NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.