In the Absence of a Negotiated Grievance Procedure, Employers Must Bargain With Unions Over Significant Employee Discipline

The NLRB recently ruled that an employer who is imposing “discretionary” and “material” discipline must consult with the union before doing so if that union has won a representation election but has not yet agreed to an initial contract. The NLRB described its ruling as the first in its “doctrinal context.”

The issue was whether an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline on a unit employee. After a majority of its employees voted in favor of representation by a union, but before execution of a first collective bargaining agreement, the employer disciplined certain employees without providing the union notice and an opportunity to bargain. The NLRB concluded as a matter of policy that, where a collectively bargained grievance and arbitration system does not yet exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline (e.g., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee. The NLRB defined discretion to include any instance in which management reserves to itself the right to consider all the circumstances, including the severity of the offense by an employee and possible mitigating circumstances, before imposing discipline.

Of course, almost all savvy employers have a progressive discipline system that preserves discretion for the employer in determining what step of the discipline process to impose. Thus, practically speaking, according to the Board, any employer who has lost a union election but has not yet negotiated an initial contract must bargain with the union before imposing a termination or suspension on a bargaining unit employee.