Employers Have No Duty to Bargain Over Discipline with Union Prior to First CBA

The National Labor Relations Board (NLRB) reversed a 2016 decision that required employers to bargain with a newly-certified union prior to imposing “serious discipline” before the employer and union reached an initial collective-bargaining agreement (CBA).

Background: That 2016 case, Total Security Management, required employers to provide a union with notice and an opportunity to bargain over discretionary elements of an existing disciplinary policy before imposing serious discipline, including demotion, suspension, and discharge. This obligation arose where the employer and union had not yet reached an initial CBA. Failure to provide such notice and an opportunity to bargain violated Section 8(a)(5) of the National Labor Relations Act (NLRA). Under Total Security Management, the employer would violate the NLRA even where it did not change a pre-existing disciplinary policy or practice, but merely continued to exercise discretion in imposing discipline.

Facts: In 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the union won an election in 2012. For years, the employer challenged the union’s certification and refused to bargain. During that time, the employer suspended three employees and discharged a fourth, pursuant to a discretionary disciplinary policy. Ultimately, the courts upheld the union’s certification. The union filed charges alleging that, under Total Security Management, the employer unlawfully failed to provide the union with notice and an opportunity to bargain over the discipline. Applying Total Security Management, an administrative law judge held that the employee discipline – which occurred prior to the parties reaching an initial CBA – violated Section 8(a)(5) of the NLRA.

Decision: In Care One, the Board reversed Total Security Management. In doing so, the Board reinstated pre-2016 precedent that did not impose a pre-discipline bargaining obligation where employers sought to discipline unionized employees not yet covered by an initial CBA. Thus, even where an employer exercises discretion in the imposition of discipline, the employer does not have an obligation to notify and bargain with the union prior to issuing the discipline. In this case, the Board shifted away from analyzing whether the discipline involved managerial discretion, acknowledging that most disciplinary decisions involve some degree of managerial discretion. Instead, the Board focused on the fact that the employer had applied its established disciplinary policy and had not materially changed employees’ working conditions in issuing the discipline. Accordingly, the Board found that the employer did not violate the NLRA.

Employer Takeaway: This decision returns to employers the ability to impose discipline on newly unionized employees not yet subject to a CBA without first notifying and bargaining with the union. This includes discipline that may involve managerial discretion. The discipline, though, should be consistent with disciplinary policy and practices that existed prior to the employees choosing union representation.