ALJ Refuses to Follow Case Invalidated by Noel Canning

The United States Supreme Court delivered a blow to the NLRB with its 2014 NLRB v. Noel Canning decision in which it concluded that President Obama’s recess appointments to the National Labor Relations Board were invalid. These invalid appointments meant that the Board did not have a quorum of valid members when it issued many opinions. Many cases decided by the unconstitutionally appointed Board members were invalidated.

An administrative law judge recently had to decide whether to follow the rationale set forth in one of these invalidated cases or to rely on earlier Board decisions. At issue was a company’s decision to fire several employees while the company and the union negotiated its first contract. The union argued that the 2012 Board decision Alan Ritchey held that a newly selected union was entitled to notice and an opportunity to bargain before an employer took major disciplinary action against union-represented employees. The ALJ concluded that Alan Ritchey was invalidated and relied on previous Board precedent to make its decision that the company had no such bargaining obligation.

This case is just one example of the significance of the Supreme Court’s Noel Canning decision. It is reassuring to see that this ALJ recognized the limits Noel Canning placed on Alan Ritchey and instead opted to follow valid Board precedent to reach his ruling.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at