In Total Security Management Illinois 1, LLC, the Board reaffirmed that an employer must provide notice and an opportunity to bargain prior to imposing discretionary serious discipline on employees who are represented by a newly certified or recognized union, but are not yet covered by a collective bargaining agreement. The Board also explained that reinstatement and back pay can be awarded for these types of violations. Reinstatement and back pay will not be awarded, however, if the discipline was “for cause,” within the meaning of Section 10(c) of the NLRA.
On February 14, 2017, the NLRB’s Division of Operations-Management issued a memorandum instructing NLRB Regions to collect evidence relating to the employer’s “for cause” defense during the initial investigation of charges based on these types of violations. Unions should therefore be prepared to submit evidence during the initial investigation to rebut the employer’s claim that the discipline was for cause.