OAKBROOK TERRACE — While unions and employers focus on bargaining points like pay and benefits ahead of their first contract, they’re also obligated to put discretionary discipline on the table, according to a recent National Labor Relations Board decision.
While that’s always been the case, it’s not likely parties on either side realized the obligation, Howard Bloom, a Jackson Lewis employment attorney in Boston, told the Cook County Record.
“If you’d polled unions and employers, many of them would have said: 'What are you talking about?' They wouldn’t have known it,” Bloom said. “It’s just not something on your radar screen. I’m not sure it happened in a large percentage of the pre-first-contract cases. So now you have this case that has come out and it’s probably going to increase the percentage.”
At issue in the case, involving Total Security Management Illinois 1 LLC, was whether the company, based in west suburban Oakbrook Terrace, broke the law when it discharged three employees before informing the union and giving it a chance to bargain over the action.
At the time, Total Security and the union representing its employees, the International Union Security, Police, Fire Professionals of America, hadn’t reached an initial collective bargaining agreement, nor another binding agreement that covered discipline. But Total Security took action against three security guards.
The NLRB later determined that discipline impacts employees’ terms and conditions of employment, and serious disciplinary action obviously affects their “tenure, status or earnings.” Bargaining must take place before serious discipline is imposed; otherwise, it harms the union’s effectiveness, the NLRB ruled.
The board reached the same conclusion in 2012 in a case that was later overturned by the U.S. Supreme Court because the appointments of two NLRB members were determined to be invalid.
The decision included a provision that employers may proceed with discipline even if they don’t reach an agreement with the union. Companies aren’t required to bargain over a disciplinary action that is considered nondiscretionary, meaning it’s controlled by an existing policy. The NLRB also leaves room for “exigent circumstances.” An employer can make a unilateral decision about serious disciplinary action if the employer has good reason to believe the employee poses a danger to business or other employees.
Bloom said the Total Security case sets a clearer road map for unions and employers. It will likely impact the way employers approach discipline in similar situations. As a result, they’ll likely think more strategically, he said.
The board made a distinction between serious and non-serious discipline, Bloom noted. In a situation in which action might have gone one way or another, an employer may opt for a non-serious action, such as a written warning, with a lesser obligation to bargain. An employee’s history, mitigating circumstances and the company’s own history in similar situations should also factor into the decision, he said.
Bloom advises his clients working on a first contract to bargain for a procedure for handling serious discipline. He said it’s often embraced by the union, as well, because it reduces the burden on them.
“It’s easier for them, too," Bloom said. "This adds a whole other layer of burden for them."
He added all sides are already negotiating an entire contract, and can get sidetracked without an established protocol for handling discipline.