While Alan Ritchey Inc., 359 NLRB No. 40 (2012), became “non-binding” as a result of the Noel Canning decision, its holding is alive and well with the Board and the General Counsel’s Office. In a recently released Advice Memorandum, the General Counsel’s Office took the position that “Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”  Washington River Protection Solutions, Case 19-CA-125339 (Div. Advice Oct. 14, 2014), released Nov. 18, 2014.

This alone is not earth shattering news, given that the General Counsel was a member of the Board when Alan Ritchey issued. In Alan Ritchey, the Board decided that newly organized employers normally cannot discipline employees without first notifying the union and bargaining over the decision. Although a few exceptions to the obligation to bargain before issuing the discipline (minor discipline, exigent circumstances) may exist and impasse need not be reached in negotiations before implementing discipline, an employer cannot act unilaterally and negotiations to agreement or impasse must follow. We reviewed this decision in a previous blog post.

Nor was the decision in Washington River Protection Solutions arguably that surprising. There, during the hiatus between contracts, the employer discharged an employee for misconduct in accordance with the disciplinary policy it had instituted under the contract before it expired, which gave the employer the right to implement work rules and discipline for just cause. The employer also refused to arbitrate because the discharge occurred after contract expiration. The Office of the General Counsel found that “it would not be appropriate to apply the Alan Ritchey pre-discretionary discipline bargaining obligation rationale here because the parties were operating under a discipline system that resulted from collective bargaining and there is no evidence that the Employer made any unilateral change to that discretionary discipline system or to the parties’ grievance-arbitration procedure.”

But what is disturbing is a reference in Washington River Protection Solutions to what appears to be an unpublished Advice Memorandum: Arlington Metals Corp., Case 13-CA-119045 (Div. Advice May 20, 2014). In Arlington Metals, the General Counsel’s Office apparently found that an employer that “lawfully implements a disciplinary system after impasse but refuses to arbitrate a grievance regarding discipline imposed pursuant to that system” on the basis that the parties lack a binding grievance-arbitration provision thereby commits an unfair labor practice. Apparently, the unilateral implementation of terms and conditions of employment “do not satisfy Alan Ritchey’s requirement of a ‘binding agreement’ to resolve disputes.” Such an employer remains obligated to bargain over discipline despite having implemented a disciplinary system.

It is difficult, especially without access to the opinion, to see how Arlington Metals can be reconciled with an Advice Memorandum issued just a month before Alan Ritchey, in which the General Counsel’s Office determined that an employer did not commit an unfair labor practice by lawfully implementing the “for cause” discipline portion of its management rights article upon reach impasse without implementing the grievance/arbitration procedure that would permit the union to test the employer’s “for cause” determinations. Anchorage Hilton, Case 19-CA-078070 (Div. Advice Nov. 15, 2012). While that case focused on whether the phrase “for cause” was so discretionary that it could not be implemented upon impasse, the charge was filed after the employer had relied upon that implemented language to discipline employees. Moreover, one would think, given that the General Counsel must have been aware of Alan Ritchey’s imminent issuance when Anchorage Hilton was issued, it was intended to be applicable even after Alan Ritchey was issued.

How is an employer to reconcile Alan Ritchey, Washington River Protection Solutions, Arlington Metals, and Anchorage Hilton?

  1. An employer negotiating for a first contract should follow Alan Ritchey until a contract is reached (or until the Board or a court reverses Alan Ritchey’s holdings).
  2. An employer implementing a last, best, and final offer for a new bargaining unit must continue to bargain discipline in accordance with Arlington Metals even if it has implemented a just cause discipline provision since the discipline was not issued pursuant to a “binding agreement.”
  3. During the pendency of bargaining a new contract after an old contract has expired, an employer may continue to discipline employees in accordance with the expired contract and existing disciplinary policies and practices without bargaining pursuant to Washington River Protection Solutions.
  4. Should an employer implement a last, best, and final offer during successor contract negotiations, it should hope it does not have to discipline anyone. An argument can be made, especially if the discipline provisions of the implemented contract did not change, that pursuant to Washington River Protection Solutions discipline is still being imposed under what at least was once a “binding agreement,” and pursuant to Anchorage Hilton an employer can implement just cause discipline upon impasse. It is possible, however, that Arlington Metals involved a successor contract instead of an initial contract. In such a case, an employer would be running a risk by failing to “bargain” over discipline once the successor contract was implemented.

In short, Arlington Metals (at least as it is described in Washington River Protection Solutions) makes no sense. That an employer could implement a proposal on discipline but must still bargain seems contrary to traditional principles of labor law—unless the General Counsel is backing away from Anchorage Hilton by claiming that “for cause” discipline is too discretionary to permit an employer to implement. But if that were true, then the right to discipline under the contract in Washington River Protection Solutions would have expired when the contract expired — no different than any other discretionary management right.

Time will tell where the Board eventually falls on these issues—assuming Alan Ritchey’s findings are even valid law. In the meantime, employer beware.