NLRB Issues Significant Decisions At Year's End

As the term of Member Brian Hayes expired at the end of 2012, the National Labor Relations Board issued a flurry of recent decisions. The decisions highlight the Board's continuing foray into the non-union workplace through increasingly broad interpretations of protected concerted activity; grant a new right to unions to receive pre-arbitration witness statements and the right to bargain over pre-imposition of suspension, demotion, or termination during first contact negotiations; and continue to strike down arbitration agreements in the non-union setting.

Obligation to Bargain Over Pre-Imposition of Discipline

Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012). The Board found that after the union has been selected as the employees' bargaining representative, but before the first contract has been agreed to, the employer must bargain over discretionary discipline before it is imposed. Such discretionary discipline is a mandatory subject of bargaining, and a pre-imposition duty to bargain is triggered before a suspension, demotion, discharge, or any other discipline that alters the terms and conditions of employment. Lesser discipline, such as oral or written warnings, require only post-imposition bargaining if requested by the union. With regard to pre-imposition bargaining, an obligation attaches only with regard to discretionary aspects of disciplinary actions and requires that the employer provide the union with notice and the opportunity to bargain before the disciplinary action is imposed. An employer need not bargain to impasse before imposition, "so long as it exercises its discretion within existing standards." The Board carved out an exception to this bargaining obligation in exigent circumstances, which will be defined on a case-by-case basis. Such circumstances may include, for example, instances where "an employer has a reasonable, good-faith belief that an employee's continued presence on the job presents a serious, imminent danger to the employer's business or personnel[,]" such as where the employee has engaged in unlawful conduct potentially exposing the employer to liability or "threatens safety, health, or security in or outside the workplace." Thus, an employer may act unilaterally in such circumstances and is not required to provide the union with notice or the opportunity to bargain. Employers negotiating first contracts will now need to carefully analyze whether a suspension, demotion, or discharge involves any discretion, and if so, unless there are exigent circumstances, the employer must notify the union it is considering imposing discipline and allow the union to request bargaining over the decision to discipline.

Union's Right to Witness Statements Pre-Arbitration

Stephens Media, LLC, d/b/a Hawaii Tribune-Herald, 359 NLRB No. 39 (December 14, 2012). In the first of two decisions issued in the same week regarding making witness statements available to the union, the Board held that an employer was required to furnish a union with a statement signed by an employee and obtained during the course of a workplace investigation. According to the Board, the statement was not protected from disclosure as a witness statement under Anheuser-Busch, Inc., 237 NLRB 982 (1978) because the signing employee did not receive any...