On March 11, 2016, a National Labor Relations Board (NLRB or Board) Administrative Law Judge (ALJ) ruled that a nursing home was not required to bargain with its newly-certified union prior to terminating two workers before it reached a first contract.

In Baptist Health Nursing and Rehabilitation Center, Inc., Nos. 03-CA-153365 and 03-CA-160251 (Baptist Health), the employer terminated two employees after its union was certified but before the parties executed a collective bargaining agreement. The NLRB General Counsel argued that the terminations violated the Board’s decision in Alan Ritchey, 359 NLRB No. 40 (2012), where the Board held that during the period after a union is recognized but before a first contract is in place, an employer must bargain with the union before disciplining unit employees.

Alan Ritchey overruled a contrary holding in Fresno Bee, 337 NLRB 1161 (2002), where the Board held that the employer had no obligation to notify its union and bargain before imposing discipline. However, in 2014 the U.S. Supreme Court invalidated three of President Obama’s recess appointments, which in turn viscerated the precedential value of Board decisions, including Alan Ritchey, decided without a constitutional quorum of three valid Board Members. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). The employer in Baptist Health argued that in light of Noel Canning, the ALJ should follow Fresno Bee, not Alan Ritchey.

ALJ Geoffrey Carter sided with Baptist Health, ruling that the employer did not have to negotiate with the union prior to imposing discipline during the interim period between certification and contract. ALJ Carter added that even if a properly-constituted Board panel reaffirmed the reasoning of Alan Ritchey, it would not apply to the employer here retroactively.

Baptist Health is at least the third ALJ decision in the past year addressing this issue. On May 19, 2015, the ALJ in High Flying Foods, No. 21-CA-135596, reached the same conclusion as ALJ Carter. The High Flying Foods ALJ found the reasoning in Alan Ritchey “compelling,” but denied the General Counsel’s request to apply it in the wake of Noel Canning. Two months later, on July 28, 2015, an ALJ in Kitsap Tenant Support Servs., Inc., No. 19-CA-108133, decided to follow Alan Ritchey even though it lacked precedential value, calling her decision a “gamble” that the Board would reaffirm Alan Ritchey if the Board revisited the issue presented.

With the status of the law unclear, employers have a dilemma when they wish to discipline bargaining unit employees between union recognition and first contract. Although employers have a good faith basis to impose discipline under these circumstances, Board ALJs are split on the issue. Also, though the NLRB applied its reasoning in Alan Ritchey prospectively only, it is unclear whether the Board will do so again.

For additional information about this decision and its impact on your business, please contact one of the authors of this alert or the Hogan Lovells lawyers with whom you work.