Interpretive guidance issued by the National Labor Relations Board (NLRB) clarifies the power that an employer has to discipline employees during the time period between when the union wins a certification election and the employer signs a collective bargaining agreement. Although an employer can impose discipline during this time period, it is not without substantial risk.
In Total Security Management (August, 2016), the NLRB held that discipline such as suspension, demotion, and discharge were mandatory subjects of bargaining. Even though it may take months – or even years – to negotiate and sign an agreement, it may be an unfair labor practice to discipline employees without the union’s consent until the agreement is entered. An employer unilaterally disciplining an employee during this time period could be required by the Board to reinstate and give back pay to the discharged employee.
The Board’s General Counsel’s office recently issued Memorandum OM 17-14 on how to interpret and apply the Board’s decision in Total Security Management. The Memorandum clarifies that employers are not entirely without the power to discipline employees during the period of time between an election and the signing of the collective bargaining agreement. However, unilaterally taking disciplinary action is not without significant risk. It will be the employer’s burden of proof to show that: 1) the employee engaged in misconduct, and 2) the misconduct was the reason for the suspension or discharge.
As you should expect, Board counsel is not simply going to accept the employer’s explanation of its termination decision, and the union may also challenge the employer’s justifications, such as by showing there were mitigating circumstances for the employee’s actions or that other individuals who engaged in similar misconduct were treated differently.
Total Security Management Guidance: What Does it Mean for Employers?
First and foremost, in the period between certification of the union and execution of the collective bargaining agreement, employers must be very cautious regarding discipline. Disciplining employees without the union’s agreement – whether by suspension, demotion, or termination – may be challenged by either the Board counsel or the union through an unfair labor practice charge. Having just cause for the disciplinary action will be an affirmative defense to an unfair labor practice charge, and the employer must be prepared to bear the burden of showing that the employee engaged in misconduct justifying the discipline imposed, the misconduct was the reason for the discipline, and that the employer has applied the same discipline in a similar way to employees in similar situations.
This highlights the importance of consistently maintaining personnel files and records regarding discipline. Imposing and documenting discipline is one of the most disliked aspects of being and employer, but it is essential to keep records of employee performance, counseling, and discipline. If an employer finds itself in a situation where it must discipline an employee before the collective bargaining agreement has been entered, it should immediately collect, organize, and safeguard all the evidence that supports its actions. The failure to do so may trigger an unfair labor practice charge that ends with reinstatement of the employee and payment of back wages.