NLRB Ruling Makes Disciplining Newly Organized Employees Difficult

Oct 12, 2016

The ruling, if it stands, will complicate compliance with National Labor Relations Board regulations.

The National Labor Relations Board (NLRB) has very specific, if sometimes confusing, requirements employers must follow when disciplining employees who have recently voted to unionize.

These rules have, with the Board’s decision in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016), become even more convoluted and difficult for employers.

A recent article in Employer Labor Relations Blog by Seyfarth Shaw, LLP, outlines how the ruling in this case will affect contractors and other business owners.

The NLRB’s decision “reaffirmed prospectively the Alan Ritchie doctrine requiring employers to bargain over discretionary discipline issued to newly organized employees pre-first contract and mandated prospective make-whole relief including reinstatement and back pay for future violations.”

The Board’s reaffirmation becomes especially noteworthy given that the Supreme Court ruled the original Alan Ritchey formula was unacceptable.

The essence of the new ruling, according to the authors, is twofold:

  1. Employees must be provided with notice and “an opportunity to bargain” before any discretionary discipline goes into effect, and
  2. The “burden of persuasion” is on the employer to demonstrate compliance with NLRB regulations.

When an employer fails to comply with the NLRB requirements, an employee may be entitled to “reinstatement and back pay.”

Actually, as the Seyfarth Shaw article makes clear, the twists and turns required to discipline an employee “pre-first contract” are considerably more complex than outlined above.

NLRB Board Member Miscimarra, in a scathing dissent, argued that the majority decision ‘’took ‘a wrecking ball to eight decades of NLRA case law.’”

This decision is a victory for organized labor.

What this ruling means, as a practical matter, is that contractors and other employers would be well-advised to consult an attorney before taking any discretionary disciplinary actions during first-contract negotiations.


NLRB Reaffirms Alan Ritchey Doctrine with New Make-Whole Twist, Seyfarth Shaw LLP, Employer Labor Relations Blog, Sept. 29, 2016.