Disciplining Employees in a Newly Unionized Setting

The time after a union is voted into place and before the parties have entered into a collective bargaining agreement is often viewed as a period of great uncertainty. It is typically a time of considerable posturing as the employer and union seek to establish their respective authority as they work through this new relationship. There is often disagreement on what constitutes a management right (that does not need to be negotiated) as opposed to a mandatory subject of bargaining (that must be negotiated). Read on to learn more about disciplining employees in a newly unionized setting. A typical disputed area is the employer’s right to determine how to discipline employees before a first union contract is finalized. This area received significant clarity from the National Labor Relations Board (NLRB or Board) on June 23, 2020, as it applies to private sector employers.1 In 800 River Road Operating Company, LLC d/b/a Care One at New Milford and 1199 SEIU, United Healthcare Workers East, 369 NLRB No. 109, the Board issued a decision stating that upon commencement of a collective-bargaining relationship, employers do not have an obligation to bargain prior to disciplining bargaining unit employees in accordance with an established disciplinary policy or practice.  This Care One at New Milford decision significantly and specifically…