NLRB Holds That Employers Again Have No General Predisciplinary Duty to Bargain on Commencement of a Collective Bargaining Relationship | Practical Law

NLRB Holds That Employers Again Have No General Predisciplinary Duty to Bargain on Commencement of a Collective Bargaining Relationship | Practical Law

In 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the National Labor Relations Board (NLRB) held that the National Labor Relations Act (NLRA) does not require an employer to bargain concerning its employee disciplinary practice at the start of a collective bargaining relationship.

NLRB Holds That Employers Again Have No General Predisciplinary Duty to Bargain on Commencement of a Collective Bargaining Relationship

by Practical Law Labor & Employment
Published on 26 Jun 2020 • USA (National/Federal)
In 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the National Labor Relations Board (NLRB) held that the National Labor Relations Act (NLRA) does not require an employer to bargain concerning its employee disciplinary practice at the start of a collective bargaining relationship.
On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, the panel (Board) heading the NLRB's judicial functions:
  • Held that, when a collective bargaining relationship commences, employers have no duty under Sections 8(d) and 8(a)(5) of the NLRA to bargain before disciplining employees consistently with an established disciplinary policy or practice.
  • Overruled Total Security Management Illinois 1, LLC, concluding that this decision:
    • conflicts with Board precedent and the rationale of the US Supreme Court in NLRB v. J. Weingarten, Inc. (420 U.S. 251 (1975));
    • misconstrues what constitutes a material change in working conditions requiring bargaining and how the unilateral-change doctrine set out by the Supreme Court in NLRB v. Katz operates, generally (369 U.S. 736 (1962)); and
    • creates a complicated and burdensome bargaining scheme irreconcilable with the general body of law governing statutory bargaining practices.
    (see 364 N.L.R.B. No. 106 (Aug. 26, 2016); for more information, see Legal Update, Unionized Employers Must Bargain About Individual Discipline In Absence of a Negotiated Grievance Process: NLRB.)
  • Stated that its decision will apply retroactively to all pending cases.
(369 N.L.R.B. No. 109 (June 23, 2020).)
In 800 River Road, the Board rolled-back a recently created and short-lived bargaining obligation and, as the Board noted, reinstated the law as it existed for 80 years. 800 River Road allows employers to apply their established disciplinary policy without first having to engage in bargaining about the scope, degree, and mechanisms for challenging and reviewing that discipline.