NLRB Advice Memoranda, AT&T Mobility, LLC, National Labor Relations Board, (Feb 16, 2023)

This case, involving the discharge of an employee in a newly certified bargaining unit before the parties reached an initial collective-bargaining agreement, was submitted for advice, per Memorandum GC 21-04, on whether it presents a vehicle for overturning Care One at New Milford, 369 NLRB No. 109 (2020). [1] The case also presents the issue of whether the Employer unlawfully failed to bargain in good faith over the employee's discharge, upon request, post-implementation. We conclude that the Employer has not violated the Act under extant Board law and, accordingly, this case does not present an appropriate vehicle to seek doctrinal change. Therefore, the Region should dismiss the charge, absent withdrawal.

Initially, the Employer's failure to bargain before discharging the employee did not violate the Act under Care One. There, the Board overruled Total Security Management Illinois 1, LLC, 364 NLRB 1532 (2016), and held that employers have no duty to bargain over discretionary discipline of employees not yet covered by a collective-bargaining agreement if the discipline is “similar in kind and degree to what the employer did in the past within the structure of established policy or practice.” Care One, 369 NLRB No. 109, slip op. at 5. [2] Although the Employer's disciplinary system allows the Employer discretion, the Employer presented documentation that it discharged nine other employees for similar misconduct. This misconduct included, inter alia, documenting customer calls while never leaving home, making false reports, and idling in vehicles while claiming to be on a sales call. The Union did not present any countervailing evidence, arguing only that Care One was wrongly decided and should be overturned.

We also conclude that the Employer did not engage in bad-faith bargaining post-implementation. [3] Shortly after the Union requested to bargain over the employee's termination, the parties agreed that the newly certified unit would be covered by an existing collective-bargaining agreement (“Orange Book”) that contained grievance-arbitration machinery. The Union filed and processed a grievance on the employee's behalf, met on and discussed the grievance with the Employer, and made multiple information requests that were fruitful. The Union presented arguments regarding the merits of the discharge, and the Employer responded with its own arguments. Ultimately, the Employer denied the grievance at the second step. The evidence indicates the Union stopped pursuing the grievance after the Employer's step-two denial. Accordingly, there is insufficient evidence to show that the Employer bargained in bad faith after discharging the employee.

Based on the foregoing, the Employer did not violate the Act under extant law and this case does not present an appropriate vehicle to urge the Board to overrule Care One. ​     ​ Therefore, the Region should dismiss the charge, absent withdrawal. This email closes this case in Advice as of today.

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