Employer Has No Duty to Provide Union with Preimposition Notice or Opportunity to Bargain About Lesser Forms of Discipline: NLRB General Counsel's Office | Practical Law

Employer Has No Duty to Provide Union with Preimposition Notice or Opportunity to Bargain About Lesser Forms of Discipline: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) released an advice memorandum recommending that an NLRB regional office dismiss an unfair labor practice (ULP) charge against Kaplan International Centers for issuing written disciplinary warnings to employees without first giving their newly-certified union notice and an opportunity to bargain. The Division of Advice, interpreting Alan Ritchey, Inc., found that the employer did not violate Section 8(a)(5) of the National Labor Relations Act (NLRA) because it had no obligation to provide preimposition notice or bargain about disciplinary warnings that have no inevitable or immediate effect on employees' tenure, status or earnings.

Employer Has No Duty to Provide Union with Preimposition Notice or Opportunity to Bargain About Lesser Forms of Discipline: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 03 Jun 2014 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) released an advice memorandum recommending that an NLRB regional office dismiss an unfair labor practice (ULP) charge against Kaplan International Centers for issuing written disciplinary warnings to employees without first giving their newly-certified union notice and an opportunity to bargain. The Division of Advice, interpreting Alan Ritchey, Inc., found that the employer did not violate Section 8(a)(5) of the National Labor Relations Act (NLRA) because it had no obligation to provide preimposition notice or bargain about disciplinary warnings that have no inevitable or immediate effect on employees' tenure, status or earnings.
On May 28, 2014, the Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum dated March 24, 2014, recommending that an NLRB regional office dismiss an unfair labor practice (ULP) charge against Kaplan International Centers. The Division found that Kaplan did not violate Section 8(a)(5) of the NLRA when it issued written disciplinary warnings to employees without first giving their newly-certified union notice and an opportunity to bargain because the warnings had no inevitable or immediate effect on employees' tenure, status or earnings.
Kaplan operates several English as a Second Language centers in Manhattan, New York. Its employees are represented by a union bargaining for its first contract, and the parties have not agreed to an interim grievance-arbitration process while they negotiate.
In July 2013, the union demanded preimposition bargaining on all Letters of Clarity and Final Warnings that Kaplan issued to bargaining unit employees as part of Kaplan's progressive discipline policy. Kaplan refused, and the union filed a ULP charge against Kaplan in August 2013.
The Division of Advice concluded that Kaplan did not violate Section 8(a)(5) by issuing written disciplinary letters without first giving the union notice and an opportunity to bargain because it had no obligation to bargain about disciplinary warnings that have no inevitable or immediate effect on employees' tenure, status or earnings.
The Division noted that:
  • Under Alan Ritchey, Inc.:
    • discretionary discipline is a mandatory subject of bargaining;
    • when an employer has a discretionary disciplinary system and has not yet signed a collective-bargaining agreement addressing discipline, it must bargain with its employees' union over the discretionary aspects of any disciplinary action;
    • this duty to bargain attaches with each application of discipline;
    • although an employer typically must give a union notice and an opportunity to bargain before implementing any changes to mandatory subjects of bargaining, due to the unique nature of discipline, only actions that have an immediate effect on employees' tenure, status or earnings (such as suspensions, demotions and discharges) require preimposition notice and opportunity to bargain; and
    • lesser forms of discipline (such as warnings, corrective actions and counselings) are bargainable, but do not require preimposition notice and bargaining if they do not automatically result in additional discipline that itself would require bargaining.
    (359 N.L.R.B. slip op. 40, (Dec. 14, 2012).)
  • Kaplan has retained the necessary discretion over its disciplinary policy obligating it to bargain with its employees' union over all cases of individual discipline because it:
    • chooses whether and how severely to discipline employees; and
    • reserved the right to impose discipline without progressing through each step of the progressive discipline procedure.
  • However, the Letters of Clarity and Final Warnings that are the subject of the union's ULP charge do not have an inevitable and immediate effect on employees' tenure, status or earnings to require preimposition bargaining under Alan Ritchey. Although both letters affect employees' terms and conditions of employment:
    • neither has any impact on employees' wages, hours, seniority or status;
    • the Final Warning does not automatically lead to termination even if the employee engages in further misconduct; and
    • although the Final Warning converts employees to "probationary employees," in an at-will setting such as here, it does not appreciably change an employee's status.
Therefore, the Division found that Kaplan did not violate Section 8(a)(5) by refusing to engage in preimposition notice and bargaining over the Letters of Clarity and Final Warnings it issued to employees, and recommended that the charge be dismissed, absent withdrawal.

Practical Implications

Advice memoranda are not binding precedent on the panel (Board) heading the judicial functions of the NLRB. However, this advice memorandum provides guidance to employers about new law created in Alan Ritchey. In particular, it clarifies for which disciplinary actions the NLRB is likely to require preimposition notice and bargaining. For more information on Alan Ritchey, see Legal Update, Unionized Employers Must Bargain about Individual Discipline In Absence of a Collectively-bargained Grievance Process: NLRB.