December 16, 2019

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NLRB Limits Duty to Bargain Over Disciplinary Actions

A unionized employer must bargain with its employees’ union before making any unilateral changes in employees’ wages, hours, working conditions or other terms and conditions of employment.  Such changes are commonly referred to as mandatory bargaining subjects.  In Alan Ritchey, 359 NLRB 396 (2012) and later in Total Security Management, 364 NLRB No. 106 (2016), the Obama NLRB held that the discretionary discharge or suspension of a union employee was a mandatory bargaining subject — even when that discipline was carried out pursuant to an established company employment practice or policy.  Therefore, according to these two controversial Obama Board decisions and absent a collective bargaining agreement provision covering the discipline or some other overriding extenuating circumstance, an employer breached its duty to bargain and violated Section 8(a)(5) of the Act when it discharged or suspended a worker without first notifying the worker’s union of the employer’s intention to discharge or suspend the employee and without first affording that union a reasonable opportunity to meet and bargain with the employer.  However, a recent Trump Board decision, Oberthur Technologies, 368 NLRB No. 5, issued on June 17, signals a probable change in the Board’s governing case law on this issue.  

In Oberthur, a union narrowly won an election but was not certified as the employer’s employees’ representative until 35 months later.  During that lengthy interval, the employer discharged four employees — all pursuant to well established company polices predating the election — and all without putting the union on notice of the employer’s decision to take adverse action or affording the union the opportunity to bargain with the employer over these adverse decisions.  Thereafter, the NLRB’s General Counsel issued a complaint against the employer based on the Alan Ritchey doctrine and received an administrative law judge’s decision finding Oberthur’s four discharges to be unlawful and in violation of Section 8(a)(5).  However, the current Board reversed the administrative law judge’s decision, citing and applying the Board’s decision in Fresno Bee, 337 NLRB 1161 (2002), a case actually rejected and presumably overruled by the Obama Board in Alan Ritcheywhich held that an employer did not cause a change in working conditions requiring pre-discipline bargaining when it disciplined workers pursuant to its pre-existing disciplinary policies even if that disciplinary action involved the exercise of some discretion.  Based on Fresno Bee, the current Board dismissed the charges against Oberthur, holding that the Company did not make a change in working conditions when it carried out its disciplinary actions without prior notice to and/or bargaining with the union.  Further, consistent with Fresno Bee, the current Board noted that Oberthur would have been under a post-discipline obligation to bargain with the union if the union had requested to bargain.  However, since the union never requested to bargain about any of the discipline, the Board also found the company’s failure to bargain after the discipline lawful.

TAKEAWAYS:

Newly organized employers without collective bargaining agreements and unionized employers with expired contracts are likely free to discipline their union workers in accordance with the company’s existing employment policies and practices without first having to notify and bargain with its employee’s union.

Employers should inventory their existing employment policies and practices including their expired CBA provisions and, to the extent possible, impose adverse action against unionized workers pursuant to and in accordance with those extant policies and practices and expired provisions.

Where a union requests bargaining over an adverse action that has been taken, the employer should recognize its post-discipline duty to bargain and grant the union’s after the fact bargaining request.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

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John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees.

Mr. Bolesta also regularly counsels clients on all aspects of federal, state, and local equal employment opportunity and fair employment practices laws and regulations, and regularly advises clients on confidentiality, trade secrets, no solicitation and non-compete matters. Moreover, Mr. Bolesta represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. His experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

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