Jul 03, 2020 - 5:15pm

The NLRB’s Discipline Defense


Executive Director, Labor Policy

For the last couple of years, the National Labor Relations Board (NLRB) has been chipping away at the dubious legacy of the Obama-era Board—a legacy that by one count overturned 4,559 cumulative years of precedence and produced numerous decisions tilted heavily in favor of the interests of organized labor. In doing so, the current Board majority has issued its own decisions on any number of topics, ranging from the truly controversial to the relatively obscure, but all of which have an impact on employers.

The latest among the NLRB’s policy shifts—or restorations—involves an employer’s right to discipline employees when a union has a new collective bargaining relationship with it but there is not yet a first contract in place.  In a decision released last week in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the Board reversed a 2016 decision that had imposed a new, burdensome obligation on employers in such instances.

Released on August 2016, the NLRB’s Democrat majority addressed in Total Security Management Illinois 1, LLC the question in pre-contract cases “whether an employer has a duty to bargain before disciplining individual employees, when the employer does not alter broad, preexisting standards of conduct but exercises discretion over whether and how to discipline individuals.”

As it happens, the Total Security decision was the second bite at this apple for the Obama-era Board. It first addressed more or less the same issue in the tortured 2012 Alan Ritchey case in which the NLRB faulted the company for exercising discretion in following its own disciplinary policies, such as being lenient on an employee following the death of her husband when more severe discipline would normally have been imposed. That decision extended the reach of the general rule that an employer may not alter the “terms and conditions of employment” once a union has been elected to represent employees, but it subsequently was invalidated by the Supreme Court’s decision in NLRB v. Noel Canning, which found the recess appointments of two Board members to be unconstitutional.

Total Security was the properly-constituted, albeit lopsided, Board’s attempt to adopt the same policy as Alan Ritchey sought, and that is precisely what it did, about which dissenting Republican Member Philip Miscimarra said “[t]he new obligations take a wrecking ball to eight decades of NLRA case law.”

Indeed, the current Board noted in its 800 River Road decision that “for 80 years, from the [National Labor Relations] Act’s inception until issuance of that [Total Security] decision. … the Board did not recognize a predisciplinary bargaining obligation,” a policy that the Obama-era Board “dismissively” overruled. It further observed that Total Security conflicted with Board and Supreme Court precedent, misconstrued the general rule against material changes before a first contract is adopted with a new union, and imposed “a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practices.” For those reasons, the Board said, “Total Security must be overruled,” and just like that, one more example of the Obama-era NLRB anti-employer zealotry fell to the wayside.  

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About the Author

About the Author

Sean P. Redmond
Executive Director, Labor Policy

Sean P. Redmond is Executive Director, Labor Policy at the U.S. Chamber of Commerce.