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1000.02029 – Disciplinary Action

In Contra Costa Community College District (2019) PERB Decision No. 2652, the Board cited Total Security Management (2016) 364 NLRB 1532 (Total Security) with approval. In Total Security, the NLRB held that an employer has a duty to bargain with a union before unilaterally disciplining an employee, where the employer is imposing the discipline based on an exercise of discretion rather than pursuant to preexisting standards of conduct. (Total Security, supra, 364 NLRB at p. 1532.) Such an issue, the NLRB explained, typically arises after a union is first certified or recognized, but before a contract is in place. (Ibid.) The NLRB concluded that an employer must provide its employees’ bargaining representative notice and the opportunity to bargain before exercising its discretion to impose serious discipline on individual employees, absent an agreement with the union providing for a process, such as a grievance-arbitration system, to address such disputes. (Ibid.) The Board, however, declined to consider whether Total Security might apply in a successorship context where the record did not demonstrate whether the acquired clinics had any existing disciplinary policies or practices before two employees were terminated, and, if so, what they were. (pp. 53-54.)