Employer’s Discharge of Employees Did Not Violate Bargaining Obligations under NLRB’s Alan Ritchey Decision
June 17, 2014
By Nicholas Simpson* and Chris Johlie
Under the National Labor Relations Board’s 2012 Alan Ritchey decision, an employer generally must bargain with a newly-certified union before imposing certain discipline, including a suspension, demotion, or discharge, where the parties have not concluded negotiations on a first contract. Under Alan Ritchey, however, an employer may impose discipline unilaterally if it has agreed with the union on an interim grievance procedure during negotiations for a first contract. Last week, an NLRB Administrative Law Judge clarified the interim grievance procedure exception, and ruled that such a procedure does not have to include the right to arbitration. The ALJ found that because the newly-certified union had agreed to an interim grievance procedure while the parties continued to negotiate their first collective bargaining agreement, the employer, Medic Ambulance Service, was not required under Alan Ritchey to bargain with the union before discharging 12 employees.
In Medic Ambulance Service, the employer and the union agreed to an interim grievance procedure while negotiating their first collective bargaining agreement. The interim grievance procedure was derived from a grievance procedure that had been negotiated with a previous union, but the parties agreed that there would be no right to pursue arbitration of grievances until after they completed negotiations on an overall agreement.
Before the parties finished negotiating their first agreement, the employer discharged 12 employees. The employer did not provide the union with notice or an opportunity to bargain before discharging the employees. The NLRB’s General Counsel argued that the union’s agreement to the interim grievance procedure did not excuse the employer’s failure to bargain with the union before discharging the employees because it was negotiated with a previous union and did not include arbitration.
The ALJ rejected the General Counsel’s arguments and found that the parties’ interim grievance procedure allowed the employer to act unilaterally. Furthermore, because Alan Ritchey does not mandate arbitration as a component of an interim grievance procedure, the fact that the interim agreement did not provide for arbitration was irrelevant. Accordingly, the ALJ upheld the discharges and dismissed the ULP charge.
As we recently reported, and as this case illustrates, the full ramifications of Alan Ritchey will develop over time. Employers who find themselves in first-time bargaining situations must be mindful of their obligations under Alan Ritchey.
* Nicholas Simpson is currently a first-year law student at DePaul University and is a Franczek Radelet LEADS Fellow.