Bargaining About Discipline Should Be Negotiators’ Priority

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By Lawrence E. Dubé

Managers and union agents must prepare to bargain about employee discipline even before they open negotiations on a traditional labor contract under a new legal rule, lawyers tell Bloomberg BNA.

An employer that ignores the rule will likely make costly mistakes, while a union that fails to take advantage of it may waste an opportunity to protect employees from disciplinary action.

What is the rule? Employers must give notice and an opportunity to bargain before imposing serious “discretionary” discipline on workers represented by a newly certified or recognized union that hasn’t yet negotiated a labor contract.

That means employers should carefully audit their own disciplinary rules and practices to ensure they don’t start a new bargaining relationship by violating the National Labor Relations Act, Amber Rogers, who represents management clients at Hunton & Williams LLP in Dallas, said.

Amy L. Rosenberger, who represents unions at Willig, Williams & Davidson in Philadelphia, said that a union which wins new bargaining rights for a company’s employees should move quickly to investigate and, if appropriate, challenge the employer’s disciplinary practices.

Duty to Bargain Before Discipline

The requirement comes from the National Labor Relations Board’s 2016 decision in Total Security Management Illinois 1, LLC (2016).

Before the employer has decided to impose serious discipline, the board said, the company must give the union an opportunity to bargain before proceeding to impose the discipline.The bargaining obligation covers serious actions that have an “inevitable and immediate impact on employee’s tenure, status, or earnings, such as suspension, demotion, or discharge,” the board said.

An employer may act unilaterally without bargaining in “exigent circumstances” where it reasonably believes an employee’s presence at work poses a significant legal or safety risk.

Obligation Applies to Discretionary Actions

In addition, if an employee is disciplined for an infraction that carries an automatic penalty, such as a rule that drinking alcohol on duty will always result in discharge, a union would not have the right to bargain before that discipline is imposed, the NLRB said.

In other cases, it may be more difficult to determine whether discipline is discretionary.

Rosenberger said several factors may point to an answer, including whether there is permissive language in an employer’s personnel policies giving management options on what kind of discipline to impose, whether the employer has a freedom to skip steps in a progressive discipline policy, and whether the employer’s policy leaves it discretion to reduce penalties for certain kinds of conduct.

Rogers told Bloomberg BNA that management should evaluate its own history and practice of discipline before a union arrives on the scene, not after.

If the employer always disciplines employees in the same way for a particular form of misconduct, publishing a clear rule with an automatic penalty may avoid a later debate about whether the employer was enforcing a discretionary policy, the management lawyer said.

Prompt Notice and Documentation Are Keys

Total Security doesn’t specify exactly how much notice a union is owed when management contemplates disciplining a worker, but Rogers and Rosenberger said the employer should notify the union as soon as management makes a preliminary decision.

“I’d reach out to the union early,” Rogers said, “whenever an employer’s investigation indicates there is going to be serious discipline.”

The Hunton & Williams lawyer said managers should be alerted to preserve relevant disciplinary records that a union will likely request. The employer should also carefully document its communications with the union to show that the employer satisfied its bargaining duties under the NLRA.

The stakes can be high for employers. Failing to give a union reasonable notice and a bargaining opportunity may lead the NLRB to conclude discipline was unlawful and must be remedied by an award of reinstatement or back pay.

Interim Agreement Has Advantages

An employer can avoid unfair labor practice charges under Total Security if negotiators work out a dispute resolution system for resolving such cases, Rogers and Rosenberger said.

For example, if an employer and union reach an interim agreement on how to handle disciplinary cases during the period while a full-blown contract is renegotiated, the employer would not have to give the union notice and a bargaining opportunity in each individual case.

Both lawyers said that if management and union negotiators can reach an agreement on such a process, they may find it preferable to litigating the employer’s compliance with Total Security.

Training Stressed for Company, Union Reps

There are some technical questions about Total Security that will eventually be resolved by the NLRB and courts, Rogers and Rosenberger said, but they advised employers and unions to be systematic now about adapting to the new bargaining rules.

Rogers said employers should train managers and supervisors to collect and preserve documents or information that may be relevant to disciplinary cases. The duty to bargain with the union includes the duty to provide relevant information on request, and management representatives should assume they will receive such requests from a new union.

Rosenberger said unions should train their business agents and stewards to navigate their way through the first stages of the new bargaining relationship. Unions will want to gather as much information as possible about the employer’s disciplinary policies and practices, and should be ready to act promptly in cases that arise before a collective bargaining agreement is finalized.

The NLRB has been clear in outlining the employer’s obligation to bargain before imposing discretionary discipline on an individual, Rosenberger said.

However, she said, a union may find the employees it will represent would be better served by an interim agreement that gives them a fair and expeditious method of settling disciplinary cases with the newly unionized employer.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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