NLRB Erases Employer’s Obligation to Bargain Over Discretionary Discipline with a Newly Certified Union

On June 23, 2020, the National Labor Relations Board (the Board) made a major change to the obligation that employers bargain with a union about discipline after a union wins a representation election, but before a collective bargaining agreement has been finalized. In doing so the Board overruled a 2016 decision that had imposed a duty to bargain over discipline with a newly certified union prior to reaching a first collective-bargaining agreement.

In its decision in 800 River Road Operating Company, LLC d/b/a Care One at New Milford the Board reinstated 80 years of precedent which held that employers have no statutory obligation to bargain before imposing discretionary discipline that is consistent with the employer’s established policy or practice.

The Board’s decision overturns a 2016 case called Total Security Management Illinois 1, LLC, which imposed a new obligation on employers when beginning a collective-bargaining relationship. Total Security Management 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,” such as suspension, demotion or discharge.

The 800 River Road decision explains how the pre-discipline bargaining obligation created in 2016 conflicted with prior Supreme Court and Board precedent, misconstrued the Supreme Court’s unilateral-change doctrine with respect to what constitutes a material change in working conditions, and imposed a complicated and burdensome bargaining scheme that could not be reconciled with the general body of law governing statutory bargaining practices.

Takeaways for Companies

The Board’s decision is extremely important for employers in the midst of negotiating an initial contract with a newly certified union. Employers are now able to discipline employees without bargaining, if that discipline is materially consistent with the employer’s established policy or practice.

Companies who are in the process of bargaining an initial collective bargaining agreement and have questions about this decision, should consult Daniel Sobol, Joseph Hofmann, Brandon Shemtob or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.