The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court.  By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season.  This onslaught of change likely will be hastened by the departure of Board Member Schiffer, whose term is set to expire December 16.  So, keep an eye out as of December 18 when the decisions are likely to be posted on the NLRB’s website.  Let’s not forget, too, the Board likely will vote on the ambush election rules in the coming days.

In the meantime, the NLRB Division of Advice has answered a question that has been the subject of many charges since the Board’s decision in Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012), where it held that in cases where a union has recently secured representational rights, the employer has a duty to bargain over discretionary aspects of discipline before imposition until an initial contract is reached.  The Board’s decision in Alan Ritchey was invalidated by the Supreme Court earlier this year, yet the agency still applies its rationale as if nothing happened to the underlying case.

If an employer in negotiations over an initial contract had an obligation to bargain over discretionary aspects of discipline, then would this same rationale apply to discipline issued during a contract hiatus?  The Division of Advice, in a memorandum released on November 18, 2014 has answered this question in the negative.

In Washington River Protection Solutions, Case 19-CA-125339, Advice Memorandum dated October 14, 2014, the employer, a Department of Energy contractor at a nuclear power plant, had adopted a collective bargaining agreement from its predecessor.  That contract expired while the parties were in negotiations for a successor agreement.  The employer had in place a written discipline policy that “generally requires progressive discipline” in that it “allows the Employer to skip steps in the progressive-discpline” if it deems the employee’s actions to constitute “extremely serious misconduct.”  Among the items listed in this category was “[d]eliberate disregard of safety rules or safety procedures.”

The case involved an employee electrician who discovered a pile of unknown white powder on the floor of the nuclear power plant.  Safety protocol required this powder to be tested.  While an employee of the Employer’s Industrial Hygiene Department leaned over to take a sample of the powder, the electrician repeatedly questioned her about her credentials, and, while she was testing the powder, the electrician kicked the powder into the air allegedly stating, “there, breathe it in.”  The employer deemed this action (which was denied by the electrician) to be extremely serious misconduct and the electrician was discharged.

The union filed a grievance and the parties discussed the matter at various stages of the procedure.  However, because the parties were between contracts when the discharge occurred, the employer was not legally required to arbitrate the grievance.  After denials of the grievance, the union filed a charge alleging that due to the fact the level of discipline was discretionary, under Alan Ritchey, the employer had an obligation to bargain over it prior to imposition.

The Division of Advice in a footnote first had to overcome the most obvious obstacle, that Alan Ritchey no longer is the law.  The Division of Advice relegated this to a footnote, stating that that although Alan Ritchey had been issued by an improperly constituted panel, “[i]t is the General Counsel’s position that Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”

In turning to the question of whether Alan Ritchey could apply to discretionary situations during a contract hiatus, Advice noted the rationale has “two primary policy rationales”:

First, the Board explained, requiring bargaining prior to imposing discipline precludes the ‘harm caused to the union’s effectiveness’ that would likely result if the bargaining occurred after discipline was imposed, and therefore prevents the employer from undermining a newly-certified union.  Second, requiring bargaining prior to imposing discipline permits the union to present additional evidence and arguments, including extenuating circumstances, for why the employer should give the employee a lesser form of punishment, and therefore will often lead to a ‘more accurate understanding of the facts, a more evenhanded and uniform application of rules and conduct, and…a better and fairer result….’

(footnotes omitted). In concluding that this same rationale did not apply to discretionary disciplinary actions taken during a contract hiatus, Advice had this to say:

However, once the parties have negotiated and agreed upon a discipline policy pursuant to a collective-bargaining agreement–even one that allows for broad employer discretion–the employer’s imposition of discipline under that policy does not represent the same threat to the bargaining relationship and should not be analyzed under the Alan Ritchey framework.  This is because when an employer issues discipline in accordance with a collectively-bargained policy, the union has already had the opportunity to weigh in on the matter, and therefore the exercise of discretion within the confines of a negotiated term or of the parties’ past practice is not a unilateral change.

(emphasis supplied).

Advice stressed that a different result might have occurred if there was evidence that the practice concerning disciplines had been changed by the employer.  It also noted the union had opportunity to provide input during the grievance procedure even if it could not submit the matter to arbitration.

So, for now, this interpretation will mean the Board will normally apply Alan Ritchey only to cases where the union and employer are in the initial stages of representation.  Advice left open the possibility that an employer could violate is obligation to bargain by changing the manner in which it metes out discipline during a hiatus period, which seems an open question if one is dealing with discretionary decisions.  Employers in a contract hiatus situation should ensure that everything is done to apply discipline just as it had during the term of the contract to avoid such allegations.