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 Ritchey, which 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.
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.