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NLRB Overrules 2016 Precedent, Eliminates Pre-Contract Obligation to Bargain Over Discipline

As Long As The Discipline A Newly-Unionized Employer Imposes Prior To Negotiation Of A First CBA Is Consistent With What It’s Done In The Past, The Employer Has No Obligation To Give The Union Notice & An Opportunity To Bargain About The Discipline

Published Thursday, June 25, 2020
by The National Law Review
NLRB Overrules 2016 Precedent, Eliminates Pre-Contract Obligation to Bargain Over Discipline

(WASHINGTON, D.C.) - Reversing a four-year-old decision on the standard for Employee Discipline in advance of a first contract that many employers found onerous, the National Labor Relations Board (NLRB) has overruled Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020) (Care One).

The 2016 decision held that where Employees are newly represented by a Union, but a first Collective Bargaining Agreement (CBA) had yet to be negotiated, an employer was obligated to collectively bargain with the Union regarding discre­tionary “serious discipline” (such as suspension, demotion or discharge) it intended to impose.

In Care One, the NLRB held that an employer does not have an obligation to bargain over discipline (even where the employer exercises discretion in imparting it) if it is given in accordance with an established disciplinary policy or practice.

The unanimous decision will be applied retroactively to all cases pending before the NLRB.

Under Total Security, an employer’s failure to bargain about serious discipline violated the National Labor Relations Act (NLRA) if the employer exercised any discretion (even where that exercise was consistent with an existing Disciplinary Policy or practice) when determining whether and how to discipline an Employee. 

Total Security allowed a limited exception where the disciplined Employee’s “continued presence on the job presents a serious, imminent danger to the employer’s business or personnel,” with a significant burden of proof on the employer.

Total Security was founded on the concept that when discretion was exercised in the imposition of serious discipline, a material change had occurred in an Employee’s terms and conditions of employment, and thus, bargaining was required before making the change.

The decision caused some employers (pursuant to a suggestion in the decision) to attempt to negotiate an interim Grievance Procedure (while bargaining about the overall contract) that gave them the opportunity to lawfully impose discipline without first bargaining with the Union, and provided the Union a means for challenging that discipline.

However, as the NLRB noted in Care One, this Total Security “safe harbor” was “illusory.”

The Union would have to consent to bargaining over such an interim agreement, and “it is difficult to understand why a Union intent on maximizing its advantage in collective bargaining would ever consent to negotiate an interim disciplinary agreement.”

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