If you are responsible for labor or human relations at a unionized employer, your job just got tougher last month. In two decisions issued on back to back days in December, the National Labor Relations Board eliminated two long-standing, bright-line rules favorable to employers relating to their duty to bargain: 1) the ability to discipline represented employees without first bargaining with the union; and 2) the right to refuse to produce confidential witness statements to the union in response to information requests. As if elimination of those rules were not concerning enough for employers, the Board’s new law in these areas will create additional burdens for labor and human relations administrators in performing their day-to-day duties.
On December 14, 2012, the Board in Alan Ritchey, Inc., 359 NLRB No. 40 (2013), reversed decade-old precedent and held that employers can no longer issue discretionary discipline unilaterally without bargaining with the union unless there is an agreement providing for a grievance procedure. Accordingly, where an employer’s disciplinary system is fixed as to broad standards, but discretionary as to what type of discipline will be imposed, the Board now requires that:
after the employer has decided (with or without an investigatory interview) to impose certain types of discipline, it must provide the union with notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to implement the decision. As explained below, at this stage, the employer need not bargain to agreement or impasse, if it does so afterward. In exigent circumstances, as defined, the employer may act immediately, provided that, promptly afterward, it provides the union with notice and an opportunity to bargain about the disciplinary decision and its effects. Finally, if the employer has properly implemented its disciplinary decision without first reaching agreement or impasse, the employer must bargain with the union to agreement or impasse after imposing discipline.
(See our previous post summarizing Alan Ritchey for more specifics regarding the bargaining obligations.)
As a result, unionized employers without an agreed upon grievance procedure must now determine to what extent they can exercise discretion in their disciplinary policies, and then bargain with the union regarding the exercise of that discretion whenever it seeks to discipline an employee. For example, presume that an employer has a no-fault attendance policy that proscribes certain discipline at various levels of attendance points, but the employer’s policies reserve the right for the employer to exercise discretion in the enforcement of its policies. If the employee has accumulated enough points to warrant a suspension under the attendance policy, the employer must now bargain with the union before suspending the employee, which will include responding to any information requests the union might serve seeking information regarding the consistency with which the employer has applied its policies and the level of discipline issued to other employees for similar infractions. Accordingly, this new bargaining obligation can delay the issuance of discipline and create significant additional work for labor and human resources administrators at a time when they are trying to direct their efforts towards negotiations for a new collective bargaining agreement.
Similarly, on December 15, 2012, the Board held in Piedmont Gardens, 359 NLRB No. 46 (2012), that the disclosure of witness statements in response to a union's request for information will now be governed by the balancing test articulated by the Supreme Court in Detroit Edison v. NLRB, 440 U.S. 301 (1979), that is used to determine when employers must produce confidential information to the union. Previously, the Board had a bright-line rule providing that employers had no duty to produce confidential witness statements produced during an investigation in response to a union's information request under Anheuser-Busch, 237 NLRB 982 (1978).
This decision is problematic for labor and human resources professionals, and thus their employers, for two reasons. First, the fact that employers might have to produce confidential witness statements to the union will likely discourage some employees from cooperating during investigations because they fear retribution by the union and/or their co-workers. Employers can no longer make assurances of confidentiality when asking an employee to submit a witness statement and thus cannot comply with the guidelines issued by the Equal Employment Opportunity Commission regarding confidentiality.
Second, labor/human resources administrators must now either become labor law professionals or frequently engage such professionals to determine, on a case by case basis, whether it must produce confidential witness statements in response to an information request. Even then, as Member Hayes highlights with a quote by former Board Member Brame, it will be difficult to chart the legally acceptable course:
It would take the wisdom of Solomon and the time of the ages for the Board, on a case-by-case basis, to attempt to grade and classify all potential forms of employee misconduct and to determine how the gravity of the offense ranks in the majority’s subjective scale of various legitimate interests. Moreover, there is no correlation between the majority’s perceptions of the nature of the misconduct and the potential peril to an informer. When the informant gives up information that results in an employee’s dismissal, it does not matter if the discharge is because of workplace theft or drug use. The employee’s job is lost just the same and the resentment of fellow employees toward the informer is likely to be just as great.
An employee contemplating whether to provide confidential information should not be required to attempt to predict how the Board will apply its subjective balancing test . . . . Such a rule will have a chilling effect on informants and employees.
As such, it is clear that the jobs for some labor and human resources professionals just got a lot tougher as a result of both Alan Ritchey and Piedmont Gardens. It is not yet known whether either employer will file a petition for review challenging these decisions, but we will keep you posted on any developments in these cases as well as any other ALJ or Board decisions applying these new Board rules.