When a workforce organizes a union and a labor contract is still months away, human resource issues continue to arise. Often the issue turns on whether the employer has an obligation to bargain with the new union prior to the imposition of workplace discipline. Prior to 2016, under long-settled case law, employers had no statutory obligation to bargain with the new union about discretionary discipline as long as the discipline imposed was materially consistent with the employer’s established policy or practice. That obligation changed in 2016 with the Board decision Total Security Management Illinois (Total Security).

Total Security required an employer with limited exceptions to provide a union with notice and the opportunity to bargain about the discretionary elements of the employer’s existing disciplinary policy before imposing “serious discipline” defined as suspension, demotion or a discharge.” So, even if the employer had a disciplinary policy as part of the status quo, it could not unilaterally use it without first bargaining during the period of time prior to inking the first labor contract.

The state of the law was restored last week when the National Labor Relations Board (Board) voted to overturn Total Security. The Board’s decision, 800 River Road Operating Company, LLC Care One at New Milford (800 River Road), reinstates 80 years of precedent that employers have no statutory duty to bargain before imposing discretionary discipline consistent with the employer’s established policy or practice.

The undisputed facts of 800 River Road

A New Jersey nursing home operator, 800 River Road Operating Company, d/b/a Care One at New Milford (Care One) had challenged the certification of the union, United Healthcare Workers East (Union) as the exclusive bargaining representative of its non-professional workforce. While the certification of the Union was upheld in 2017, in the intervening period, Care One unilaterally suspended three employees and discharged one employee in conformity with its disciplinary policy and without notifying and offering to bargain with the Union. The General Counsel issued a complaint alleging, in part, that the unilateral imposition of discretionary discipline violated §§8(a) (5) and (1) of the National Labor Relations Act (Act) under Total Security. The General Counsel also argued that Total Security should be overruled and that the standard affirmed in Fresno Bee be reinstated.

The ALJ found that the suspension and discharge actions taken against the employees satisfied the definition of “serious discipline” and that Care One was required under the Act to provide the Union with notice and an opportunity to bargain over the discipline, consistent with Total Security.

The Board overrules Total Security Management

In 800 River Road Operating Co., the Board  overruled Total Security, criticizing the 2016 decision as 1) in conflict with Board precedent and the Supreme Court’s Weingarten decision,  2) a mischaracterization of the unilateral change doctrine announced in NLRB v. Katz (Katz), and 3) a “complicated, burdensome bargaining scheme … irreconcilable with the law regarding statutory bargaining practices.” The Board announced that the Fresno Bee decision, which affirmed the ALJ’s analysis and conclusion that no statutory obligation exists when an employer exercises discretion within the framework of an established  disciplinary policy, correctly characterizes the state of the law regarding bargaining practices.

The Board also clarified that the unilateral change doctrine announced in Katz does not apply in the context of meting out employee discipline consistent with established discipline policies or practices. Katz requires employers of union-represented employees  to refrain from making a material change regarding any term or condition of employment that constitutes a mandatory subject of bargaining  unless notice and an opportunity to bargain is provided to the union. The unilateral change doctrine in Katz, however, does not apply where evidence establishes that the employer imposed its pre-existing disciplinary rules or policies to discipline individual employees during negotiations of a first contract with a newly elected bargaining representative.

The 800 River Road decision restores long-standing settled precedent disrupted by Total Security. Employers which engage in first contract negotiations  with a  union can impose their  pre-existing discipline policies and practices without bargaining with the union over discretionary discipline decisions. Employers, however, must maintain and continue to make decisions “materially consistent” with its established policy or practice, “including its use of discretion.” The Board decision in 800 River Road applies retroactively to all pending cases. Pre-discipline bargaining entered into prior to the 800 River Road decision and in reliance on Total Security will be deemed “superfluous” but not unlawful.

If you have questions related to the latest Board decisions and your statutory obligations under the NLRA, contact Jon Anderson, Tom O’Day, or your Husch Blackwell attorney.

Tracey Oakes O’Brien, Knowledge Manager,  is a co-author of this content.