NLRB overturns pre-discipline bargaining obligation

In 2016, the Obama-era National Labor Relations Board (NLRB) took the unprecedented step of requiring, subject to limited exceptions, that an employer provide notice and an opportunity to bargain to a newly certified union before imposing “discretionary” serious discipline, meaning discipline, such as suspension or discharge, which is “not controlled by preexisting, nondiscretionary employer policies or practices.”  In a welcome decision for employers, the NLRB recently overruled that precedent and restored the previous standard providing that an employer has no duty to bargain before imposing discretionary serious discipline so long as the discipline is materially consistent with the employer’s established policy or practice.  800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 N.L.R.B. No. 109 (June 23, 2020).

The Obama-era Board’s imposition of a pre-disciplinary duty to bargain

In Total Security Management Illinois 1, LLC, 364 N.L.R.B. No. 106 (Aug. 26, 2016), the NLRB broke with 80 years of history to require that, absent an agreed-upon grievance and arbitration provision or other dispute resolution mechanism, an employer generally must provide a union with notice and an opportunity to bargain prior to imposing discretionary serious discipline on an employee (such as suspension or discharge). Failure to do so would constitute a violation of the National Labor Relations Act (NLRA), even where the employer exercised its discretion consistent with past practice.  The normal remedy for this violation included reinstatement and back pay for a disciplined employee, unless the employer could prove that the discretionary serious discipline was imposed “for cause” within the meaning of Section 10(c) of the NLRA.

The NLRB’s return to its long-established standard

On June 23, 2020, the NLRB issued its decision in 800 River Road overruling Total Security Management.  The Board advanced three primary rationales for abolishing the pre-disciplinary bargaining obligation: (1) the imposition of a pre-disciplinary bargaining obligation conflicted with prior NLRB precedent, implicitly endorsed by the US Supreme Court, which recognized that an employer had no pre-imposition duty to bargain over discipline; (2) the exercise of discretion in a disciplinary decision which is similar in kind and degree to what the employer did in the past and within the structure of an established practice or policy does not constitute a “unilateral change”; and (3) the Total Security Management bargaining framework is “complicated and burdensome” and irreconcilable with the general body of law governing an employer’s bargaining obligations.

Accordingly, the NLRB returned to the legal standard that existed pre-Total Security Management. Under this revived standard, upon commencement of a collective-bargaining relationship, employers do not have an obligation under the NLRA to bargain prior to disciplining bargaining unit employees in accordance with an established disciplinary policy or practice.  The Board further held that, consistent with its normal practice, the decision in 800 River Road applies retroactively to all pending cases. 

Takeaways for employers

The 800 River Road decision should provide welcome relief to employers dealing with the unfamiliar obligations and legal requirements that come with a newly unionized workplace.  The freedom to impose discretionary serious discipline according to existing policies and procedures will permit employers to manage the workforce in a consistent and timely manner.  However, the new standard is not without pitfalls – employers are urged to take care to ensure that disciplinary measures imposed on employees truly are consistent with past policy and practice. As we have noted in previous alerts, the labor law landscape is currently in a state of flux, which makes guidance from knowledgeable and experienced labor counsel especially critical.  We encourage you to review our articles discussing the NLRB’s revised election procedures and revised joint employer standard.  If you have questions on these issues, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney.

This information does not, and is not intended to, constitute legal advice.  All information, content, and materials are for general informational purposes only.  No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.