by Amber Rogers Hunton & Williams LLP 1445 Ross Avenue, Suite 3700 Dallas, Texas

Transcription

1 I ve Been Through the Desert on a Horse With No Collective Bargaining Agreement: An Employer s Obligation to Bargain Discretionary Discipline Before a First Contract After Total Security Management by Amber Rogers Hunton & Williams LLP 1445 Ross Avenue, Suite 3700 Dallas, Texas arogers@hunton.com I. Introduction Navigating a desert on a horse with no name is undoubtedly a treacherous and dangerous task. However, navigating the complex minefield of the National Labor Relations Act s rules following the unionization of a bargaining unit of employees can be far more treacherous and dangerous task for employers. After Total Security Management, the National Labor Relations Board (the Board ) has made this task even more treacherous for employers during the period between the election of the union representative and the reaching of a collective bargaining agreement. The Board s decision in Total Security Management places new obligations on employers to bargain during that period with a newly elected union before imposing discretionary discipline on an employee. This article provides a summary of the analysis and holding of the precursors to Total Security Management, the majority and dissenting opinions in Total Security Management, and provides a discussion of the Office of the General Counsel s memorandum issued on February 14, 2017, regarding case process guidelines for cases arising under Total Security Management. II. The Precursors to Alan Ritchey and Total Security Management An understanding of the Total Security Management decision first requires an examination of two decisions on which the Board heavily relied in crafting the decision: Washoe Medical Center and In Re Mcclatchy Newspapers, Inc. (Fresno Bee). Each decision is important for different reasons. Washoe Medical Center provides the basis for the Board s decision in Alan Ritchey (a case similar to Total Security Management that was invalided by Noel Canning) and Total Security Management to impose new bargaining obligations on employers for discretionary discipline, while Fresno Bee provides the basis for the critiques of the decision to impose these obligations. 1

2 A. Washoe Med. Ctr., Inc. Washoe Medical Center involved a newly-elected union s challenge to a hospital s salary administration policy. Prior to the union s election, the hospital maintained a salary administration policy which, among other things, set the wage rates for newly hired employees. Washoe Med. Ctr., Inc., 337 NLRB 202, 205 (2001). The policy stated that [s]alary grades and ranges are assigned based upon a formal evaluation of the position description, utilizing a single set of criteria applied uniformly to all jobs and set out the process for ranking jobs and competitiveness of salary structure, which were factors in determining a position s salary grades and ranges. Id. After the election, but prior to the execution of a collective bargaining agreement, the hospital continued its practice of assigning wage rates to newly hired employees pursuant to its salary administration policy. Id. at 208. The hospital, despite objections from the newlyelected union, did not provide an opportunity to bargain regarding the wage rates for the new positions. Id. This triggered the union to file an unfair labor practice charge, alleging that the hospital violated the Act by implementing new starting wages for newly hired employees without providing advance notice and an opportunity to bargain to the union. Id. at 203. Relying on the Board s decision in Oneita Knitting Mills, 205 NLRB 500 (1973), which held that an employer with a past history of a merit increase program neither may discontinue that program... nor may he any longer continue to unilaterally exercise his discretion with respect to such increases, once an exclusive bargaining agent is selected, the union argued that because the policy administration procedure required the hospital to exercise discretion in some aspects of how it fixed starting salaries, the hospital was required to bargain over the determination of those starting salaries. Id. at 209. The administrative law judge and the Board agreed with the union s argument, finding that [s]ince the procedure, by its terms, established a discretionary wage range, the starting wage rate was in no sense automatic, but [was] informed by a large measure of discretion, and the Union was entitled to bargain over the wage rate selection. Id. Therefore, the Board affirmed the administrative law judge s decision that the hospital s refusal to bargain over the discretionary aspects of its salary administration policy violated the Act. Id. 2

3 B. In Re Mcclatchy Newspapers, Inc. (Fresno Bee) Shortly after its decision in Washoe Medical Center, the Board in In Re Mcclatchy Newspapers, Inc., 337 NLRB 1161 (2002) (Fresno Bee), decided a similar issue as it did in Washoe Medical Center. Fresno Bee involved a newly-elected union s challenge to the discipline imposed by The Fresno Bee, a newspaper publisher and distributer, on bargaining unit members. Id. at After the union was elected, but prior to the execution of a collective bargaining agreement, the newspaper disciplined a number of employees pursuant to its wellestablished discipline policy which stated that employment may be terminated at will by the employee or The Fresno Bee at any time with or without cause and without The Bee's following any system of discipline or warnings. Nevertheless, The Bee may choose, in certain cases, to exercise its discretion to utilize forms of discipline that are less severe than termination. Id. at Prior to imposing the discipline, the newspaper did not give the union notice or an opportunity to bargain over the discipline, which, the union argued, violated Section 8(a)(5) of the Act. Id. at Similar to the argument advanced by the union and accepted by the Board in Washoe Medical Center, the union in Fresno Bee argued that because the newspaper exercised considerable discretion in disciplining its employees... [it was] required to notify and, upon request, bargain to impasse with the Union over each and every imposition of discipline. Id. The administrative law judge and the Board rejected the union s argument. Id. at The administrative law judge found that because [the newspaper] maintains detailed and thorough written discipline policies and procedures and made no unilateral change in lawful terms or conditions of employment when it applied discipline, it was not required to notify or bargain with the union over the discipline. Id. at The Board stated that the fact that the procedures reserve to [the newspaper] a degree of discretion or that every conceivable disciplinary event is not specified does not trigger an obligation to bargain regarding discipline imposed on employees. Id. The Board s reasoning in Washoe Medical Center applied to the facts of Fresno Bee would seemingly require a conclusion the opposite of that drawn by the administrative law judge and the Board, since the discipline policy in Fresno Bee allowed the newspaper to exercise considerable discretion in applying the policy. However, the decision in Fresno Bee does not even mention the Washoe Medical Center decision. Therefore after its decision in Washoe 3

4 Medical Center and Fresno Bee, the Board seemingly applied a different standard to assessing discretionary aspects of discipline policies than to policies regulating other terms and conditions of employment during the period between the union s election and the reaching of a collective bargaining agreement. III. Alan Ritchey and Total Security Management A. Alan Ritchey, Inc. A new obligation for employers to bargain discipline prior to the execution of a collective bargaining agreement. The question before the Board in Alan Ritchey, Inc. was whether an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline on a unit employee. Alan Ritchey, Inc., 2012 NLRB LEXIS 854, *1 (2012). This question will normally only arise during the time period after a union has been selected as a bargaining representative and before the first collective bargaining agreement has been agreed upon. Id. In deciding an issue never adequately addressed in its broader doctrinal context under Section 8(a)(5) of the National Labor Relations Act, the Board answered the question before it in the affirmative, thereby imposing a new obligation on employers. Id. at *2. Alan Ritchey, Inc. involved a group of employees in Alan Ritchey s Richmond, California facility, which employed around 250 employees. Id. at *3. In April of 2000, a majority of employees voted in favor of Warehouse Union Local 6, International Longshore and Warehouse Union being their union representative. Id. at *3. After the election, but prior to the execution of a collective bargaining agreement, the company, pursuant to its established disciplinary system, disciplined a number of the newly unionized employees for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards. Id. at *5. Consistent with the company s progressive discipline system, the discipline imposed on the employees ranged from a formal warning to discharge. Id. Notably, the company did not bargain with the union prior to imposing discipline on these employees. Id. In response to the employer s decision to discipline the employees for violations of various policies, the union sent the company a notification that it was protesting the company s actions since it did not notify the union of the discipline and/or provide an opportunity to bargain prior to the discipline being imposed. Id. at *12. The union also filed an unfair labor practice charge alleging violations under Sections 8(a)(1), (3), and (5) of the Act. The administrative law judge determined that Alan Ritchey was obligated to bargain with the union prior to the 4

5 imposition of discipline. Id. at *5. In making this determination, the administrative law judge relied heavily on Washoe Medical Center, which found an employer s substantial degree of discretion in placing newly hired employees into quartiles within their positions wage ranges, based on subjective judgments, required the employer to bargain with the union before implementing the wage rates. Id. at *12 (citing Washoe Med. Ctr, Inc., 337 NLRB at 202). The judge found that Alan Ritchey exhibited a substantial degree of discretion when imposing the discipline policies at issue. Id. Finding that the discipline imposed by Alan Ritchey was discretionary by relying on the Board s decision in Washoe Medical Center, the judge determined that the company was required to bargain with the newly elected union prior to imposing the discipline on the employees. Id. at *12. The Board affirmed the administrative law judge s decision but limited its holding only to serious discipline. i. The Board s holding in Alan Ritchey, Inc. was limited to serious discipline. The Board qualified an employer s duty to bargain prior to the imposition of discretionary discipline based on the severity of the discipline imposed. Specifically, the Board limited its holding that an employer has a duty to bargain with the union prior to imposing discretionary discipline only to discretionary discipline that has a material, substantial, and significant impact on the employees terms and conditions of employment. Id. at *16 (citing Toledo Blade Co., 343 NLRB 385, 387 (2004). The Board cited discipline such as suspension, demotion, and discharge as discipline that has a material, substantial, and significant impact on the employees terms and conditions of employment and thus necessitates bargaining before the discipline is imposed. Id. at 16. The Board stated that requiring bargaining before these sanctions are imposed is appropriate... because of [the] impact on the employee and because of the harm caused to the union s effectiveness as the employees representative if bargaining is postponed. Id. In contrast, an employer does not have a duty to bargain with the union regarding lesser discipline, such as oral and written warnings, which do not have a material, substantial, and significant impact on terms and conditions of employment prior to imposing such discipline. Instead, the Board noted, the employer s duty to bargain regarding lesser discipline may properly be deferred until after they are imposed. Id. at 17. 5

6 ii. Employer s must bargain over discretionary discipline. In holding that an employer has a duty to bargain prior to the imposition of substantial, material and significant discretionary discipline, the Board relied on other decisions where, across a range of terms and conditions of employment, [it] has applied the principle that even regular and recurring changes by an employer constitute unilateral action when the employer maintains discretion in relation to the nature or extent of the changes. Id. at *20. The Board relied upon Oneita Knitting Mills, where it held that an employer violated section 8(a)(5) of the Act by unilaterally granting merit wage increases to represented employees, even though it had a past practice of granting such increases. Id. at *19 (citing Oneita Knitting Mills, 205 NLRB 500 (1973)). The Board in Oneita Knitting Mills stated that [a]n employer with a past history of a merit increase program neither may discontinue that program... nor may he any longer continue to unilaterally exercise his discretion with respect to such increases, once an exclusive bargaining agent is selected. N.L.R.B. v. Katz, 396 U.S. 736 (1962). What is required is a maintenance of preexisting practices, i.e., the general outline of the program, however the implementation of that program (to the extent that discretion has existed in determining the amounts or timing of the increases), becomes a matter as to which the bargaining agent is entitled to be consulted. Oneita Knitting Mills, 205 NLRB 500, 501, n. 1 (1973). The Board found that Oneita Knitting Mills stood for the proposition that that an employer must always bargain over the discretionary aspect of the change[s] [of terms and conditions of employment] in question. Alan Ritchey, Inc., 2012 NLRB LEXIS 854, at * The Board also cited its decision in Washoe Medical Center where it held that an employer had a duty to bargain before implementing new wage rates since the employer exercised a substantial degree of discretion in placing newly hired employees into quartiles within their positions wage ranges, based on subjective judgements. Id. at 20 (citing Washoe Med. Ctr, 337 NLRB at 202). The Board further cited to its decision in Adair Standish Corp., where it determined that an employer who made layoff decisions based on its own judgment and not on seniority was required to bargain with the union regarding the layoffs since the decision was discretionary. Id. at *21 (citing Adair Standish Corp. 292 NLRB 890 fn. 1 (1989)). These decisions (as well as other Board decisions and cases cited in the decision 1 ), the Board 1 See Eugene Iovine, 328 NLRB 294 (1999) (holding unilateral reductions hours were discretionary and thus required bargaining); Garment Workers Local 512 v. NLRB, 795 F.2d 705, 711 (9th Cir. 1986) (holding 6

7 contended, support the contention that cases involving discretionary discipline that has a material, substantial, and significant impact on terms and conditions of employment should be treated similarly as cases involving discretionary layoffs, wage changes, and other changes in core terms or conditions of employment, where bargaining is required before an employer s decision is implemented. Id. at 23. iii. The Board overruled Fresno Bee While relying on analogous Board decisions that appeared to support its conclusion that employers have a duty to bargain prior to the imposition of discretionary discipline, the Board s decision in Alan Ritchey, Inc. was in direct contrast with its 2002 decision in Fresno Bee. In Fresno Bee, the Board was presented with the same question that it addressed in Alan Ritchey, Inc., however, it came to the opposite conclusion as detailed above. Fresno Bee, 337 NLRB 1161, 1186 (2002). In Alan Ritchey, Inc., the Board explicitly stated that it was declining to follow its previous decision in Fresno Bee and overruled the decision to the extent it contradicted its opinion in Alan Ritchey, Inc. Alan Ritchey, Inc., 2012 NLRB LEXIS 854 at *26-*27. Furthermore, the Board called the conclusion in Fresno Bee a non sequitur, and criticized the underlying reasoning for the decision in Fresno Bee, stating that Fresno Bee misunderstood the Board s case law and failed to explain why discipline should be treated as fundamentally different from other employer unilateral changes in terms and conditions of employment. Id. at *27-*28. The Board pointed to its prior decisions like Oneita Knitting and Washoe Medical Center stating the lesson of well-established Board precedent is that the employer has both a duty to maintain an existing policy governing terms and conditions of employment and a duty to bargain over discretionary applications of the policy. Id. at *28. This precedent lead the Board to overrule its decision in Fresno Bee and conclude that employers have a duty to bargain before imposing substantial, material and significant discretionary discipline. Id. at *26-*27. economic layoffs were discretionary and required bargaining); Hoffman Plastic Compounds, 535 U.S. 137 (2002) (holding wage increases were discretionary and union could demand bargaining). 7

8 iv. NLRB v. J. Weingarten, Inc. does not preclude the Board s newly imposed bargaining obligation The Board rejected the argument asserted by amicus that the Supreme Court s holding in NLRB v. J. Weingarten, Inc. precluded the Board from imposing its new pre-imposition discipline bargaining obligation. In Weingarten, the Supreme Court found that an employee has a right to union representation in investigatory interviews where the employee reasonably believes that he or she will be subject to discipline. NLRB v. J. Weingarten, Inc., 420 U.S. 251, (1975). The Supreme Court, however, qualified this holding, stating that an employer's refusal to bargain with a union in an investigatory meeting that may lead to discipline does not violate Section 8(a)(1).... Alan Ritchey, Inc., 2012 NLRB LEXIS 854, at *32 (citing Weingarten, 420 U.S. at ). The amicus argued that this qualification prevented the Board from imposing its new pre-imposition discipline bargaining obligation. The Board rejected this argument on two grounds. First, the Board emphasized that the holding in Weingarten only applied to the investigatory process, and not the discipline process. Id. at *30 ( [A]n investigation by itself is not, and may not result in, a change in employees terms and conditions of employment and thus does not constitute discipline or trigger a bargaining obligation. ). Second, the Board highlighted that Weingarten stood for the proposition that an employee does not violate Section 8(a)(1) by refusing to bargain during an investigation but expressed no view concerning whether the employer s unilateral decision to discipline an employee violates Section 8(a)(5). Id. at *33. Therefore, the Board concluded that its decision in Alan Ritchey, Inc. and the Supreme Court s decision in Weingarten could be read harmoniously. v. The Board dismissed the burdens imposed by its decision. Alan Ritchey, Inc. also addressed some of the burdens that this newfound obligation to bargain before imposing discretionary discipline, but concluded that these burdens are not unreasonable or intolerable. The Board stated with regard to possible delay that a bargaining obligation may cause in implementing discipline, we do not perceive that our decision today will unduly burden employers in that regard. Id. at *35. It first reiterated that the opinion only applies to discretionary discipline that has a substantial impact on an employee s terms and conditions of employment. Id. The Board noted that the most common types of discipline, such as most warnings, corrective actions, counselings, and the like will not require preimposition bargaining since this discipline does not have a substantial impact on terms and conditions of 8

9 employment. Id. at *36. Second, the Board stated, that this new obligation will not be unduly burdensome because the employer is not required to bargain to agreement or impasse... rather, if the parties have not reached agreement, the duty to bargain continues after imposition. Id. at 37. Third, the Board carved out an exception to this new obligation on employers stating, that in exigent circumstances, 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, an employer does not have to provide notice of discipline to the union before it imposes such discipline. Id. The Board did not further define what constitutes an exigent circumstance and noted that the scope of such exigent circumstances is best defined going forward on a case-by-case basis. Id. Finally, the Board stated its decision will not create an undue burden on employers because it does not require an employer to await an overall impasse in bargaining before imposing discipline, so long as it exercises its discretion within existing standards. Id. at 39. The Board explained its holdings and this new obligation on employers by way of example involving an employer s absenteeism policy. The opinion provides that [I]n a workplace where the employer has an established practice of disciplining employees for absenteeism, the decision to impose discipline for such conduct will not give rise to an obligation to bargain over whether absenteeism is generally an appropriate grounds for discipline. Instead, bargaining will be limited to the specific case at hand: e.g., whether the employee actually was absent and merited discipline under the established practice. Similarly, if the employer consistently suspends employees for absenteeism, but the length of the suspension is discretionary, bargaining will be limited to that issue. Id. at *42-*43. The Board asserted that this narrow holding will not prevent or impede and employer to effectively discipline and manage its employees. Id. at *43. B. National Labor Relations Board v. Noel Canning The Supreme Court invalidates the Alan Ritchey, Inc. decision. This new obligation imposed by the Board on employers was short lived. It was vacated in accordance with the United States Supreme Court s decision in National Labor Relations Board v. Noel Canning. 134 S.Ct. 2550, 2578 (2014). In June 2014, the Court in Noel Canning analyzed the scope of the President s authority to appoint individuals using the Recess Appointment Clause of the United States Constitution. The Court unanimously agreed with Noel Canning and found that the President did not have the authority to make three recess 9

10 appointments to the NLRB. Id. at The Court s decision invalidated approximately 700 Board decisions made between January of 2012 and August of 2013, including Alan Ritchey, Inc. C. Total Security Management The Board reestablishes its Alan Ritchey, Inc. decision. In August of 2016 in Total Security Management, the Board revisited the same issue it originally addressed in the then-invalidated Alan Ritchey, Inc. decision whether an employer has a duty to bargain before disciplining individual employees, when the employer does not alter broad, preexisting standards of conduct but exercises discretion over whether and how to discipline individuals. 2 Total Security Management, 364 NLRB No. 106, *1 (2016). The Board in Total Security Management reached the same conclusion that it did in Alan Ritchey, Inc., and again found that employers have an obligation to bargain with a union before imposing discretionary discipline during the period between the union s election and reaching a first contract. Id. The opinion in Total Security Management is essentially the same opinion as Alan Ritchey, Inc., so an in-depth discussion of the Board s analysis and holding is not required. However, the Total Security Management opinion differs from the Board s decision in Alan Ritchey, Inc. in two respects. i. Remedies Available for Failure to Bargain First, the decision in Total Security Management addresses its application to future cases, specifically regarding remedial measures available to employees in the event of a violation of this newfound obligation on employers, which the Alan Ritchey, Inc. decision did not. In its decision, the Board, in the interest of administrative efficiency, [] provide[d] guidance to Board personnel and labor practitioners, who will apply this decision in the in the first instance in the 2 Total Security Management argued that the Regional Director and the Acting General Counsel for the NLRB were invalidly appointed under the Federal Vacancies Reform Act (FVRA), 5 U.S.C et seq., and thus did not have authority to issue the complaints for the cases during the time they were invalidly appointed. Total Security Management, 364 NLRB No. 106, *1, n. 5 (2016). Total Security Management argued that this lack of authority warranted the dismissal of the complaints in its case. Id. The Board rejected this argument. Id. However, the argument advanced by Total Security Management regarding the validity of the appointment of the Regional Director and the Acting General Counsel is still an unresolved issue and is currently before the United States Supreme Court. NLRB v. SW General, Inc., 136 S.Ct (2016) (order granting writ of certiorari). If the Supreme Court determines that the Regional Director and the Acting General Counsel were invalidly appointed, the Board s Total Security Management decision could be invalidated. 10

11 forthcoming cases, about the appropriate remedies for unfair labor practices arising under [the Total Security Management] decision. Id. at *12. The Board found that the appropriate remedies for failing to provide notice to the union and an opportunity to bargain before it imposes discretionary discipline... is the Board s standard remedies for an unlawful unilateral change. Id. These standard remedies include make-whole relief such as reinstatement and back-pay as opposed to injunctive-type relief. Id. (citing Goya Foods of Florida, 356 NLRB 1461, 1462 (2011) ( the Board s standard remedy in Section 8(a)(5) cases involving unilateral changes resulting in losses to employees is to make whole any employee affected by the change )). The employer must also rescind its unlawful unilateral change. Id. (citing Goya Foods, 356 NLRB at 1462 (holding that the standard remedy for unlawful unilateral changes is immediate rescission of changes and return to status quo ante )). The Board also addressed the remedies available when an employer does not provide the union with notice or an opportunity to bargain prior to imposing the discipline but complies with its obligation to bargain to agreement or impasse after the discipline is imposed. Id. In this situation, the bargaining unit member is entitled to backpay, running from the date of the unilateral discipline until the date on which the parties reached agreement or impasse regarding the discipline. Id. The employer s compliance with post-discipline bargaining obligations does not moot or cure the pre-discipline bargaining violation. Id. However, the Board noted that an employer may raise an affirmative defense that the discipline at issue was for cause and that back pay or reinstatement should not be awarded if the employer shows (1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge. Id. at *15. ii. Member Miscimarra s Dissent in Total Security Management The decision in Total Security Management included a vigorous 25-page dissent by Member Miscimarra 3. The dissent criticizes the majority s decision for create[ing] entirely new requirements and restrictions regarding discipline. Total Security Management, 364 NLRB at *17. He further criticized the reasoning relied on by the majority, stating [t]here is no legal support for these requirements, with the sole exception of one short-lived decision, Alan Ritchey, Inc., 359 NLRB 396 (2012), which set forth, nearly verbatim, the same rationale my colleagues 3 On January 23, 2017, President Trump named Member Miscimarra the Acting Chairman of the National Labor Relations Board. See 11

12 rely on [in Total Security Management]. Id. While Member Miscimarra takes issue with much of the majority s reasoning, his dissent attacks the majority s decision on essentially three grounds. He first argues that the majority s decision impermissibly creates a discipline bar, which he defines as a Board-imposed moratorium on discipline whenever employees are represented by a union. Second, Member Miscimarra argues that the majority s decision cannot be reconciled with existing and well-established labor law principles. Lastly, his dissent addresses the specific problems that arise with the Board s new imposition of the discipline bar. a. The majority s decision imposes a discipline bar for employers Member Miscimarra begins his dissenting opinion by attacking the majority s creation of what he refers to as a discipline bar. His dissent argues that this discipline bar effectively prevents an employer from lawfully disciplining employees based on preexisting disciplinary standards and procedures, even if the employer makes no changes in those standards and procedures, even if the employer has always imposed the same discipline in similar circumstances, and even if the employer does not discriminate on the basis of union membership or other protected activity when it imposes discipline. Id. at 18. The dissent argues that this discipline bar requires employers to engage in discipline bargaining, which requires the employer to suspend or defer discipline decisions until the employer has provided notice to the union and an opportunity for bargaining. Id. This discipline bargaining, Member Miscimarra argues, unnecessarily complicates the discipline process by creating an array of complex exceptions and qualifications, which will make employer compliance with the Act almost impossible. Id. He argues employers will be required to meticulously evaluate all aspects of every disciplinary decision. Id. The dissent argues discipline bargaining will result in disputes regarding employer s obligations regarding discipline, unnecessarily requiring intervention by the Board and the courts. Id. b. The majority s decision conflicts with existing labor law principles. Member Miscimarra s dissent next attacks the majority s decision by accusing it of run[ning] roughshod over existing legal principles involving many of the most fundamental principles embodied in the Act. Id. His dissent begins by listing ten different ways that the majority s opinion conflicts with existing labor law principles. While too numerous to discuss indepth, a select few are discussed here. First, his dissent states that the majority s opinion contradicts the principle that discipline is lawful if the discipline is consistent with what the 12

13 employer had done in the past and when the discipline is non-discriminatory, having nothing to do with the disciplined employee s union support or other protected activities. Id. at 19. Member Miscimarra believes that the majority s decision invalidates nondiscriminatory discipline decisions unless the employer satisfies the majority s newly created requirements. Id. at 18. Second, the dissent argues that the majority s opinion creates a one-sided obligation on the employer by making a heads-i-win, tails-you-lose obligation, where employers violate the Act if they fail to honor the discipline bar a moratorium on discipline or fail to engage in preimposition discipline bargaining. However, employers also violate the Act if they deviate from any preexisting disciplinary rules and procedures. Id. at 19. Finally, the dissent notes that the majority s decision will have unintended consequences by creating bargaining obligations where there were none before. The dissent argues that the majority s opinion imposes discipline bargaining requirements on employers at all times when the employer and union do not have an agreement governing discipline in place, not merely while initial contract negotiations remain incomplete. Id. at 19. After its enumeration of the ways the majority s decision violates existing labor law principles under the Act, the dissent provides additional considerations it finds troubling regarding these new discipline-bar and discipline-bargaining requirements. Id. at 20. The dissent first takes issue with the harm imposed by the majority s decision. Id. When changing existing law, the dissent believes that the Board should take a do no harm approach to avoid doing violence to undisputed, decades-old principles that are clear, widely understood, and easy to apply. Id. The majority s decision, the dissent argues, violates this approach by preclud[ing] the continued application of unchanged disciplinary standards, when the union may not have requested bargaining, and when bargaining may not have commenced regarding any subject. Id. The dissent also argues that the majority created concepts and definitions in its opinion that it failed to explain, such as the distinction between more serious and less serious discipline, the distinction between discretionary and non-discretionary discipline, and the definition of an exigent circumstance. Id. at The dissent argues that the majority s failure to adequately explain these concepts and definitions will make it difficult for everybody [seeking] to comply with the new obligations. Id. at The dissent also takes issue with the majority s decision because it will prevent or delay discipline of represented employees by requiring employers to engage with the union in making routine disciplinary decisions. Id. at

14 c. The specific problems with the discipline-bar and discipline-bargaining requirements The final portion of Member Miscimarra s dissent is dedicated to addressing the specific problems that result from the majority s creation of a discipline-bar and discipline-bargaining requirements. The first problem that the dissent addresses is that the majority opinion creates an obligation for employers to bargain over discipline even when there is no change to the employer s discipline standards and procedures. Id. at 25. His dissent acknowledges that an employer or union violates the Act by making a unilateral change in a mandatory bargaining subject, such as discipline. Id. at 25. His dissent therefore argues that the converse should be true, specifically, that an employer does not violate the Act by taking actions consistent with what has occurred in the past, so therefore, to the extent an employer imposes discipline using the same disciplinary standards and procedures that have existed in the past, this maintains the status quo and is not a change that requires bargaining. Id. at 26. Member Miscimarra argues that the majority s opinion violates this basic principle by making it unlawful for the employer to take disciplinary action consistent with what it has done in the past, even though there has been no change. Id. (emphasis in original). Member Miscimarra s dissent further states that the majority s opinion is inconsistent with the Supreme Court s decision in NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975). Member Miscimarra asserted that the Supreme Court s decision in Weingarten stood for the following: That (i) the union s involvement is limited to attendance at a pre-disciplinary investigative meeting with the employee, which the employer has the right to cancel without explanation; (ii) the employer has no duty to bargain with the union representative who attends any such meeting, and (iii) the employer is otherwise... free to impose discipline. Total Security Management, 364 NLRB at 29. His dissent argues that since the duty to bargain does not arise prior to the employer s decision to impose discipline during the investigation process, it follows that there [is] no bargaining duty regarding the discipline s implementation. Id. at 30. In addition to being inconsistent with the Supreme Court s decision in Weingarten, the dissent argues that the majority s decision is inconsistent with rules regarding the clear and unmistakable waiver doctrine. Id. at 32. When evaluating whether contract provisions obviate the statutory duty to bargain imposed by Section 8(a)(5), the Board applies a demanding clear 14

15 and unmistakable waiver standard. Id. at 32. Waiver of Section 8(a)(5) requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply. Id. at 32. Member Miscimarra argues that the majority s opinion is inconsistent with clear and unmistakable waiver because the majority provides that an employer and union can enter into a safe harbor interim agreement providing for a process, such as a grievance-arbitration system to resolve disputes regarding discipline before a collective bargaining agreement is signed. Id. His dissent argues that this safe harbor does not amount to a clear and unmistakable waiver of employees Section 8(a)(5) rights, evidencing another fundamental inconsistency between the majority s discipline-bar and... settled law. Id. Finally, the dissent argues that the Board s decision violates Section 10(c) of the Act which states that [n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause. Id. at 33. Member Miscimarra argues the majority s opinion directly violates this prohibition in Section 10(c), stating my colleagues impose the new discipline bar... requirements on employers, even when cause exists for an employee s suspension or discharge. Id. at 33. IV. Subsequent Application of Total Security Management Since the Board s August 26, 2016 decision in Total Security Management, the decision has only been cited three times. 4 However, none of these decisions offer any further substantive analysis of the Board s decision. Therefore, employers are left only with the Total Security Management decision as guide on how to properly discipline employees during the time between a union election and the execution of a collective bargaining agreement. Until the Board offers employers further guidance on how to comply with the new obligations imposed by its Total Security Management decision, the uncertainties addressed by Member Miscimarra s dissent will continue to exist. 4 Dish Network Corp. & Commc'n Workers of Am., Afl-Cio, 2017 WL (Jan. 23, 2017); Lifeway Foods, Inc. & Bakery, Confectionary, Tobacco Workers & Grain Millers Int'l Union, AFL-CIO, Local Union No. 1, 364 NLRB No. 145 (Nov. 9, 2016); Paragon Sys., Inc. & United Gov't Sec. Officers of Am., Local 236, 364 NLRB No. 134 (Oct. 31, 2016). 15

16 Despite no substantive case law examining or applying Total Security Management, the Office of the General Counsel, Division of Operations-Management, recently issued a memorandum on February 14, 2017, to Regional Directors, Officers-in-Charge, and Resident Officers entitled, Case Processing Guidelines for Cases Arising under Total Security Management, 364 NLRB No. 106 (Aug. 26, 2016). In the memorandum, the Office of the General Counsel described the Board s holding, and discussed the necessity of litigating the compliance issue during the underlying unfair labor practice proceeding. OM at 2. As stated in the memorandum, Regions should consolidated the compliance proceeding with the underlying unfair labor practice proceeding, and issue a consolidated complaint and compliance specification proceeding in these cases. Id. The memorandum further outlines three basic actions required by regional offices in investigating and disposing of cases arising under Total Security Management. First, Regions should conduct a complete investigation to determine whether evidence supports a violation of the Act. Id. The investigation should include evidence from the discriminatee and charged party regarding backpay information so as to establish potential monetary liability, and any for cause evidence the charged party may want to present. Id. Second, where the Region has determined that there was an unlawful failure to bargain but the charged party has arguably met its burden of showing that the discipline was for cause, the Region should submit a brief memorandum setting forth these facts of the case and a recommended course of action to the Division of Advice. Id. However, if the Region determines that the charged party did not meet its burden of showing that the discipline was for cause, the Region does not have to contact the Division of Advice. Id. Third, [u]pon determination that the charged party committed a Total Security violation, absent settlement, Regions should consolidate the compliance proceeding with the underlying unfair labor practice proceeding, and issue a consolidated complaint and compliance specification. Id. V. Conclusion The new obligations on employers imposed by Total Security Management leave employers with many more questions than answers. Total Security Management offers employers little guidance regarding compliance with this new obligation. For example, the Board s decision only applies to discretionary discipline. The Board, however, provides employers virtually no guidance regarding the distinction between discretionary and non- 16

17 discretionary discipline. Similarly, the duty to bargain with the union prior to imposing discretionary discipline only applies to serious discipline. The Board, however, gives little explanation regarding the distinction between serious and less-serious discipline. These issues, as well as many others, will likely be presented to the Board to resolve going forward since the uncertainty surrounding these issues will lead to disputes between employers and unions regarding the interpretation of the Board s decision. But given the possible shift to a more employer-friendly Board under President Trump, these uncertainties may be decided in the employer s favor in an effort to minimize the effects of Total Security Management. 17