March 30, 2023

Volume XIII, Number 89

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NLRB Overrules 2016 Decision Requiring Employers To Negotiate With Newly Certified Union Over Disciplinary Action

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.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 177
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About this Author

Mark D. Nelson, Polsinelli PC, Legal Strategies Attorney, Union Avoidance lawyer
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Mark Nelson thrives on crafting legal strategies that are grounded in each client's business objectives. In his more than 30-year career, he has represented management in labor relations and employment discrimination issues and has extensive experience representing employers in a wide variety of labor matters including:

  • Union avoidance

  • Union organizing campaigns

  • Contract negotiations

  • Labor disputes

  • ...
312.463.6371
Jay M. Dade, Polsinelli PC, Employment Discrimination Claims Attorney, Wage and Hour Disputes Lawyer
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Jay M. Dade is an experienced labor and employment lawyer who counsels clients on:

  • Day-to-day personnel management and union management issues, including alcohol and drug testing policy implementation and enforcement

  • Federal and state wage-hour matters

  • Discrimination claims arising under federal and state law

  • Family and Medical Leave Act matters

  • Unfair labor practice charges, union...

816.360.4196