NLRB Division of Advice Clarifies Duty to Bargain with Newly Certified Union over Discipline

by Franczek Radelet P.C.
Contact

Last week, the National Labor Relations Board’s Division of Advice issued a memorandum in which it clarified an employer’s duty to bargain with a newly certified union regarding the discipline of union-represented employees not yet subject to a collective bargaining agreement. In a case involving Kaplan International Centers, the Division explained that the duty to bargain with a new union set forth in the Board’s 2012 Alan Ritchey decision did not include a preimposition duty to bargain over warnings and certain other lesser discipline. While not carrying the binding force of a Board decision, the Division’s memorandum reaffirms that employers have at least some flexibility to discipline in the period after a union is newly elected.

In Alan Ritchey, the Board explained that discretionary discipline was a mandatory subject over which an employer was obligated to bargain with a newly certified union. Like the Kaplan case before the Division of Advice, Alan Ritchey arose after employees had voted to be represented by a union, but before the parties were able to enter into a collective bargaining agreement. The company had continued to impose discipline for various infractions pursuant to its longstanding progressive disciplinary system. The Board held that, absent “exigent circumstances,” an employer must bargain with a new union before imposing a discretionary suspension, demotion, or discharge. On the other hand, the Board explained that an employer may impose lesser sanctions before bargaining, as long as it bargains afterward. The Board maintained that the difference in the timing of the duty to bargain was appropriate because suspensions and discharges affect an employee’s terms and conditions of employment in a way that oral and written warnings do not.

The Division of Advice clarified this “pragmatic exception” in finding that Kaplan’s written warnings to employees did not have “an inevitable and immediate effect on employees’ tenure, status, or earnings.” Accordingly, the union could not demand “preimposition bargaining” over the disciplinary measures. Kaplan had issued roughly ten first or final warnings to employees who taught English as a second language to Kaplan clients. The initial written warnings informed the workers that a failure to improve performance could lead to further discipline, up to and including discharge, while the final written warnings indicated that any further unacceptable conduct could result in immediate discharge.

With both types of disciplinary actions, the Division of Advice noted that the warnings did not appreciably change an employee’s at-will status. While the warnings clearly impacted the teachers’ terms and conditions of employment, they lacked the “inevitable and immediate impact” required under Alan Ritchey to trigger a duty of preimposition bargaining. Accordingly, the Division recommended that the union’s unfair labor practice charge be dismissed.

While this decision helpfully outlines some of the limits of the Board’s preimposition bargaining requirement, cases involving the Board’s decision in Alan Ritchey remain high on the NLRB General Counsel’s priority list for prosecution, as we explained in a recent alert. We will continue to monitor these and other NLRB developments and will provide updates when appropriate.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!