NLRB Reaffirms Obligation to Bargain Over Pre-Contract Discipline But Also Establishes a Burden-Shifting Defense

The Board found that the discharges in Total Security met the standard established in Alan Ritchery for pre-imposition bargaining and that no such bargaining took place. The board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice.

Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations. In addition to standard remedial relief, i.e. cease and desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged. In the event the parties post-violation bargained in good-faith to impasse over the discipline, back pay would run until the date of impasse.

Such make whole relief would be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. This new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.”

The burden of proof then shifts to the charging party to challenge the employer’s showing by demonstrating, for example, discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless. The ultimate burden of persuasion remains, at all times, with the employer.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at