Employers Have No Duty to Bargain Over Discipline Taken Prior to a Contract, NLRB Rules
Author: Robert S. Teachout, XpertHR Legal Editor
July 14, 2020
An employer does not have a duty to bargain with a union over employee discipline prior to reaching a first collective bargaining agreement, the National Labor Relations Board (NLRB) ruled recently. The ruling in 800 River Road Operating Company restores the previous long-standing law that permitted an employer to take discretionary disciplinary action based on pre-existing established disciplinary policy or practice while it commenced a collective-bargaining relationship with a newly elected union.
The 800 River Road ruling overruled an Administrative Law Judge's determination that the company violated the National Labor Relations Act (NLRA) by disciplining four employees without first providing the newly recognized union with notice and an opportunity to bargain.
The NLRA prohibits interference with exercise of employees' rights and requires employers to engage in good-faith bargaining with the elected union. Employers whose employees are represented by a union have a duty to bargain with the union before changing terms and conditions of employment, including for disciplinary policies and procedures.
The ruling reverses Total Security Management Illinois, which imposed a pre-discipline bargaining obligation on newly unionized employers. The Obama-era board had held that an employer was required to notify a union before imposing "serious discipline" on any union-represented employee and provide it an opportunity to bargain over an existing disciplinary policy discretionary even before reaching an initial collective bargaining agreement.
In its ruling, the NLRB held that Total Security's bargaining obligations:
- Conflicted with Board precedent and the Supreme Court's Weingarten decision;
- Misconstrued the general unilateral-change doctrine, which prohibits employers from making material changes in working conditions without bargaining with a union; and
- Imposed a complicated and burdensome bargaining scheme that is irreconcilable with statutory bargaining practices.
Employers that are bargaining their first union contract should ensure that they continue to maintain the status quo for all terms and conditions of employment, including following their existing disciplinary policies and practices.