The National Labor Relations Board has restored a prior standard, one that had stood for about 80 years before being overturned in 2016, which governs an employer’s duty to bargain over employee discipline during the time period between when a new union is certified and a first contract is negotiated.  In 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), the Board reinstated the rule that employers have no duty to bargain before imposing discretionary discipline, which is consistent with the employer’s existing policy or practice, prior to bargaining a first contract with a newly certified union.

In reaching this conclusion in 800 River Road, the Board reversed its 2016 decision in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), which had required employers to bargain over employee disciplinary action upon commencement of a collective-bargaining relationship.  Specifically, Total Security required employers to provide a new union with notice and opportunity to bargain regarding the discretionary aspects of an existing disciplinary policy before issuing “serious discipline” to a bargaining unit employee.

In reversing Total Security, the Board was fairly critical of its holding.  The Board noted that the decision was inconsistent with United States Supreme Court and Board precedent, and created a “complicated and burdensome” scheme that was inconsistent with the general body of law surrounding bargaining practices.

Although the 800 River Road decision will be applicable to a limited number of cases, it is important for employers who have recently been forced to bargain with a new union.  It will allow those employers to continue to implement existing disciplinary policies and procedures consistently and without the need to bargain.  Also, the Board announced that its 800 River Road decision would be applied retroactively.