Negotiating Disciplinary Decisions in Newly Organized Bargaining Units

The employees have just voted for union representation, but they do not yet have a first collective bargaining agreement. Once they have a contract, they hope that it will require the employer to show “just cause” for discipline or discharge, and include a grievance and arbitration procedure through which the union can challenge unjust disciplinary decisions. But what happens until then?

In 2016, in Total Security Management Illinois I, LLC, the National Labor Relations Board (NLRB) answered that question for private sector employees, holding that a newly organized union has a limited right to pre-disciplinary bargaining over certain types of discipline decisions, even if no contract has yet been reached.

Broadly speaking, in order to have a right to bargain before discipline, the proposed discipline must be serious, such as a suspension, demotion or discharge. Also, the disciplinary decision must involve an exercise of discretion by the employer – for example, balancing factors like the employee’s overall work record, the seriousness of the offense, or the employee’s degree of fault in the matter. A progressive discipline policy that reserves the employer’s right to skip steps in the process is one indication that discretion is involved in disciplinary decisions.

The right to pre-disciplinary bargaining does not apply where the employee’s misconduct presents “exigent circumstances,” such as where the misconduct threatens safety, health, or security, or involves unlawful conduct posing a significant risk of exposing the employer to legal liability.

Where an employer intends to exercise discretion to impose serious discipline, it must notify the newly organized union in advance, and give the union an opportunity to bargain over the discretionary aspects of the discipline before it makes its final decision. This right is limited, however, so the union cannot unreasonably delay the discipline by dragging out the bargaining process. It may request relevant information about the misconduct and proposed discipline, and the employer must respond. But if the parties cannot agree within a reasonable amount of time, the employer may proceed with the discipline, provided that it continues bargaining with the union after imposing the discipline.

The parties can negotiate an alternative procedure, if they wish. The NLRB recognized a “safe harbor,” under which the parties could agree to a different means of addressing disciplinary decisions during the time between the union election and ratification of the first contract. One means of doing so is to agree to use an interim grievance procedure for contesting disciplinary decisions.

The rule announced in Total Security is prospective, applying only to discretionary discipline decisions made after Aug. 26, 2016, so there was no remedy for the employees at issue in that case. However, the NLRB outlined what the remedy should be when the employer fails to bargain before imposing serious, discretionary discipline: The employee should be made whole, unless the employer can show that the employee engaged in misconduct, and that the misconduct was the reason for the discipline, taking into consideration evidence of, for example, mitigating circumstances, or disparate treatment of similarly situated employees.

Neither the employer nor the union appealed the ruling, so any challenges to the Total Security rule will be raised in a future case. On this point, it is worth noting that Total Security was decided by the Obama-appointed NLRB, and it is not unusual for the board to reverse its own decisions after a new president appoints new members to the board. Total Security was a 3-1 split decision, and the lone dissenter, Republican Philip Miscimarra, has since been appointed Acting Chair of the NLRB by President Trump. For the time being, Total Security is the law of the land, but watch this space for future developments.

Do you have questions about how Total Security might apply to your workplace? Contact one of Willig, Williams & Davidson’s labor attorneys for assistance.