects of the discipline system and bargain with the union over the discretionary aspects (if any), e.g., whether to impose discipline in individual cases and, if so, the type of discipline to impose.

The duty to bargain is triggered before a suspension, demotion, or discharge, but after lesser punitive actions such as oral or written warnings. The Board explained that the employer meets its pre-imposition duty to bargain simply by providing notice to the union of the grounds both for imposing discipline and for the form of the discipline, information relevant to the discretionary aspects of the disciplinary process, and an opportunity to bargain that begins but does not have to conclude prior to imposition of the discipline. The Board explained that an employer need not wait for an overall impasse in contract negotiations or over the discipline itself before imposing discipline; rather, “so long as the employer continues to apply existing standards and procedures for discipline, the employer’s duty is simply to bargain over the discretionary aspects of the discipline.  After fulfilling its pre-imposition duties … the employer may act, but must continue to bargain concerning its action, including the possibility of rescinding it, until reaching agreement or impasse.”

The decision includes a few remarks certain to cause controversy.  For example, the Board noted that an employer may act unilaterally without providing notice to the union when the situation presents exigent circumstances, that is “where an employer has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.”  Given the possibility of controversy related to the ruling, Beeson, Tayer and Bodine’s Labor Law Practice Area is prepared to work with clients to define actions that are in compliance with the newly articulated rule.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.