The NLRB Finally Cancels Pre-Disciplinary Bargaining

By Patrick Scully

In a long-awaited move, the National Labor Relations Board (“NLRB” or “Board”) overruled the Obama Board’s decision in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016) (“Total Security“), and concluded that an employer does not have to bargain individual disciplinary decisions with a newly certified labor organization.

As the Board explained, for nearly 80 years (since the NLRA was adopted), employers were free to continue to apply their established disciplinary processes notwithstanding the fact that a union had been certified as the bargaining representative of the employer’s employees.  In other words, unless and until the employer and the union bargained changes, the employer was free to continue to discipline employees under the “status quo,” even if that meant the employer exercised some discretion in the imposition of discipline.

In Total Security, the Obama Board ruled that because a newly certified employer was prohibited from making any “unilateral change” to employees’ terms and conditions of employment, it could not unilaterally impose discipline that involved any quantum of employer discretion. In so doing, the Obama Board overturned the Board’s prior decision in Fresno Bee, 337 NLRB 1161 (2002), which had specifically rejected pre-disciplinary bargaining.

The current Board pointed out that Total Security did not only improperly overrule Fresno Bee, it conflicted with long-standing U.S. Supreme Court and Board precedent regarding what constitutes the “status quo.”  In this regard, the Board explained that maintaining the status quo sometimes entails change, so long as that change is consistent with the employer’s long-standing practices.  Further, every exercise of employer discretion does not mean there has been a “change” in employees’ terms and conditions of employment. 

The Board also noted that Total Security arguably conflicted with the Supreme Court’s watershed decision in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), which specifically rejected any employer duty to bargain with a duly selected Weingarten representative.

Most significantly, the Board finally put to rest the ill-fitting and awkward hybrid pre-disciplinary bargaining model that had confounded employers and disrupted initial collective bargaining.  Employers will now again be able to continue their regular disciplinary processes while bargaining in good faith with a newly certified union. 

The Board’s decision will be applied retroactively and to all pending cases involving this issue.

800 River Road Operating Company, LLC, d/b/a Care One at New Milford, 369 NLRB No. 109 (June 23, 2020).