NLRB Overturned Numerous Precedents, Imposed Significant Burdens on Unionized Employers in 2012

by Holland & Knight LLP
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In addition to the significant actions taken by the National Labor Relations Board (NLRB or Board) in 2012 that affect all employers, the NLRB late last year issued several important decisions that affect unionized employers specifically. These decisions — which concern bargaining over discipline, confidentiality of witness statements obtained when investigating workplace incidents in the face of likely challenges under a grievance and arbitration procedure, and the obligation to continue collecting and paying dues to a union after a collective bargaining agreement expires — overrule decades of precedent. They also tip the balance of power in favor of unions. We expect further aggressive action from the NLRB in 2013.

NLRB Creates New Obligation to Bargain Over Discipline

The NLRB recently held that a newly organized employer that has not yet reached an agreement with the union concerning discipline (i.e., a grievance and arbitration procedure) is required to give notice and bargain with the union before imposing discipline pursuant to a discretionary discipline program, at least when the discipline involved is a discharge, suspension or demotion. Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012). The decision, which creates this obligation for the first time in the 77-year history of the NLRA, applies only prospectively.  

An employer need only bargain over the discretionary aspects of its discipline practice and discipline imposed through the exercise of discretion; it does not have to bargain over aspects of its disciplinary policy, practice or decision that are wholly consistent with past practice. The Board considers a policy that reserves to the employer the right to impose the discipline it determines is warranted under the circumstances to confer the kind of discretion requiring bargaining. Similarly, the Board stated that if a policy provides for a certain punishment for, for example, "threats" or "insubordination," discretion exists, and bargaining is required, with respect to the classification of the conduct as a "threat" or "insubordination." Such a bargaining obligation also does not exist once the parties have reached a contract containing a grievance and arbitration procedure.

The decision has some limitations. First, the Board stated that most other discipline (such as warnings, corrective actions and counselings) will not require pre-imposition bargaining. But pre-imposition bargaining may still be required if such actions are discretionary and they automatically result in additional discipline, based on an employer’s progressive disciplinary system.

Second, even where the pre-imposition duty to bargain exists (discretionary decisions over demotions, suspensions and discharges), the employer does not need to bargain to impasse before imposing discipline. The employer is required to give the union "sufficient advance notice" to "provide for meaningful discussion concerning the grounds for imposing discipline in the particular case, as well as the grounds for the form of discipline chosen, to the extent that this choice involved an exercise of discretion," and to provide the union "with relevant information, if a timely request is made, under the Board’s established approach to information requests." The extent of the duty to provide information is "limited to information relevant to the subject of bargaining: the discretionary aspects of the employer’s disciplinary policy." The purpose of the bargaining "is to enable the union to effectively represent employees by (for example) providing exculpatory or mitigating information to the employer, pointing out disparate treatment, or suggesting alternative courses of action."

Third, "an employer may act unilaterally and impose discipline without providing the union with notice and an opportunity to bargain in any situation that presents exigent circumstances: 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.'" The Board said that "exigent circumstances" will be defined on a case-by-case basis, but "would surely encompass situations where (for example) the employer reasonably and in good faith believes that an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to legal liability for his conduct, or threatens safety, health, or security in or outside the workplace."

Even when there is not a pre-imposition bargaining obligation (or when the employer imposes discipline before agreement or impasse) the employer still must bargain over its exercise of discretion with respect to discipline after imposition (if the union requests such bargaining). The post-imposition duty to bargain applies to all discipline. This bargaining must include the possibility of rescinding the discipline, and must continue until the parties reach agreement or impasse.

The bottom line is that in new bargaining relationships before the parties have reached a contractual resolution to discipline matters, employers will need to give the union notice of discretionary demotions, suspensions and discharges and at least listen to the union before imposing discipline, absent exigent circumstances.  

NLRB Sets New Rule on Confidentiality of Witness Statements

For almost 35 years, the NLRB held that witness statements obtained during an employer's investigation of workplace incidents are exempt from disclosure in pre-arbitration discovery, at least if the statement was given pursuant to assurances of confidentiality. That important ruling recognized that witness statements are often needed for employers to conduct a thorough investigation, and that employees will not give statements unless they are assured of confidentiality. But in a December 2012 decision, American Baptist Homes of the West, 359 NLRB No. 46 (December 15, 2012), the NLRB rejected the clear-cut, bright-line rule that witness statements are privileged from disclosure in pre-arbitration information requests.

Now, the rule is that if requested by the union, witness statements must be disclosed unless the employer establishes legitimate and substantial confidentiality interests, separate from any promise of confidentiality to the employee, such as an actual showing that the individual giving the statement is likely to suffer union harassment. Also, the employer must always bargain with the union over whether there is another way to provide the information that meets the employer's confidentiality concerns.  

Dues Checkoff Clauses Now Survive Expiration Of Bargaining Agreement (50 Years of Precedent Overruled)

An employer is generally required to maintain the terms of an expired collective bargaining agreement in force while it bargains for a new agreement. But a few terms — including arbitration, no-strike and union security — do not survive contract expiration. And for 50 years, the NLRB has held that dues check-off provisions do not survive contract expiration; an employer has been free to discontinue check-off and stop remitting dues to a union once a contract expires. This has given employers a significant economic weapon in bargaining.

But in another pro-union decision issued in December 2012, the NLRB overruled those five decades of precedent and held that going forward, an employer must continue dues check-off as part of the status quo after an agreement expires until it bargains to a new agreement or to impasse. This decision increases unions' bargaining power at the expense of employers. WKYC-TV, Gannet Co., 359 NLRB No. 30 (December 12, 2012). Because the decision substantially changed existing law, the NLRB decided to apply it prospectively and ruled that the employer did not violate the NLRA. In the future, though, unionized employers will not be allowed to stop collecting and remitting dues to the union pursuant to a contractual dues checkoff provision simply because the contract has expired. 

The decision does not address a situation where the language of the dues checkoff provision itself is expressly tied to the term of an agreement or similar language that clearly evidences the parties' intent to have the provision expire with the contract.

NLRB Imposes Obligation to Respond to Even Irrelevant Union Information Requests

In Iron Tiger Logistics, 359 NLRB No. 13 (October 23, 2012), the Board held that if the union makes an information request that is presumptively relevant — that is, it relates to the bargaining unit — an employer violates the NLRA by failing to respond in a timely manner, even if the Board later finds that the information sought really was irrelevant and the union was not entitled to it. The bottom line is that all information requests need to receive a timely response, even if the response is the request is irrelevant. Failure to respond — even to an irrelevant request — will itself be an unfair labor practice.

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.

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