These obligations are imposed equally on the employer and the union. The obligation does not compel either party to agree to a proposal by the other, nor does it require either party to make a concession to the other.

However, an employer engages in bad-faith surface bargaining that violates the Act when it maintains proposals that would nearly nullify a union's representational role. For example, in District Hospital Partners, L.P. v. NLRB, the U.S. Court of Appeals for the D.C. Circuit affirmed the Board's determination that the employer violated the Act by proposing an expanded management rights clause, a no-strike provision, and a nonbinding grievance procedure, which the union argued undermined the bargaining process.1 To that end, the employer did not materially revise its position over the course of 30 bargaining sessions transpiring over two years. The Court found that the employer's conduct demonstrated an intent to subvert the bargaining process.

In 2012, the NLRB held that the duty to bargain in good faith about discretionary discipline might be triggered even before there is a first collective bargaining agreement put in place.2 The Board reaffirmed this holding in 2016.3

In Care One at New Milford, the Board overruled Total Security and concluded that pre-discipline bargaining before a first contract is not required when an employer exercises discretion within the framework of an established disciplinary policy.4 As the Board observed, “the correct analysis ... must focus on whether an employer’s individual disciplinary action is similar in kind and degree to what the employer did in the past within the structure of established policy or practice.” Employers nonetheless are required to bargain pre-contract, upon request by the union, over employee discharges after the discharge.

In August 2024, the General Counsel argued that an administrative law judge should overrule Care One at New Milford, and reinstate Total Security, but the administrative law judge declined to do so.5 The Board again declined to overrule Care One in March 2025 and affirmed an administrative law judge's determination that an employer did not violate the Act by disciplining an employee without providing the union with prior notice or an opportunity to bargain over the discipline and its effects. After the union's certification but before the parties reached an initial contract, the employer issued a final written warning under its discretionary progressive disciplinary policy to another employee for walking off a shift similar in kind and degree to what the employer did in the past within the structure of established policy. The sole issue concerned whether the Board should overrule Care One, and the Board did not do so.

• On June 25, 2025, then-Acting General Counsel William Cowen issued a General Counsel Memorandum directing Regions to find a party committed a per se violation of the NLRA by surreptitiously recording a bargaining session.6

1. Nos. 24-1134 and 24-1165 (D.C. Cir. Jun. 27, 2025)