National Labor Relations Board (NLRB) reinstates 80-years of precedent

Employers do not have to provide unions with notice and opportunity to bargain, prior to disciplining employees while negotiating a new CBA.

On June 23, 2020, the current three members of the National Labor Relations Board (NLRB) issued their decision in 800 River Road Operation Co., LLC, 369 NLRB No. 109, overruling Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). 

The current Board determined that the prior decision, which overturned 80 years of prior NLRB precedent on the issue:
(1) conflicted with Board precedent and the rationale of the decision of the U.S. Supreme Court in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) (establishing the right to union representation during disciplinary investigations), relevant to the issue;
(2) misconstrued the general unilateral-change doctrine announced by the U.S. Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962), with respect to what constitutes a material change in working conditions; and,
(3) imposed a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practice.   

The prior decision required an employer to provide a union with notice and an opportunity to bargain before imposing discipline on any union-represented employee who was not yet covered by the terms of a collective bargaining agreement; and, for any violation, required reinstatement and backpay for the disciplined employee unless the employer could prove the discipline was imposed for “good cause” within the meaning of Section 10(c) of the National Labor Relations Act.  The Board decision will apply retroactively to all pending cases in whatever stage.
As a result of the decision in 800 River Road Operating Co., LLC, the effective rule, as previously discussed in Fresno Bee, 337 NLRB 1161 (2002), is that there is no predisciplinary bargaining obligation under the National Labor Relations Act.  Our Firm previously successfully argued for application of the Fresno Bee precedent and that any change to that rule had to be applied prospectively only, CPL (Linwood) LLC, 367 NLRB No. 14 (2018).
The new Board majorities’ major decisions that overturned prior Board decisions since 2017 include:

  1. The Boeing Co., 365 NLRB No. 154 (2017)(employee handbook rules)
  2. PCC Structurals, 365 NLRB No. 160 (2017) (composition of Bargaining Units)
  3. Supershuttle Dfw, Inc.,  367 NLRB No. 75 (2019) (returning to common law principles for determining independent contractor status)
  4. Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019) (when successor is required to bargain to avoid “perfectly clear successor” status);
  5. Johnson Controls, Inc., 368 NLRB No. 20 (2019) (providing for disputes with withdrawal of recognition of union to be resolved by post-withdrawal elections)
  6. Kroger Ltd. Partnership 1 Mid-Atl., 368 NLRB No. 64 (2019)(more flexibility to permit charitable solicitations on employer premises)
  7. MV Transportation, Inc., 368 NLRB No. 66 (2019) (adoption of “contract coverage” standards to determine employer authority to make unilateral changes to working conditions).

If you have any questions regarding this favorable pro-Employer decision or about any of the other pro-Employer decisions issued by the Trump-appointed NLRB, please contact Louis J. Capozzi, Jr. at our Firm (Email: