Although the National Labor Relations Board’s 2012 decision in Alan Ritchey, Inc., 359 NLRB No. 40 was invalidated by the United Supreme Court in Noel Canning v. NLRB (2014)because of improper Board recess appointments, an NLRB Administrative Law Judge has decided to follow the “principles” contained in Alan Ritchey anyway, concluding that during the period between the union’s certification or recognition and the parties’ first collective bargaining agreement, an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline. Kitsap Tenant Support Services, Inc., JD(SF)-29-15 (July 28, 2015)

The decision by Judge Ariel L. Sotolongo involved an allegation that Kitsap Tenant Support Services, Inc. had violated the National Labor Relations Act by failing to bargain with the Washington Federation of State Employees over the disciplining of five employees prior to imposing the discipline. In March 2012, the union was certified as the collective bargaining representative of a group of the company’s employees. The company and the union began negotiating that year, but as of the date of the ALJ’s decision had not reached an agreement. In 2013 and 2014, the employer disciplined or discharged five employees without first notifying the union.

In Alan Ritchey, the NLRB reasoned that the imposition of individual discipline was “inherently discretionary” and therefore, it represented a mandatory topic of bargaining each time discipline took place. That decision was invalidated by Noel Canning but, unlike many other cases that also were invalidated, the Board (now with properly appointed members) has not reaffirmed its holding in that case. The NLRB’s website notes that, on May 23, 2013, the Alan Ritchey parties filed a “Joint Motion to Voluntarily Dismiss without Prejudice.” It appears, nevertheless, that the company complied with the Board’s decision. (The website notes that the case was closed because of “compliance.”) As a result, the Board will not have an opportunity to revisit, and likely reaffirm its Alan Ritchey decision.

Addressing the refusal to bargain over discipline in Kitsap, the Judge noted that “whether …[the company’s] conduct violates the Act depends entirely on whether the Board re-affirms the principles it announced in Alan Ritchey…” Nevertheless, the judge decided to apply theAlan Ritchey principles, finding “its reasoning persuasive,…and [that]…it is reasonable to assume its principles will be re-affirmed by the Board in the near future.” He therefore found that the company had violated the NLRA by suspending and/or terminating four of the disciplined employees without first bargaining with the union. The ALJ did not find a violation of the Act with respect to one of the employees based on his (the Judge’s) view that the company “had exigent reasons to discharge [that employee] without first bargaining with the union…”

In an unusual digression, the Judge also noted some personal concerns “regarding issues that [Alan Ritchey] is likely to raise,” including: 1) “employers’ [sic] disciplinary system…is essentially paralyzed until the parties have engaged in some pre-imposition bargaining”; 2) while bargaining over discipline is occurring, the employee(s) subject to discipline have to be kept on the payroll; 3) “[the union] is in the unusually advantageous position…of having the employer’s disciplinary system frozen in place while bargaining waits”; and 4) it is unclear how many bargaining sessions must take place to satisfy the pre-imposition requirement to bargain in good faith.

The ALJ’s decision in Kitsap is not the only agency opinion on the subject of pre-imposition bargaining over discipline that has been decided post-Noel Canning. At least two other ALJ decisions have reached a different result. Contrary to Kitsap, they concluded that with the removal of Alan Ritchey as binding precedent, they were bound to follow earlier NLRB holdings indicating that negotiation with a union was not necessary prior to imposing discipline in these circumstances.

Still, it is likely that, when presented with the appropriate case, the Board will issue a decision consistent with its holding in Alan Ritchey. Although Alan Ritchey applied only prospectively, there is no guarantee that a new decision on the issue also will be applied prospectively. This means that a prudent pre-collective bargaining agreement newly-organized employer should consider following Alan Ritchey before imposing discipline on employees.