In Alan Ritchey, Inc., 359 NLRB No. 40 (2012), the National Labor Relations Board held that during the period after a union is recognized but before a first contract is reached, an employer must bargain with the union before exercising its discretion to impose certain discipline such as suspensions, demotions, or discharges. However, the Board held that an employer need not bargain if the parties have an interim grievance procedure in place. In Medic Ambulance Service, NLRB Case 20-CA-109532 (June 10, 2014), Administrative Law Judge Mary Miller Cracraft faced the question of whether the interim grievance procedure must include an arbitration component in order to alleviate the employer of the obligation to bargain before implementing discretionary discipline.
In Medic Ambulance Service, the union was recently certified and the parties were bargaining a first contract. Pending resolution of their own contract, the union and the employer agreed to apply the first two steps of a grievance procedure from an expired collective bargaining agreement that the employer had with the predecessor union:
At the first step, the union representative and the department or division director meet with the grievant to resolve the complaint. If no resolution occurs, the matter may proceed to step two. At step two, the operations manager becomes involved and the parties once again attempt to resolve the dispute.
The union and the employer, however, did not agree to use the expired agreement’s third step providing for final and binding arbitration.
Despite the interim grievance procedure, the union filed an unfair labor practice charge alleging that the employer violated Section 8(a)(5) and (1) of the National Labor Relations Act after the employer terminated 12 employees without first bargaining with the union. In defense of the charge, the employer argued that the first two steps of the expired contract constituted an agreed-upon interim grievance process contemplated by Alan Ritchey. The NLRB’s General Counsel disagreed, arguing that because there was no arbitration component included, the two-step process did not satisfy Alan Ritchey. The ALJ sided with the employer:
I find that Alan Ritchey does not mandate arbitration as a component of an interim grievance procedure. In Alan Ritchey, it was unnecessary for the Board to determine the contours of an interim grievance procedure. Unlike the instant situation in which the parties were bound to provisions of an expired agreement, there was no agreement of any kind in place in Alan Ritchey. Moreover, the Board did not apply its holding to the facts in Alan Ritchey because application was prospective only. Nevertheless, throughout its decision, the Board referred to use of an interim grievance procedure.
Surely if the Board intended to mandate arbitration as a part of an interim grievance procedure, its decision would have clearly provided such guidance.
Although the ALJ’s decision appears to comport with Alan Ritchey, if exceptions are filed by the union or the General Counsel, it is possible that the Board could reverse given that the Board has not yet addressed what is required to satisfy the interim grievance procedure caveat. Accordingly, employers, unions, and labor law practitioners should continue to monitor this and other cases involving the application Alan Ritchey.