NLRB’s Division of Advice finds employer satisfied bargaining obligations
In a memo released June 22, the NLRB’s Division of Advice has recommended dismissing a complaint against an employer over an alleged refusal to engage in pre- and post-disciplinary bargaining. The Division found that the employer, an auto dealership, did not have an obligation under the CBA to engage in pre-disciplinary bargaining.
Following the certification of the union as the bargaining representative of the employer’s full- and part-time technicians, the parties began negotiating a first-ever CBA. Although the union demanded that the employer not change the terms and conditions of the employees’ working conditions during bargaining, the employer continued to enforce the progressive discipline policy it had in place prior to the union’s certification and did not give the union the opportunity to bargain over discipline. The employer did, however, engage in post-disciplinary bargaining.
The Division found that the employer did not violate the Act. During CBA negotiations, employers do not have a duty to bargain over discipline issued within the parameters of a preexisting policy. Thus, the employer was allowed to continue using its old disciplinary policy while negotiating a new CBA. Moreover, the evidence indicated that the employer agreed to post-disciplinary bargaining whenever the union asked for it.