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.

In an October Advice Memorandum, the Office of the General Counsel for the NLRB (General Counsel) concluded that a union’s continued actions of unlawful insistence are not a refusal to bargain if bargaining negotiations have ceased.