NLRB Restores Important Employer Right

By Kamer Zucker Abbott

June 24, 2020

This week, the National Labor Relations Board (Board) rolled back another decision of the Obama Board, and ruled that an employer has no obligation to bargain with a newly certified union over discipline prior to the parties agreeing upon their first collective bargaining agreement. The Board’s decision, in 800 River Road Operating Co., LLC d/b/a Care One at New Milford, overturns the Obama Board’s decision in Total Security Management, Illinois 1, LLC.

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 on any union-represented employees who are not yet covered by a collective-bargaining agreement. An employer’s failure to engage in such bargaining would violate Section 8(a)(5) of the Act even when the employer did not alter a preexisting disciplinary policy or practice but, instead, merely continued to exercise discretion consistent with that policy or practice when determining whether and how to discipline individuals.

The Board overruled Total Security Management and reinstated “the law as it existed for 80 years, from the Act’s inception until issuance of that decision.” The Board explained that it has never before recognized a predisciplinary bargaining obligation under the National Labor Relations Act and that imposition of such an obligation “misconstrues the general unilateral-change doctrine” and “imposes a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practices.”

If you have questions about this terrific decision, please contact a KZA attorney.