ALJs Inconsistency in Following Cases Invalidated by Noel Canning Makes Life Difficult for Employers

We previously wrote about a case where an administrative law judge (ALJ) refused to rely on Alan Ritchey, a case invalidated by the Supreme Court’s decision in NLRB v. Noel Canning. [See, “ALJ Refuses to Follow Case Invalidated by Noel Canning”]. Alan Ritchey addressed whether a newly-elected union was entitled to notice and an opportunity to bargain before an employer disciplined union-represented employees. The ALJ in that decision recognized the limits of Noel Canning, and based his ruling on valid Board precedent rather than Alan Ritchey.

But not all ALJs are willing to play by the rules. A home healthcare company recently disciplined employees during the period between union certification and contract approval without first bargaining with the union. Five employees were either terminated, placed on administrative leave, or otherwise disciplined for various violations of the Company’s policies. In evaluating whether to uphold the discipline issued, the ALJ recognized that Alan Ritchey was not valid precedent but relied upon it anyway. The ALJ stated, “I have decided to place the “chips” so to speak, on the course of action I reasonably suspect the Board will ultimately adopt.” Really? Rather than follow the law, this ALJ openly disobeyed the law because he had a hunch that the Board would change the law at some point in the future?

This rogue ALJ ruled for the employer on the termination of an employee who had stolen and used a patient’s debit card, explaining that an employer has a right to exercise discipline without bargaining if there are “exigent circumstances” for doing so. However, he found that the same exigent circumstances did not exist for the disciplinary action taken against the other four employees who were disciplined for reasons such as failure to write client narratives, sleeping on the job, and missing work and refusing to work weekends. The Company had to notify and work with the Union when it disciplined these four employees.

We have become callous to not being able to rely on precedence when litigating cases before the NLRB. But, we used to find solace in knowing that an ALJ would follow the current state of the law. Not anymore. Here, it seems the ALJ carved out an exception for “exigent reasons” such as criminal activity, but it remains unclear how this will be interpreted. Unlike other decisions affected by Noel Canning, Alan Ritchey cannot simply be re-decided because it was closed after the employer voluntarily complied with the Board’s decision. It is likely that the Board will tackle this issue with another case given the varying interpretations.

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