How Can An Employer Lawfully Implement A Discipline-based Attendance Policy In A Unionized Workplace Under A Collective Bargaining Agreement That Contains A Just Cause Provision, Without Running Afoul Of The National Labor Relations Act's Prohibition On Unilateral Changes To Mandatory Subjects Of Bargaining, In Light Of Recent NLRB And Arbitral Decisions In The US And Canada?

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To lawfully implement a discipline-based attendance policy in a unionized workplace under a CBA with a just cause provision, the employer must follow a structured approach to avoid violating the NLRA and respect the collective bargaining process. Here's a concise and organized summary of the key steps:

  1. Review the Existing CBA: Examine the CBA to determine if the attendance policy is already addressed or if there's a management rights clause that permits such policies without further bargaining.

  2. Negotiate with the Union: If the CBA doesn't cover the policy, engage in good-faith negotiations with the union. Propose the attendance policy as a mandatory subject of bargaining to reach a mutually acceptable agreement.

  3. Consider CBA Interpretation: If the CBA allows for interpreting existing terms, the employer might argue the policy is an interpretation rather than a unilateral change, though this approach carries risks and should be approached cautiously.

  4. Ensure Compliance with Just Cause Standards: Align the policy with just cause principles, ensuring discipline is for substantial reasons related to job fitness. Consistency and fairness in application are crucial.

  5. Transparent Communication: Clearly communicate the policy to employees, outlining expectations and consequences to ensure understanding and compliance.

  6. Prepare for Disputes: Maintain thorough documentation for each disciplinary action. Be ready to defend the policy through the CBA's grievance procedure, demonstrating consistency and just cause.

  7. Stay Informed on Legal Developments: Keep abreast of recent NLRB decisions and arbitral rulings in both the US and Canada, as they may impact the legality of policy implementation.

By following these steps, the employer can implement the attendance policy in compliance with legal standards while maintaining a positive labor relations environment.