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NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace.  (See our prior blog posts herehere and here for a few recent examples.)

On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned  Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), which had required employers to provide notice and an opportunity to bargain to a newly-certified union on “serious” disciplinary action against unit employees, even before a collective bargaining agreement is in place.  In doing so, the Board returned to a rule established 80 years ago that had permitted employers to discipline employees without first notifying or bargaining with a newly-certified union, provided that the action taken was consistent with established policy or practice preexisting the certification.

The ALJ’s Application of Total Security      

In 800 River Road, the union was certified by the NLRB as the representative of certain employees at the employer’s facility in 2012.  The employer challenged the certification, which was ultimately upheld by the D.C. Circuit in 2017.  Prior to the execution of an initial CBA with the union, the employer suspended three employees and discharged another pursuant to its then-existing disciplinary policy, without notice to the union.  During contract negotiations months later, the employer informed the union of the discipline.  An unfair labor practice charge was filed alleging that the employer had violated its duty to bargain over the discipline of the four employees.

Applying Total Security, an administrative law judge of the NLRB held that the employer’s actions satisfied the definition of “serious discipline,” and that the failure to provide the union with notice and an opportunity to bargain violated the NLRA.

800 River Road Overturns Total Security 

In a unanimous opinion, the Board overturned Total Security, holding that the employer was permitted, without bargaining, to discipline the employees pursuant to its existing disciplinary policy.  The Board’s rationale for overturning Total Security was three-fold:

  • First, Total Security conflicted with 80-years of precedent, which had not required employers to notify or bargain with a newly-certified union concerning the exercise of discretionary discipline imposed pursuant to an existing policy.

  • Second, the Total Security-Board had misinterpreted the Supreme Court’s application of the unilateral-change doctrine enunciated by the Supreme Court in NLRB v. Katz, emphasizing that not every action involving the exercise of employer discretion that results in a change of terms and conditions of employment requires notice to the union and an opportunity to bargain.

  • Third, Total Security imposed confusing and burdensome obligations at odds with general principles of good faith bargaining, as it did not require the parties to negotiate either to agreement or impasse before permitting the employer to impose discipline, leaving it unclear when action could be lawfully taken. Moreover, requiring employers to bargain in advance over serious discipline interfered with their legitimate business needs by causing undue delay.

The ruling in 800 River Road applies retroactively.


This decision is a clear “win” for employers, as the Board relieved management of an onerous and confusing bargaining obligation.  In practice, it had been challenging to say the least for employers to distinguish “serious” discipline from garden–variety action not requiring notice and bargaining.

In addition, Total Security established no bright line as to when the bargaining obligation had been fully discharged, allowing the employer to proceed.  This left employers in a quandary.

800 River Road frees employers engaged in first contract bargaining to act swiftly in addressing serious disciplinary issues, without union involvement, provided that the employer follows its existing practice and procedure in doing so.

© 2023 Proskauer Rose LLP. National Law Review, Volume X, Number 177

About this Author

Peter D. Conrad Partner Hiring & Terminations Labor-Management Relations Strategic Corporate Planning

Peter D. Conrad began his legal career as a trial attorney and hearing officer at the National Labor Relations Board.

Peter joined Proskauer’s Labor & Employment Law Department in 1980 and became a partner in 1986. He has represented employers in numerous industries (including health care, higher education, financial services, trucking, pharmaceutical, petrochemical, telecommunications, legal services, publishing, retail, broadcasting, entertainment, hotel and professional sports) in the full range of unfair labor practice and election proceedings before the NLRB. In the nearly...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...


Dominique Kilmartin is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Dominique graduated cum laude from Seton Hall University School of Law, where she was an editor of the Seton Hall Law Review. Dominique also worked as a student attorney at the Civil Litigation & Practice Clinic and as an intern for the Honorable Judge John Michael Vazquez of the United States District Court for the District of New Jersey. Upon graduation from law school, Dominique received the ABA/BNA Award for Excellence...