LOOK AT WHAT THE NLRB JUST DID TO BARGAINING LAW
Although only FLRA sets legal policy for federal sector bargaining, it tends to follow what the NLRB does for private sector employees. Consequently, a recent Board decision might mean substantial changes for fed sector negotiators soon—and changes that boost union clout.
Just before the holidays the Board decided a case known as Alan Ritchey, Inc. and Warehouse Union Local 6, ILWU, 359 NLRB No. 40 (Dec. 14, 2012) The NLRB held that the employer violated the law by disciplining an employee after the union was certified in an election, but before the union had signed a contract.
It declared that, “. . . the employer has a duty to maintain an existing policy governing terms and conditions of employment and a duty to bargain over the discretionary application of that policy.” It made clear that, “even regular and recurring changes by an employer constitute unilateral action when the employer maintains discretion in relations to the nature or extent of the changes.” The Board made clear that this was necessary to avoid the appearance that the union is powerless despite the employee’s recent vote.
This distinction between changes in policy or practice versus the exercise of the discretion given management under one of those policies is huge for a newly certified union because it immediately restrains management until it agrees to a contract.
The Board concluded that the imposition of discipline was a “discretionary” act by management, e.g. deciding whether to discipline, when, and with what penalty. In this case, the employer only had broad, preexisting standards for discipline leaving it considerable discretion which it exercised unilaterally.
Going forward, the NLRB stated that employers wishing to take discipline after certification, but before a contract has been negotiated, will have to serve specific notice on the union and bargain before acting. It does not matter to the Board that the incident only involves one employee because even that would tend to make the union look powerless in the eyes of employees who just exercised their statutory right to bring in a union. Although the Board did not say this, you could almost hear it thinking it, i.e., the right to represent and bargain exists from the moment the union is certified, not from when it gets a contract.
There are some exceptions to or limitations on this obligation. First, the employer can act unilaterally if it has signed at least a skeletal agreement with the union providing a grievance-arbitration process to challenge its use of discretion. Second, it can act unilaterally if it is applying a preexisting, specific, nondiscretionary discipline policy, e.g., a rule providing that if an employee is AWOL on the day after a holiday he will be suspended for one day. Third, minor discipline such as warnings and counseling do not require notice and bargaining unless they have some unusual impact on the employee. Fourth, the employer need only bargain over the discretionary parts of its discipline program. For example, if the policy requires an AWOL be disciplined but leaves discretion to the manager as to what discipline to take, only the penalty selection issue would be negotiable. Fifth, if the employer has exigent circumstances it can implement immediately, e.g., the employee is a threat to other employees or corporate integrity. Sixth, the employer need not bargain to impasse, but if it does implement before impasse it is still obligated to finish bargaining after implementation. (At least that is how we read the decision. If you need to use this case decision, be sure to seek advice of an attorney. FEDSMILL is not providing legal advice.)
While this decision is great news for newly organized units, there may also have benefits for long-certified unions with contracts. Let’s suppose that a union has a contract, but it does not address or otherwise cover the employer’s disability reasonable accommodation program. This decision seems to tell us the union can demand to negotiate before the employer exercises any discretion that policy gives it, e.g., it chooses to buy for a single, disabled employee voice-recognition software so that she no longer must physically type. Although that may not be a change in the formal reasonable accommodation policy, it is a discretionary application of that policy.