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NLRB Allows Employers to Discipline New Union Members

June 24, 2020

By Dennis E. Westlind

Employers may once again use their discretion to discipline employees represented by a newly certified union without first bargaining, the National Labor Relations Board ruled yesterday.

The Board’s decision in 800 River Road Operating Company, LLC dba Care One at New Milford reinstates 80 years of precedent that employers have no obligation to bargain with a newly certified union before imposing discretionary discipline, as long as the discipline is “materially consistent with the employer’s established policy or practice.” 

This decision overturns the Board’s 2016 decision in Total Security Management Illinois 1, LLC, which for the first time required employers to bargain with a newly certified union prior to reaching a first collective bargaining agreement before disciplining employees.  Total Security Management required employers to give the union notice and an opportunity to bargain over discretionary discipline, even if the employer’s discipline was consistent with its  existing disciplinary policy or practice.

In 800 River Road, the Board explained that any pre-discipline bargaining obligation conflicted with prior Supreme Court and Board precedent.  It held that because issuing discretionary discipline consistent with prior policy or practice does not constitute a material change in working conditions, there is no obligation to bargain.  This decision restores to employers the right to continue to enforce existing disciplinary policies and practices during the beginning stages of a new union relationship. 

Employers should be aware that the 800 River Road decision does not give employers the right to establish new disciplinary policies and practices without first bargaining with the union; during that time period the employer must maintain the “status quo.”  For example, an employer that previously applied progressive discipline cannot change to a “zero tolerance” policy without first bargaining that change.  However, if the employer previously exercised discretion in deciding whether to discipline and at what level, it may continue to do so.  The Board’s decision expressly recognizes that an employer’s decision to impose discipline “materially consistent with its established policy or practice, including its use of discretion” is a component of the “status quo.” 

Bullard Law’s labor attorneys regularly assist employers with elections, bargaining, and employee discipline.  Please contact us with any questions about this decision or any other labor, employment, or benefits issues of interest or concern to your organization.

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