NLRB Reinstates Decades-Long Precedent Allowing Employers To Discipline Newly Organized Employees Before A First Contract

Published date03 July 2020
Subject MatterEmployment and HR, Contract of Employment, Employee Rights/ Labour Relations
Law FirmSeyfarth Shaw LLP
AuthorMs Jennifer Mora

Seyfarth Synopsis: On June 23, 2020, the National Labor Relations Board reversed precedent and held in Care One at New Milford, 369 NLRB No. 109 (2020), that during negotiations for a first collective bargaining agreement, employers do not have a duty to bargain with a union over discipline for newly organized employees if the discipline is issued consistent with established disciplinary policies or practices. The decision is retroactive to any case currently pending before the NLRB.

For almost 80 years, the National Labor Relations Board had in place a longstanding rule that employers had no obligation to give a union notice of or an opportunity to bargain over discipline before reaching agreement with a newly elected union on a first contract. That all changed, however, when the NLRB held in Total Security Management Illinois 1, LLC, 362 NLRB No. 106 (2016), that an employer, with limited exceptions, was required to provide a union with notice and an opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing serious discipline on any newly represented employees while bargaining for a first contract. Notably, the NLRB had reached a similar conclusion in Alan Ritchey, Inc., 359 NLRB 396 (2012). That decision, however, was invalidated by the U.S. Supreme Court's holding in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), because the Board's composition at the time of Alan Ritchey included two individuals whose appointments violated the United States Constitution.

As is often the case with the NLRB, the pendulum has swung back, with the current NLRB blasting the Total Security decision for going to great lengths to "devise a contorted bargaining scheme at odds with traditional bargaining practices" and having "shredded longstanding principles governing the duty to bargain." On June 23, 2020, the NLRB overturned Total Security and held in Care One at New Milford, 369 NLRB No. 109 (2020), that employers have no duty to bargain over serious employee discipline imposed before the negotiation of a collective bargaining agreement so long as the employer acts consistent with a pre-existing disciplinary policy.

According to the Board, Total Security had conflicted with prior Board precedent and the Supreme Court's statements in NLRB v. Weingarten, 420...

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