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NLRB Reverses Precedent, Rules Employers Can Discipline Employees Before Bargaining With New Union

Yesterday, the National Labor Relations Board reversed course and held that employers may discipline employees represented by a newly elected union before a collective bargaining agreement is negotiated, and without having to give the union notice and an opportunity to bargain over the discipline.

800 River Road Operating Company, LLC d/b/a Care One at New Milford and 1199 SEIU, United Healthcare Workers East, Case 22–CA–204545 (June 23, 2020).

The primary question presented in the case was whether to adhere to the holding of Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016) (Total Security) and, accordingly, to affirm the judge’s finding that the Respondent violated Sections 8(a)(5) and (1) of the National Labor Relations Act by disciplining four employees without first providing the Union with notice and an opportunity to bargain.

In Total Security, a Board majority, with then-Member Miscimarra dissenting, purported to clarify existing law by imposing a new statutory obligation on employers upon commencement of a collective bargaining relationship. The decision required an employer, with limited exceptions, to provide a union with notice and opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing serious discipline on any individual union-represented employees who are not yet covered by a collective bargaining agreement. An employer’s failure to engage in such bargaining would violate Section 8(a)(5) of the Act even when the employer did not alter a preexisting disciplinary policy or practice but, instead, merely continued to exercise discretion consistent with that policy or practice when determining whether and how to discipline individuals. Further, the customary remedy for this violation would include reinstatement and back pay for a disciplined employee, unless the employer could prove that the discipline was imposed “for cause” within the meaning of Section 10(c) of the Act.

The Board overruled Total Security and reinstated the law as it existed for 80 years, from the Act’s inception until issuance of that decision. During that time, the Board did not recognize a pre-disciplinary bargaining obligation under the Act. In fact, in Fresno Bee, 337 NLRB 1161 (2002), the Board affirmed an administrative law judge’s rejection of the General Counsel’s theory that such an obligation existed. Dismissively overruling that controlling precedent as “demonstrably incorrect,” the Total Security majority claimed that the pre-discipline bargaining obligation was allegedly consistent with general Board precedent governing an employer’s bargaining obligations prior to making material changes in bargaining-unit employees’ terms and conditions of employment.

According to the Board, Total Security’s imposition of a pre-discipline bargaining obligation “(1) conflicts with a specific Board precedent and the rationale of the Supreme Court’s Weingarten decision relevant to this issue; (2) misconstrues the general unilateral-change doctrine announced in the Court’s Katz decision with respect to what constitutes a material change in working conditions; and (3) imposes a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practices.” For these reasons, the Board held that Total Security must be overruled.

The Board further found that it is appropriate to apply its decision retroactively “to all pending cases in whatever stage,” including in the instant case. Applying the new appropriate standard, the Board concluded that “the Respondent did not have a duty to provide the Union with notice and an opportunity to bargain prior to suspending three employees and discharging a fourth.” As a result, the Board dismissed the complaint allegation that those disciplinary actions were unlawful.

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