Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, January 21, 2013

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract

 Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12]), is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult. This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions
of employment triggers the duty to bargain.
Rather, the Board asks “whether the changes had a material,
substantial, and significant impact on the employees’
terms and conditions of employment.” Toledo
Blade Co., 343 NLRB 385, 387 (2004) (emphasis
added). This test is a pragmatic one, designed to avoid
imposing a bargaining requirement in situations where
bargaining is unlikely to produce a different result and,
correspondingly, where unilateral action is unlikely to
suggest to employees that the union is ineffectual or to
precipitate a labor dispute. We draw on this basic principle,
adjusted to fit the present context, today. Disciplinary
actions such as suspension, demotion, and discharge
plainly have an inevitable and immediate impact on employees’
tenure, status, or earnings. Requiring bargaining
before these sanctions are imposed is appropriate, as
we will explain, because of this impact on the employee
and because of the harm caused to the union’s effectiveness
as the employees’ representative if bargaining is
postponed. Just as plainly, however, other actions that
may nevertheless be referred to as discipline and that are
rightly viewed as bargainable, such as oral and written
warnings, have a lesser impact on employees, viewed as
of the time when action is taken and assuming that they
do not themselves automatically result in additional discipline
based on an employer’s progressive disciplinary
system. Bargaining over these lesser sanctions—which
is required insofar as they have a “material, substantial,
and significant impact” on terms and conditions of employment—
may properly be deferred until after they are

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