Employers Can Discipline Newly Unionized Employees According to NLRB

The National Labor Relations Board (NLRB) has issued a ruling making it permissible for an employer to discipline newly unionized employees for violations of the company’s disciplinary policy. The ruling overturns a 2016 decision which made it illegal for an employer to discipline a newly unionized employee due to concerns of potential abuse. However, the Board has ruled that employers have no legal obligation to consider whether an employee has been recently unionized before disciplining them.

In this case, 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), three nonprofessional employees at a nursing care and rehabilitation center were suspended shortly after the facility’s nonprofessional employees had unionized. The union sued on their behalf, claiming the company had breached an obligation to negotiate with them first before initiating disciplinary measures. Under the 2016 ruling in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), they would have been correct, as that ruling imposed a special obligation on employers to negotiate with a union when discipline was imposed on recently unionized employees.

However, in the new Care One decision, the NLRB has stated that the Total Security decision was based on a faulty interpretation of the National Labor Relations Act (NLRA), and has stated there is no special obligation to be found the statutory language. This ruling is significant because it allows an employer’s previous disciplinary policy to be enforced while union negotiations are ongoing, which may include a negotiation of that very disciplinary policy. In addition, some employers use the cover of official discipline to retaliate against employees who support unionization, but according to the NLRB, that opportunity for abuse is not sufficient to impose an additional legal obligation on employers with respect to disciplining their employees.

If you are looking into unionizing, or you already have a union and are in a dispute with your employer, give the Law Offices of Steven Sack a call. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer who has considerable experience in handling the many aspects of labor and employment law. To schedule a consultation with New York City employment lawyer Steven Mitchell Sack, call (917) 371-8000.

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