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April 23, 2014

NLRB Delivers Yet More Pro-Union Rulings with Decisions on Discipline, Witness Statements

By now, employers have grown accustomed to pro-union decisions by the Obama administration’s National Labor Relations Board (“NLRB”). But two recent NLRB decisions more than simply rock the boat: They dramatically change how employee discipline and witness statements are treated.

One ruling now requires employers, under certain conditions, to bargain with unions over discretionary discipline of bargaining unit employees. The other ruling requires employers to disclose witness statements to unions that are obtained without a confidentiality guarantee, even if adopted by the witness.

Despite these pro-union decisions, as detailed in the rest of this alert, employers can mitigate union intrusion by drafting and/or revising disciplinary policies and procedures and collecting witness statements that comply with the Board’s new standards. Policy review, in tandem with training management-level employees on these matters, will help prevent union challenges against employers and the potential reversal of disciplinary suspensions or terminations.

CASE NO. 1 – BARGAINING & DISCIPLINE

On Dec. 14, 2012, in Alan Ritchey Inc. and Warehouse Union Local 6, International Longshore and Warehouse Union AFL-CIO, the NLRB held that unionized employers are required to offer unions the opportunity to bargain over certain employee discipline under certain conditions. Fortunately for employers, this bargaining power is limited.

Here are five points to help employers understand their obligations:

  1. The Board’s ruling only applies from the time the union has become the employees’ bargaining representative up until both parties have agreed upon a first contract. And even in such cases, the new rule will not apply if both parties have agreed to an interim grievance procedure. It is foreseeable that this new rule might also apply in instances of an expired contract.
  2. The Board’s decision applies only to changes in existing workplace policies and to suspensions, demotions, terminations and, potentially, other forms of discipline that materially and substantially alter employees’ terms and conditions of employment. The new ruling does not, however, apply to counseling or oral and written warnings.
  3. The decision applies only to the “discretionary aspects” of discipline, a broad term that covers instances when employers have flexibility in determining the level and severity of discipline.
  4. In exigent circumstances an employer may act immediately, so long as it provides the union with notice and the opportunity to bargain promptly afterward. Such exigent circumstances exist 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, e.g., when the employee has engaged in unlawful conduct or has threatened the safety, health or security of the employer’s business or workforce.
  5. Employers only need to provide unions with notice and the opportunity to bargain. Employers are not required to bargain to impasse or reach agreement prior to imposing discipline. Instead, employers may impose a selected form of discipline on the employee so long as the employer continues to bargain with the union over the imposed discipline.

WHAT'S AN EMPLOYER TO DO?

Here are some suggested action items and points of consideration in light of the Alan Ritchey Inc. decision:

  • Recently unionized employers (and employers with expired contracts) should ensure their new or revised policies adequately describe the duty to provide notice and an opportunity to bargain over certain forms of discipline, and clearly define the forms of discipline encompassed by the policy, as well as provide examples of when the Alan Ritchey Inc. rule applies.
  • Employers with a newly organized workforce should consider negotiating an interim grievance and arbitration procedure to avoid having to bargain over every suspension and termination. However, for some employers it may simply be better to bargain over such discipline rather than be obligated to arbitrate every such case. At least, both options should be considered.
  • Employers with expired contracts should also consider simply agreeing to extend and apply the grievance and arbitration provisions of the expired contract during the hiatus between contracts.

CASE NO. 2 – WITNESS STATEMENTS

On Dec. 14, 2012, the NLRB also issued its decision in Hawaii Newspaper Guild Local 39117, Communications Workers of America, AFL-CIO, holding that witness statements are not always protected from disclosure.

In this case, the union sought a witness statement that described a union steward’s confrontation with a supervisor, which ultimately led to the steward’s termination. The Board determined that although the duty to furnish information does not extend to witness statements, the phrase witness statements itself had not been previously defined. Accordingly, the Board narrowed its view on witness statements, mandating disclosure of statements that are obtained without a confidentiality guarantee, even if formally adopted by the witness.

The Board further ruled that the employer had failed to establish that the attorney work-product privilege, which protects documents from disclosure only if they were created specifically in anticipation of litigation. This view was despite the fact that the employer’s meeting with the witness came at the recommendation of its counsel.

Most importantly, the Board dismissed as unpersuasive the undated note appearing at the top of the witness statement at issue, which read “prepared at the advice of counsel in preparation for arbitration.” Although not novel, this portion of the Board’s ruling emphasizes that claims of privilege will rarely shield a witness statement from disclosure.

WHAT'S AN EMPLOYER TO DO? 

Here are some suggested action items and points of consideration in light of the Hawaii Tribune-Herald decision:

  • To avoid the disclosure of witness statements, employers should ensure that their new or revised policies require management to not only have witnesses sign and adopt statements, but also include a guarantee of confidentiality.
  • To increase the likelihood of the applicability of the attorney work-product privilege, employers should communicate with their counsel and seek clear guidance as to whether a witness statement should be obtained in anticipation of litigation.

STAY TUNED

Both the Alan Ritchey Inc. and Hawaii Tribune-Herald rulings make potentially significant changes to existing law and are just further examples of increasingly pro-union decisions that continue to burden employers with compliance obligations and the threat of costly litigation. Employers are well-advised to stay informed of such NLRB decisions and to take steps to comply with their resulting mandates.

© 2014 Neal, Gerber & Eisenberg LLP.

About the Author

Partner

Howard L. Bernstein represents employers throughout the U.S. in labor relations and employment law matters and employment-related litigation, with an emphasis on contract negotiations, arbitrations and injunction proceedings, NLRBelection campaigns, unfair labor practice cases and employment discrimination matters.

312-269-8447

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