NLRB Finds That Employers Do Not Have a Duty to Bargain Over Employee Discipline Before Entering Into a Collective Bargaining Agreement

Harriet E. Cooperman and Erik P. Pramschufer
Published June 29, 2020

On June 23, 2020, the National Labor Relations Board (NLRB) upheld an employer's right to unilaterally discipline employees without any obligation to bargain about the decision with a newly-elected union if the parties have not yet entered into a collective bargaining agreement ("CBA"). 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020) (Care One). This decision restores an 80-year precedent that had existed from the inception of the National Labor Relations Act (NLRA) until a 2016 Obama Board ruling altered the framework. In reinstating the prior rule, the NLRB expressly overruled the 2016 Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016) (Total Security) decision.

The Total Security decision held that an employer violates the NLRA if, prior to reaching a CBA, it imposes serious discretionary disciplinary action on an employee without providing the union an opportunity to bargain about the decision even if the employer followed its own preexisting disciplinary practice. Total Security carved out a narrow exception if the employer could demonstrate that the disciplined employee presented a serious imminent danger to the employer’s business or personnel.

The Total Security standard was undoubtedly union-friendly and often left employers scrambling to establish "interim grievance procedures" while also negotiating the initial CBA. Under the Total Security rule, employees who were disciplined without their union representative first being provided an opportunity to bargain about the discipline decision would be entitled to recover back pay for time spent out of work.

The NLRB's recent decision in Care One found the Total Security holding both unworkable and out of line with U.S. Supreme Court precedent. While a CBA is being negotiated and formalized, employers have an obligation under the NLRA to maintain the status quo. The Care One decision clarifies that even where employers naturally exercise discretion in disciplining employees, they do not upset the status quo so long as their action "is similar in kind and degree to what the employer did in the past within the structure of established policy or practice." The decision warns that if an employer imposes disciplinary action that is inconsistent with its established practice during the time it is negotiating a first CBA with the union, it will be found to have violated the NLRA.

The NLRB's return to its past precedent is welcome news to employers who have been grappling with the Total Security rule for the past four years. If you have any questions about how the Care One decision impacts your business, please contact your normal Saul Ewing Arnstein & Lehr attorney.