The National Labor Relations Board has overruled a previous Board’s 2016 Decision and reset an employer’s ability to discipline union-represented employees before reaching a first contract with the union.

In 2016, a Democratic-dominated Board created an obligation for employers, whose employees were newly represented by a union, to bargain with the union over disciplinary action even though no collective bargaining agreement had been negotiated. Total Security Management Illinois, 364 NLRB No. 106 (2016).  For 80 years prior to Total Security Management, the Board and the U.S. Supreme Court recognized an employer’s right to impose discretionary discipline on employees, consistent with the employer’s policy or practice, without first negotiating with the union.  In a 3-0 decision issued June 23, 2020, the Board overruled Total Security Management.  800 River Road Operating Company, d/b/a Care One at New Milford, 369 NLRB No. 109 (2020).  The Board acknowledged the U.S. Supreme Court has ruled that once a union has certified as the representative of a group of employees, an employer cannot make material changes to employees’ wages, hours, and working conditions without first giving the union notice of the contemplated change, and bargaining with the union over the change if the union demands to do so.  However, the Board held the pre-discipline bargaining obligations created by Total Security Management conflicted with prior Supreme Court and Board precedent, misconstrued the Supreme Court’s unilateral-change doctrine concerning what constitutes a material working conditions change and imposed a too-complicated and too-burdensome scheme irreconcilable with the general body of law governing statutory bargaining practices.

The Board’s Decision applies retroactively to all pending cases.