Hunton Employment & Labor Perspectives

A National Labor Relations Board Administrative Law Judge dismissed the General Counsel’s allegation that the employer violated the National Labor Relations Act by not giving the union representing its employee notice and opportunity to bargain over the discharge of an employee it represented. Starbucks Corp., 02-CA-303077, et. al. (July 24, 2023). In doing so, the Administrative Law Judge teed up the issue for the Board to change the law on appeal. The law at issue is the Board’s prior precedent under Total Security Management Illinois 1, LLC, 364 NLRB 1532 (2016). The Board in Total Security created a new bargaining obligation which employers did not have prior to the case. Under Total Security, discretionary discipline is considered what is known as a “mandatory” subject of bargaining. Specifically, the Board held that prior to imposing serious discretionary discipline, such as a suspension or discharge, an employer must provide notice and opportunity to bargain with a union representing the employee at issue regarding what, if any, discipline to impose. Id. at 1536.

The Board overruled Total Security a few years later in Care One at New Milford, 369 NLRB No. 109 (2020). In overruling Total Security, the Care One Board held that “upon commencement of a collective-bargaining relationship, employers do not have an obligation…to bargain prior to disciplining unit employees in accordance with established disciplinary policy or practice. Id. slip op. at 7. In doing so the Board called it a “return to long-standing law[.]” Id. As the law currently stands, employers are not required to bargain with unions prior to imposing discretionary discipline.

Businesses with employees represented by unions will want to pay close attention to what the Board winds up doing in Starbucks. If the Board overrules Care One and returns to Total Security, as is likely to occur, this will create new bargaining obligations for employers. The practical effect will be that the Board will conclude an employer has committed an unfair labor practice if it does not provide a union representing its employees with notice and opportunity to bargain over any discipline other than a warning. Businesses should consult with their lawyers and remain up to date on the ever-changing bargaining obligations the Board imposes on employers.