The Law @ Work

Employers Hoping To Return NLRB’s Holiday “Gifts”

The NLRB was very busy this festive period. In its own Christmas rush, the NLRB issued several decisions that will eliminate any doubt but that employers were on the naughty list.

In one of those decisions, Alan Ritchey, Inc., the NLRB has ordered newly-unionized employers to bargain with the union before any grievance and arbitration procedure is agreed upon whenever the employer wants to suspend, demote, or discharge an employee. The ruling only applies from the time a union has become the employees’ bargaining representative up until both parties have agreed upon a first contract, but it will not apply if both parties have agreed to an interim grievance procedure. This new rule may also apply to expired contracts.

Forms of discipline that significantly alter the terms and conditions of employment are covered, but counselings or oral and written warnings are not. 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, which is almost all the time.

In emergencies, an employer may act immediately as long as it gives the union notice and the opportunity to bargain over the discipline promptly afterward. Such 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.

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 discipline after it is imposed. The ruling also gives unions a limited right to information relating to the discipline.

Bottom Line

The ruling is a potential nightmare for employers, but until and unless the decision is appealed and overturned, here is what you should do:

Newly- unionized employers should consider negotiating an interim grievance and arbitration procedure while during initial contract negotiations to avoid having to bargain over every demotion, suspension and termination. Of course, this may not make sense for all employers, in part, because first contracts often never are completed or take more than a year to complete.

Employers with expired union contracts should also think about simply agreeing to extend and apply the grievance and arbitration provisions of the expired contract during the time between contracts.

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