A National Labor Relations Board judge’s ruling that a Washington home care company was wrong to discipline employees in the interim period between union certification and contract approval without first bargaining underscores a growing divide in the application of a standard left in tatters by the high court’s Noel Canning decision.

Administrative Law Judge Ariel L. Sotolongo said in his Tuesday ruling that he was making the decision under a standard developed in 2012 in the NLRB’s Alan Ritchey ruling, which upended previous precedent that said that employers aren’t required to bargain with unions on disciplinary matters in that period between certification of a union and the formulation of a collective bargaining agreement.

The Alan Ritchey ruling and about 100 others were invalidated by the U.S. Supreme Court’s 2014 Noel Canning decision, which found that President Barack Obama’s board recess picks were unconstitutional.

Judge Sotolongo’s ruling in the suit between Kitsap Tenant Support Services Inc. and Washington Federation of State Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-CIO might be a practical one, but it’s not necessarily legally sound, according to Steven Suflas, managing partner at Ballard Spahr LLP’s Denver office.

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