Trump NLRB Strikes Again: Employers Unleashed to Unilaterally Discipline Following Union Certification

June 25, 2020 by Lorrie Bradley

In its latest attack on union and employee rights, the Trump National Labor Relations Board has now overruled precedent requiring employers to give notice and an opportunity to bargain before implementing discipline in the period before the employer and union negotiate a first contract. Care One, 369 NLRB No. 109 (June 23, 2020).

The Care One case involved three employees who were suspended and one who was fired after the union was certified but before a contract had been negotiated. The employer disciplined these employees under the existing employee handbook, but did so without first giving notice to the union of its intent to discipline and without giving the union an opportunity to bargain over the matter. The Trump Board overruled the trial decision that concluded the employer’s unilateral action was illegal.

Previously, in Total Security Management, the Board had held that when collective bargaining begins after a union is recognized or certified, the employer has an obligation to bargain over discretionary aspects of the disciplinary policy before imposing serious discipline, such as a suspension or termination. The National Labor Relations Act generally requires employers to maintain the terms and conditions of employment – the “dynamic status quo” – without material changes during this period.

By overruling Total Security Management, the Board now permits an employer to issue discipline pursuant to an existing policy or framework during the period before a first contract, as long as it is similar to the kind and degree to how the employer exercised its discretion in the past.

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