Manteca District Volunteer Ambulance Service, 375 NLRB No. 10, 32-CA-319646 (Published Board Decision)

The Board denied cross-motions for summary judgment filed by all three parties in a case alleging that an ambulance service unlawfully refused to bargain with and provide information to a union it had voluntarily recognized. Chairman Murphy and Member Mayer found that none of the parties had shown both the absence of genuine factual disputes and entitlement to judgment as a matter of law, noting that neither the General Counsel nor the Union had established that all the requested information was relevant under Board law, nor had the employer shown that none of it was relevant. As a result, the case was sent for an evidentiary hearing before an administrative law judge rather than being decided immediately.

Member Prouty dissented, arguing that the case presented no genuine factual disputes and that summary judgment should have been granted to the General Counsel and the Union. He laid out the undisputed history: the employer voluntarily recognized the union in April 2023 after a card-check certification, began providing bargaining-related information, but then refused further information requests and effectively withdrew recognition after an employee filed a decertification petition. A subsequent decertification election favored decertification, though the union's objections to that election remain pending.

Prouty explained that under longstanding Board precedent, the mere filing of a decertification petition does not suspend an employer's duty to bargain, whether the incumbent union was certified or voluntarily recognized. He cited Dresser Industries and RCA del Caribe for the principle that a decertification petition, requiring only 30 percent support, shows nothing more than minority disaffection and does not excuse a refusal to bargain. He rejected the employer's argument that the union's failure to secure a formal recognition bar under the now-rescinded Section 103.21 relieved it of its bargaining obligations, noting that obligation attaches immediately upon voluntary recognition and continues until the Board certifies an election loss. Prouty would have ordered the employer to furnish the requested information, to bargain with the union for six months to a year under an affirmative bargaining order, and to provide additional remedies including employee rights training and a mandatory meeting to read the notice.

Significant Cases Cited

• Dresser Industries, Inc., 264 NLRB 1088 (1982): Held that the filing of a decertification petition, by itself, does not suspend an employer's obligation to bargain with an incumbent union.

• RCA del Caribe, Inc., 262 NLRB 963 (1982): Established that a pending rival union or decertification petition does not automatically relieve an employer of its bargaining obligations.

• Brown & Connolly, Inc., 237 NLRB 271 (1978): Held that once voluntary recognition is granted to a majority union, withdrawing from that commitment before a reasonable time for bargaining has elapsed violates the employer's bargaining obligation.

• Industrial Power, 321 NLRB 816 (1996): Found that an employer violated Section 8(a)(5) and (1) by refusing to provide a voluntarily recognized union with requested, relevant information.

• Alpha Associates, 344 NLRB 782 (2005): Recognized that an employer's voluntary recognition of a union gives rise to a presumption of majority support.

Everglades Partners LLC D/B/a Keke's Breakfast Cafe, 375 NLRB No. 8, 12-CA-357963 (Published Board Decision)

The National Labor Relations Board granted a default judgment against Everglades Partners LLC, doing business as Keke's Breakfast Café, after the company failed to respond to allegations that it illegally fired an employee for speaking up about tip-reducing practices.

The case began when employee Sean Power raised concerns with coworkers and later with the company's corporate office that managers were serving customers' tables themselves, cutting into the tips servers could earn. About two weeks after Power reported the issue to corporate, the company removed him from the schedule and fired him.

Because Keke's Breakfast Café never filed a formal answer to the complaint despite multiple notices and a deadline extension, and offered no explanation for its silence, the Board deemed all the allegations true under its procedural rules. The Board noted that a company representing itself without a lawyer does not have automatic grounds to excuse a missed answer, citing prior precedent on that point.

Based on the undisputed facts, the Board found that Power's actions, discussing tipping concerns with fellow employees and then reporting them to management, counted as protected concerted activity under Section 7 of the NLRA. Firing him for that activity violated Section 8(a)(1) of the Act.

As a remedy, the Board ordered the company to offer Power reinstatement to his old job or an equivalent one, and to make him financially whole for lost wages and benefits, plus any other direct costs tied to the firing, such as job-search expenses. The company must also compensate Power for tax consequences of a lump-sum backpay award, remove any record of the firing from its files, and post a notice to employees describing their rights under the NLRA.

Two of the three Board members, Chairman Murphy and Member Mayer, noted they still have unresolved reservations about the added compensation remedy from Thryv, Inc., but agreed to apply it in this case absent a majority to overturn that precedent.

Significant Cases Cited

• Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Pro se status alone does not establish good cause for failing to file an answer to an NLRB complaint.

• Sage Professional Painting Co., 338 NLRB 1068 (2003): Reaffirmed that a respondent's lack of legal representation does not excuse a failure to file a timely answer.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established that backpay remedies must include compensation for all direct or foreseeable pecuniary harms, not just traditional lost wages.

• F.W. Woolworth Co., 90 NLRB 289 (1950): Set the standard method for computing backpay in NLRB remedial orders.

• Kentucky River Medical Center, 356 NLRB 6 (2010): Required that interest on backpay awards be compounded daily.

President and Fellows of Harvard College (Harvard University), 375 NLRB No. 5, 01-CA-354044 (Published Board Decision)

The Board affirmed an administrative law judge's finding that Harvard University violated the NLRA by refusing to turn over an outside consultant's investigative report to the union representing its campus police officers.

The dispute arose after a Harvard-employed detective, who is a member of the Harvard University Police Association, was interviewed by an outside firm, Edward Davis Company, about how her supervisors had overseen her investigation of a student sexual assault case. The union asked for a copy of the resulting report multiple times over several months, explaining that it needed the document because the detective had filed an internal complaint alleging sex discrimination by her supervisors, and because the union was considering a grievance under the collective-bargaining agreement's anti-discrimination clause. The union also offered to accept redactions protecting the identities of the alleged victim and the accused student.

Harvard refused to produce the report, telling the union only that the document was confidential and that there was no basis to believe it was relevant. At the hearing, the university's associate director of labor relations, who had made that determination, admitted he had never actually read the report himself, and no other Harvard witness had read it either.

The judge concluded, and the Board agreed, that the report was presumptively relevant because it concerned a bargaining-unit employee's job performance and how she was supervised, and that it was independently relevant to her pending discrimination complaint and to the union's potential grievance. The Board rejected Harvard's argument that the report wasn't relevant simply because it hadn't led to discipline against a unit member.

On confidentiality, the Board held that Harvard failed to meet its burden under the balancing framework from Detroit Edison Co. v. NLRB because it offered nothing more than an unsupported assertion of confidentiality, backed by a witness who had never read the document. The Board also found that even if a legitimate confidentiality interest existed, it would have been outweighed by the union's need for the information, particularly since Harvard never responded to the union's proposed accommodations, such as redacting identifying details or limiting distribution of the report.

The Board adopted the judge's order requiring Harvard to produce the report, while modifying the remedy to make clear that the university may redact personal identifying information about the alleged victim and the accused student, consistent with the union's original request. Harvard was also ordered to post a notice to employees describing the violation and its obligations going forward.

Significant Cases Cited

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Establishes that an employer's duty to bargain includes furnishing information relevant and necessary to a union's representational duties, including deciding whether to pursue a grievance.

• Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Sets out the balancing test used to weigh an employer's legitimate confidentiality interest in requested information against a union's need for that information.

• Northern Indiana Public Service Co., 347 NLRB 210 (2006): Holds that even where an employer shows a legitimate confidentiality interest outweighing the union's need, it cannot simply refuse to provide the information but must seek an accommodation.

• Palace Station Hotel & Casino, 368 NLRB No. 148 (2019): Holds that a party withholding information on confidentiality grounds forfeits that defense if it fails to offer to bargain over accommodations.

• Olean General Hospital, 363 NLRB 561 (2015): Found that a union's request for a survey and list of deficiencies was relevant to possible disciplinary matters and outweighed the employer's confidentiality interest.

Kroger Limited Partnership I D/B/a Kroger Delta Division, 375 NLRB No. 6, 15-CA-280676 (Published Board Decision)

The Board affirmed an administrative law judge's findings that a Kroger grocery chain division violated the NLRA by unilaterally ending dues checkoff for its employees and by unreasonably delaying in giving their union information it had requested about payroll problems.

The dispute arose after collective-bargaining agreements between Kroger's Delta Division and UFCW Local 2008, covering grocery and meat department workers in Arkansas, expired in 2020 and were extended informally until June 2021. After negotiations stalled over a proposed change to employee health benefits, Kroger told the union in July 2021 that it would stop deducting and forwarding union dues from employees' paychecks. Internal company communications showed that Kroger intended the move to pressure the union back to the bargaining table. The parties eventually reached new agreements in 2022 that restored dues checkoff.

The Board found this unilateral cutoff of dues checkoff unlawful under its decision in Valley Hospital Medical Center, which held that dues-checkoff provisions, unlike no-strike clauses, survive contract expiration and must be maintained until the parties bargain to impasse or reach a new agreement. Kroger argued it should be excused because it acted while an earlier, since-overturned Board decision permitted employers to stop dues checkoff after contract expiration, and because applying the new rule retroactively was unfair given the circumstances, including the threat of a strike and an internal agency memo recommending dismissal of a similar case. The Board rejected these arguments, agreeing with the judge that legal uncertainty around dues checkoff was already apparent when Kroger acted, so retroactive application of the newer rule did not create a manifest injustice. The Board also rejected Kroger's claims of impasse, contractual waiver, due process violations, and laches.

Separately, the Board upheld the finding that Kroger unreasonably delayed for months in giving the union a spreadsheet tracking employees' payroll errors, despite repeated and increasingly specific requests, even though Kroger had the document readily available and never explained the delay.

The Board ordered Kroger to reimburse the union for unpaid dues with interest, without recouping the money from employees, to turn over the requested payroll information, and to post a notice to employees at its Arkansas facilities. One Board member wrote separately to note reservations about requiring reimbursement for dues withheld before the law changed, while agreeing to apply existing precedent for consistency.

Significant Cases Cited

• Valley Hospital Medical Center, 371 NLRB No. 160 (2022): Held that dues-checkoff provisions survive the expiration of a collective-bargaining agreement and must be maintained until the parties bargain to a new agreement or overall impasse, overruling earlier precedent.

• NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer's unilateral change to terms and conditions of employment during a period when it must bargain with a union violates the duty to bargain in good faith.

• Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991): Held that certain terms and conditions of employment continue after a contract expires as terms imposed by law rather than as continuing contractual obligations.

• Lincoln Lutheran of Racine, 362 NLRB 1655 (2015): Held that an employer's obligation to collect and remit union dues continues after a collective-bargaining agreement expires, absent a clear and unmistakable waiver by the union.

• TDY Industries, LLC, 369 NLRB No. 128 (2020): Held that an employer must make a reasonable, good-faith effort to respond to a union's information request as promptly as circumstances allow, and that unreasonable delay violates the duty to bargain just as an outright refusal would.

Syntact, LLC, JD-46-26, 10-CA-371322 (ALJ Decision)

An administrative law judge recommended dismissal of an unfair labor practice complaint alleging that a small medical services company unlawfully fired an employee for engaging in protected concerted activity.

The case involved Syntact, LLC, a Georgia company that provides neurophysiological monitoring technicians to hospitals during surgery. The company's owner, Justin McLoughlin, had hired his college fraternity brother, Blake Pierce, in 2010 to work as a monitoring technician. In 2021, Pierce was moved to a salary and given the title "Supervising Neurophysiologist, Lead Clinical Manager/Trainer."

The company argued that Pierce's title made him a supervisor under the NLRA, which would have stripped him of the law's protections. The judge rejected that defense, finding that while Pierce trained new technicians and sometimes recommended when they were ready to work without supervision, the evidence did not show his recommendations directly affected any employee's pay or job status, a required showing under Board precedent such as Modesto Radiology Imaging and Harbor City Volunteer Ambulance Squad.

Turning to the merits, the judge found that Pierce engaged in protected concerted activity when he relayed coworkers' complaints about workload and scheduling to McLoughlin, including telling him a week before the discharge that several employees, including one who had threatened to quit, were unhappy. Because the case did not involve union activity, the judge applied the Wright Line burden-shifting framework used for Section 8(a)(3) cases to this Section 8(a)(1) discharge claim, noting that intent is relevant to this type of violation even though it does not require proof of union animus.

The judge concluded that the General Counsel failed to prove animus. Although Pierce was fired about a week after raising the complaints, the judge found the timing was explained by other factors: McLoughlin's long-standing reluctance to fire a close friend, the months of training needed to replace Pierce, and a New Year's Day incident in which Pierce refused an emergency assignment, which the judge found was the real reason for the discharge. The judge also declined to treat McLoughlin's statement that Pierce was "not happy" as coded language for protected activity, and rejected the General Counsel's request for an adverse inference based on the company's response to a subpoena, finding no evidence of intentional noncompliance. Because animus was not established, the complaint was dismissed.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing whether an employer's adverse action against an employee was motivated by protected activity.

• Modesto Radiology Imaging, Inc., 361 NLRB 888 (2014): Held that the authority to evaluate employees is not itself one of the statutory indicia of supervisory status.

• Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995): Found that employees who evaluated trainees and recommended advancement were not supervisors absent proof the recommendations directly changed pay or employment status.

• Willamette Industries, 341 NLRB 560 (2004): Set out the General Counsel's burden to show protected activity, employer knowledge, and animus to establish a motivating factor under Wright Line.

• Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Held that evidence of animus must also support a causal link between the protected activity and the adverse action.

Injexed Medbar, JD-47-26, 16-CA-327568 (ALJ Decision)

An administrative law judge has found that a Frisco and Plano, Texas medical spa violated the NLRA by barring employees from discussing their pay, disciplining an employee for doing so, and then firing her.

The case centered on Savannah Smith, a laser technician and esthetician at Injexed Medbar LLC, who in June 2023 spoke with a coworker, office manager Tali Wald, after Wald noticed that some of Smith's sales commissions were missing from her pay report. Smith raised the issue with the spa's owners, David and LaDelle Maez, and pressed to have it resolved before the next payroll ran. During a June 8 phone call about the matter, David became angry and raised his voice at Smith, who then stepped inside the spa so Wald could witness the exchange.

At a meeting the next day, David issued Smith two verbal warnings: one for discussing pay with a coworker, and another for allegedly adding her own name to commissions that weren't hers and for talking over management. During that same meeting, David repeatedly told Smith she was prohibited from discussing wages or commissions with other employees under company policy, even after Smith told him such discussions were protected by federal law. Four days later, on June 13, LaDelle fired Smith by text message, citing simply that she wasn't "the right fit."

The judge first addressed whether Wald counted as a supervisor under Section 2(11) of the Act, since that status would strip legal protection from her conversation with Smith. The judge found Respondent failed to prove Wald exercised genuine supervisory authority: she didn't hire, fire, discipline, or evaluate employees, and while she handled scheduling and helped input commissions, LaDelle retained ultimate control over those functions. As a result, Smith and Wald's wage discussion counted as activity between two coworkers.

The judge concluded that David's statements at the June 9 meeting amounted to the oral announcement of a rule barring wage discussions, which explicitly restricted rights protected by Section 7 of the Act and was therefore unlawful without further analysis, citing the Board's approach in Stericycle, Inc. The judge also found that Smith and Wald's exchange about the missing commissions, and Smith's follow-up efforts to resolve the issue with management, were protected concerted activity because wage discussions among employees are inherently concerted under longstanding Board precedent, and because Smith's later actions were a direct outgrowth of that initial conversation.

Applying the Board's Wright Line framework to the discipline and discharge, the judge found General Counsel had shown Smith engaged in protected activity, that Respondent knew about it, and that animus drove its actions, pointing to the timing of the discipline and firing, shifting and inconsistent explanations offered by David and LaDelle across the NLRB hearing and an earlier Texas Workforce Commission proceeding, and Respondent's failure to investigate its claims against Smith. The judge specifically discredited David and LaDelle's hearing testimony, noting it contradicted their own sworn statements to the state unemployment agency, where David testified that wage discussions were "absolutely" a reason for Smith's firing. Because Respondent's stated reasons were found pretextual, it failed to show it would have taken the same actions regardless of Smith's protected conduct.

The judge ordered Injexed Medbar to rescind its no-wage-discussion policy, reinstate Smith, make her whole for lost pay and other financial harms with interest, remove references to the unlawful discipline and discharge from her file, and post a notice to employees describing their rights under the Act.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for evaluating whether an employer's adverse action against an employee was unlawfully motivated by protected activity.

• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Holds that the party asserting an individual is a statutory supervisor bears the burden of proving that status.

• Oakwood Healthcare, 348 NLRB 686 (2006): Establishes that supervisory status depends on the authority an individual actually exercises, not their job title, and requires the use of independent judgment.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Holds that a work rule is unlawful without further analysis when it explicitly restricts activity protected by Section 7 of the Act.

• Fresh & Easy Neighborhood Market, Inc., 356 NLRB 588 (2011): Found that an employer unlawfully promulgated a rule against discussing protected topics when a manager orally told an employee on separate occasions that such discussions were not allowed.

Starbucks Corporation, 375 NLRB No. 7, 19-RC-295849 (Published Board Decision)

The Board ruled on a dispute stemming from a mail-ballot election among baristas and shift supervisors at a Seattle Starbucks store, where the vote ended in a 4-4 tie with two challenged ballots that would decide the outcome.

The challenged ballots belonged to two employees who, instead of returning their mail ballots through the U.S. Postal Service as instructed, personally delivered them to the Regional Office on the day ballots were due. One employee had a third party leave the sealed ballot in a drop box at the office, while the other handed his ballot directly to an employee there. The Employer challenged both ballots on the grounds that they lacked postmarks and had not been mailed as the voting instructions required.

A Board majority made up of Chairman Murphy and Member Mayer sided with the Employer, reversing the Regional Director’s decision to count the ballots. The majority found that the notice of election and accompanying voting instructions clearly and unambiguously directed voters to return their ballots by mail, with no allowance for hand delivery, and noted that the Board has no procedures permitting ballots to be dropped off in person at a Regional Office. Because the two voters chose not to follow those instructions, the majority concluded their ballots could not be counted, regardless of whether the ballots themselves were secure and unaltered.

The majority separately upheld the Regional Director’s rejection of the Employer’s objections to the election, which had argued that Region 19 staff engaged in misconduct by accepting the ballots and that the union had unlawfully solicited hand delivery. The Board found no evidence that regional staff coordinated with the union or that the union directed either employee’s actions, and held that accepting the improperly delivered ballots did not cast doubt on the fairness of the election, especially since both ballots were flagged as challenged and ultimately excluded.

With the two contested ballots voided, the final tally remained tied at four votes for the union and four against, meaning the union failed to secure a majority. The Board therefore certified that the union is not the exclusive representative of the bargaining unit.

Member Prouty dissented in part, agreeing that the Employer’s objections should be overruled but arguing that the two hand-delivered ballots should have been counted. He noted that no Board rule or instruction expressly prohibited hand delivery, that both voters had otherwise fully complied with ballot-completion procedures, and that the ballots’ authenticity was undisputed. He warned that disenfranchising the two voters was unnecessary to protect election integrity and urged the General Counsel to issue clear guidance allowing hand delivery of mail ballots going forward.

Significant Cases Cited

• Polymers, Inc., 174 NLRB 282 (1969): Established that a party challenging an election based on Board procedural deviations must show conduct raising reasonable doubt about the fairness and validity of the election, not merely a failure to achieve absolute compliance with Board rules.

• Aspirus Keweenaw, 370 NLRB No. 45 (2020): Set the framework the Regional Director relied on in deciding to direct a mail-ballot election.

• Starbucks Corp., 371 NLRB No. 154 (2022): Modified the Aspirus mail-ballot framework but upheld the Regional Director’s decision to direct a mail-ballot election under the prior standard.

• Fessler & Bowman, Inc., 341 NLRB 932 (2004): Held that a party’s collection or handling of voters’ mail ballots is objectionable conduct that can be grounds for setting aside an election.

• Thompson Roofing, Inc., 291 NLRB 743 (1988): Voided a mail ballot where the voter failed to follow election instructions by printing rather than signing his name on the ballot envelope.

Sea World of Florida LLC D/B/a Discovery Cove, 375 NLRB No. 4, 12-CA-368374 (Published Board Decision)

The Board granted the General Counsel's motion for summary judgment against Sea World of Florida LLC, doing business as Discovery Cove, finding the company unlawfully refused to bargain with the International Union of Operating Engineers, Local 30, after the union was certified as the bargaining representative for a unit of divers and dive supervisors at the company's Orlando parks.

The company had admitted refusing to bargain but argued the certification was invalid because it believed the dive supervisors in the unit were actually supervisors under Section 2(11) of the NLRA and should have been excluded. That argument had already been raised and rejected during the underlying representation proceeding. The company claimed it had newly discovered evidence supporting the supervisors' exempt status, but the Board found it failed to show the evidence was previously unavailable or would have changed the outcome, noting much of it postdated the representation hearing entirely. Because the issue had already been fully litigated and no new evidence or special circumstances justified reopening the record, the Board held the company could not relitigate the unit's composition in this unfair labor practice case.

The Board also rejected a series of constitutional and procedural defenses the company raised, including challenges based on removal protections for Board members and administrative law judges, Fifth and Seventh Amendment claims, separation-of-powers arguments, and various other boilerplate defenses, finding the company offered no evidence or explanation to support any of them.

On the information request front, the union had asked for extensive data covering wages, performance reviews, schedules, benefits, discipline records, and more. The company refused to provide any of it, arguing it had no obligation to do so. The Board reaffirmed that information about unit employees' terms and conditions of employment is presumptively relevant to collective bargaining and must be produced, and since the company offered no basis to rebut that presumption, its refusal violated the NLRA.

The Board ordered the company to bargain with the union on request, furnish the requested information, and post a notice to employees. It also specified that the union's certification year will begin running only once the company actually starts bargaining in good faith, since the delay caused by the unlawful refusal deprived employees of representation during that period.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): A party generally cannot relitigate representation issues in a subsequent unfair labor practice proceeding if those issues were or could have been raised in the representation case.

• Manhattan Center Studios, 357 NLRB 1677 (2011): Sets the standard for admitting newly discovered evidence after a representation record has closed, requiring proof the evidence existed but was unavailable earlier, would have changed the result, and was raised promptly.

• Metro Health Foundation, Inc., 338 NLRB 802 (2003): Information concerning unit employees' terms and conditions of employment is presumptively relevant to collective bargaining and must be furnished on request.

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The Supreme Court rejected the argument that the NLRA's adjudicatory scheme violates the Seventh Amendment right to a jury trial.

• Schnurmacher Nursing Home, 327 NLRB 253 (1998): Evidence arising after a representation hearing concludes does not qualify as newly discovered evidence or a special circumstance warranting reopening the record.

DVA Renal Healthcare, Inc., D/B/a DaVita Vallejo, 375 NLRB No. 2, 20-RC-346835 (Published Board Decision)

The Board denied an employer's requests for review of a regional director's decision directing an election and separately certifying a union as bargaining representative for employees at a single dialysis clinic, finding neither request raised substantial issues warranting review.

On the unit scope question, the Board agreed with the regional director that the employer failed to rebut the presumption that a single healthcare facility is an appropriate bargaining unit. The Board reiterated that a party challenging that presumption bears a heavy burden of showing integration so substantial that it erases the separate identity of the facility. While the Board departed from some of the regional director's reasoning, including her findings on differences between clinics offering home dialysis and those that do not, and concluded that evidence of staff interchange between clinics was neutral rather than favoring a broader unit, it still found the employer's overall showing insufficient. The Board was also critical of exhibits the employer relied on to demonstrate interchange, noting discrepancies between figures presented at the hearing and the underlying data.

The Board also rejected the employer's argument that the regional director should have separately analyzed whether the petitioned-for unit was readily identifiable and shared an internal community of interest under the Board's framework in American Steel Construction. It explained that this analysis applies to disputes over whether specific job classifications belong within a unit, not to disputes over whether additional facilities must be added to the unit, which was the only issue the employer had actually raised and litigated. Because the employer never identified specific classifications it believed should be excluded from the unit on community-of-interest grounds, either in its statement of position or at the hearing, the Board found that issue had not been preserved. The Board distinguished this case from Allen Health Care Services, explaining that unlike the employer there, which took no position on the appropriate unit, this employer articulated a specific position, so the regional director was not required to solicit additional evidence beyond what the parties presented.

Finally, regarding the employer's election objections, the Board agreed that the employer's offer of proof failed to establish a prima facie case of objectionable conduct related to alleged videotaping of employees, though it did not adopt the regional director's additional commentary on the issue. Member Mayer dissented in part, stating he would have granted review of the objection because the circumstances described, including the union's alleged video recording of employees at a related facility and its circulation in a group chat, raised material factual questions about whether the conduct could have chilled protected activity that warranted a hearing.

Significant Cases Cited

• Mercy Sacramento Hospital, 344 NLRB 790 (2005): A party seeking to rebut the single-facility presumption in healthcare must show integration so substantial that it negates the separate identity of the facility.

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Set out the framework for determining whether a petitioned-for unit is readily identifiable and shares an internal community of interest, applicable to disputes over which classifications belong in a unit.

• Allen Health Care Services, 332 NLRB 1308 (2000): The Board must have some record evidence to support a unit determination, particularly where a party has not taken a position on the appropriate unit.

• New Britain Transportation Co., 330 NLRB 397 (1999): Filling staffing vacancies with volunteers is less persuasive evidence of interchange between facilities.

• Ikea Distribution Services, 370 NLRB No. 109 (2021): Addressed when regional directors must solicit evidence on unit issues not actively raised and litigated at the preelection hearing.

Hale Construction, Inc., 375 NLRB No. 3, 32-CA-373919 (Published Board Decision)

The Board granted the General Counsel's motion for summary judgment against Hale Construction, Inc., finding that the company unlawfully refused to bargain with Bricklayers, Tilesetters and Allied Craft Workers, Local 3, after the union was certified as the exclusive bargaining representative of the company's bricklayers.

Hale Construction had admitted refusing to bargain but argued it had no duty to do so because the Regional Director erred in ordering a mail ballot election rather than a manual one, an issue the company had already raised and lost in the underlying representation case. The Board held that this refusal-to-bargain proceeding was not the proper venue to relitigate issues already decided in the representation case, since Hale Construction offered no newly discovered evidence and no special circumstances justifying a second look. Citing Pittsburgh Plate Glass Co. v. NLRB, the Board found no litigable issue remained and granted summary judgment.

The Board also rejected constitutional arguments Hale Construction raised in its answer and response to the show-cause order. It found no Seventh Amendment jury-trial right applies to Board proceedings, and it rejected the company's Article II removal-power challenge because Hale Construction failed to show any actual harm from the removal protections at issue.

Having found the company violated Section 8(a)(5) and (1) of the NLRA, the Board ordered Hale Construction to bargain with the union on request and to post a remedial notice. It denied requests from the General Counsel and the union for additional remedies, concluding traditional remedies were sufficient. Member Prouty dissented in part, stating he would have granted make-whole relief for economic harm, a notice-reading requirement with prior distribution to employees, and a bargaining schedule, consistent with his prior separate opinions in other cases.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): A party cannot relitigate in a subsequent unfair labor practice proceeding representation issues that were or could have been raised in the underlying representation case, absent newly discovered evidence or special circumstances.

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The NLRA does not implicate the Seventh Amendment right to a jury trial.

• Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Congress may assign adjudication of public rights to an administrative agency without violating the Seventh Amendment.

• Collins v. Yellen, 594 U.S. 220 (2021): A party challenging a removal restriction as unconstitutional must show that it caused actual harm.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins when an employer actually starts bargaining in good faith, not from the date of certification, when the employer has unlawfully refused to bargain.

Real You Electrolysis, 19-RC-387648 (Regional Election Decision)

A regional director for the National Labor Relations Board ruled that a single-facility bargaining unit of electrologists at Real You Electrolysis's Vancouver, Washington location is appropriate, rejecting the notion that the unit must also include employees at the company's separate Lakewood, Washington facility.

The Industrial Workers of the World, Portland GMB, petitioned to represent electrologists at the Vancouver location only. Because the employer failed to timely file a position statement, it was precluded from contesting the scope of the unit at hearing, though the regional director still independently assessed whether the petitioned-for unit was appropriate.

Applying the Board's traditional test for single-facility units, the decision examined five factors: centralized control over labor relations, similarity of employee skills and working conditions, employee interchange between locations, geographic distance, and bargaining history. The two facilities, about 120 miles apart, share centralized hiring, firing, and payroll functions handled by a director of operations, and electrologists at both locations receive identical training, pay, and benefits. However, the record showed almost no interchange between the two sites: only one voluntary permanent transfer of an employee, and no evidence of employees regularly performing work at the other location. Training trips to Vancouver by Lakewood employees did not count as interchange because those employees were not performing regular work there.

The regional director concluded that the lack of interchange and the substantial geographic distance outweighed the centralized labor relations and shared job functions, finding the single-facility presumption in favor of a Vancouver-only unit was not rebutted. There was no bargaining history, which was treated as a neutral factor. The decision directs an election among Vancouver electrologists, scheduled for August 4, 2026.

Significant Cases Cited

• Trane, 339 NLRB 866 (2003): Sets out the Board's standard multi-factor test for evaluating whether a single-facility unit is appropriate, including how geographic distance interacts with interchange and centralization.

• J & L Plate, Inc., 310 NLRB 429 (1993): Establishes the presumption that a single-facility unit is appropriate absent evidence of effective merger or functional integration.

• Hilander Foods, 348 NLRB 1200 (2006): Holds that centralized control over some labor relations policies does not defeat a single-facility unit where local supervisors retain meaningful day-to-day authority over employees.

• New Britain Transportation Co., 330 NLRB 397 (1999): Explains that employee interchange must involve a significant portion of the workforce and actual supervision at the other location to rebut the single-facility presumption.

• Dayton Transport Corp., 270 NLRB 1114 (1984): Found substantial interchange sufficient to defeat a single-facility unit where hundreds of temporary transfers occurred among terminals with direct supervision at the receiving location.

Boeing LAX / Millennium Space Systems, Inc., 31-RC-374505 (Unpublished Board Decision)

The Board denied a union's request for review of a Regional Director's decision dismissing a representation petition, finding the petition did not raise substantial issues warranting review.

The dispute centered on whether a collective-bargaining agreement's extension and modification could serve as a contract bar to the petition. The petitioning union argued that a ratification provision found in Supplemental Agreement 36 applied to the extension and modification, meaning the contract could not bar the petition unless it had been ratified by employees. The Board rejected this argument, reaffirming that ratification only operates as a prerequisite to a contract serving as a bar when the contract itself expressly makes ratification a condition precedent to its validity. The Board found that the ratification language in Supplemental Agreement 36 did not apply to the extension and modification at issue, so ratification was not required for the agreement to bar the petition.

One Board member wrote separately to note that even if the ratification language were read to apply, it concerned only employees' right to vote on a future integrated agreement to be negotiated once the Millennium Space Systems employees are combined into a single unit with Boeing Company employees, a combination that had not yet occurred when the employer and the intervenor executed the extension and modification.

The Board also corrected a procedural point in the Regional Director's decision, clarifying that requests for review of petition dismissals based on a determination that no further proceedings are warranted are governed by Section 102.71(a) of the Board's Rules and Regulations, not Section 102.67 as the Regional Director had stated.

Significant Cases Cited

• Appalachian Shale Products Co., 121 NLRB 1160 (1958): A contract bars a representation petition unless ratification is expressly made a condition precedent to the contract's validity by the contract's own terms.

Hospital Menonita De Guayama, Inc. V. NLRB, 22-1163 (DC Circuit)

The D.C. Circuit, reconsidering its own prior decision after the Supreme Court vacated it in light of Loper Bright Enterprises v. Raimondo, struck down the National Labor Relations Board's "successor bar" rule as inconsistent with the NLRA.

The successor bar, adopted by the Board in UGL-UNICCO Service Co., bars any challenge to an incumbent union's majority status for up to one year after a business changes ownership, forcing a new employer to recognize and bargain with the union even if it has lost majority support among employees. The court had previously upheld the rule in Hospital Menonita I by deferring to the Board's judgment that the bar was a reasonable policy choice, relying heavily on the First Circuit's Chevron-based reasoning in NLRB v. Lily Transportation Corp. After the Supreme Court granted certiorari, vacated that judgment, and remanded for reconsideration in light of Loper Bright, the panel concluded it could no longer defer to the Board's interpretation of its own statutory authority and had to decide independently whether the bar was lawful.

Applying that independent review, the majority held the successor bar cannot be squared with the statute's text. Section 7 gives employees an unqualified right to choose whether and how to bargain collectively, and Section 9(a) conditions a union's status as exclusive representative on actual majority support. The bar overrides both guarantees by creating an irrebuttable presumption of majority support that no employer, employee, or rival union can challenge. The court also noted that Congress provided only one specific bar on such challenges, the one-year election bar following a certified election under Section 9(c)(3), suggesting the Board lacked authority to invent an additional, broader bar tied to successorship rather than certification.

The court rejected the Board's arguments that the rule was justified by its general policymaking authority, by industrial stability concerns, or by the Supreme Court's decision in Auciello Iron Works, Inc. v. NLRB, which addressed a narrower and rebuttable "contract bar" rather than an absolute prohibition on challenges. Because the Board had refused to consider the hospital's evidence that a majority of employees in each bargaining unit rejected the union, the court granted the hospital's petition for review, denied the Board's cross-petition for enforcement, and remanded the case.

A dissenting judge argued that the original panel's decision did not actually rest on Chevron deference but instead reflected the NLRA's own delegation of broad policymaking discretion to the Board, a principle he said Loper Bright preserved rather than eliminated, and that the original decision should therefore have been reinstated without further revision.

Significant Cases Cited

• Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024): Overruled Chevron deference, holding courts must independently interpret statutes rather than defer to agency interpretations of their own statutory authority.

• International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961): Held that an employer violates Section 7 rights by recognizing and bargaining with a union that lacks majority employee support.

• NLRB v. Lily Transportation Corp., 853 F.3d 31 (1st Cir. 2017): Upheld the Board's successor bar rule by applying Chevron deference, reasoning it was a permissible construction of the NLRA.

• Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996): Upheld the Board's rebuttable "contract bar" presumption of union majority support, which could be overcome by evidence the union actually lacked majority support.

• Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): Held that a Board rule is entitled to deference from courts only if it is rational and consistent with the Act.

Enright Seeding, Inc., 374 NLRB No. 142, 25-CA-210670 (Published Board Decision)

The Board dismissed a complaint alleging that a construction-industry subcontractor unlawfully refused to furnish information to a union, ruling on remand that the union's charge was untimely under Section 10(b) of the NLRA.

The case returned to the Board after the Eighth Circuit rejected its earlier finding that the employer, Enright Seeding, Inc., had a Section 9(a) bargaining relationship with the union, International Union of Operating Engineers, Local 150. The court held that contract language alone, without evidence that a majority of employees had actually designated the union as their representative, could not establish 9(a) status, and it remanded for the Board to consider whether the employer's obligations instead arose under Section 8(f), a provision unique to the construction industry that allows bargaining relationships without proof of majority support.

On remand, the Board found it did not need to resolve the Section 8(f) question because the union's underlying unfair labor practice charge was filed too late. The Board explained that when an employer completely repudiates a contract, the union must file a charge within six months of receiving clear and unequivocal notice of that repudiation, or the charge is time-barred even as to later contract violations. Here, the owner of Enright Seeding told a union organizer in August 2016 that the company had no contract with the union, and he maintained that position consistently over the following months, refusing to meet with union representatives or respond to grievance proceedings. The Board found this constituted clear and unequivocal notice of repudiation more than six months before the union filed its November 2017 charge, making the charge untimely regardless of whether the repudiation itself was lawful under Section 8(f) rules.

The Board rejected arguments from the General Counsel and the union that the employer remained bound because it could not lawfully repudiate an 8(f) agreement mid-term, explaining that the relevant question was not the lawfulness of the repudiation but whether the charge over it was timely filed. It also found irrelevant the employer's later entry into a settlement agreement, since that decision reflected litigation strategy rather than any ambiguity about its earlier repudiation.

Significant Cases Cited

• Staunton Fuel & Material, 335 NLRB 717 (2001): Held that specific contract language can establish a union's Section 9(a) status if certain minimum requirements are met.

• NLRB v. Enright Seeding, Inc., 109 F.4th 1012 (8th Cir. 2024): Held that contract language alone cannot establish a Section 9(a) relationship without actual evidence of majority employee support.

• Vallow Floor Coverings, 335 NLRB 20 (2001): Held that the Section 10(b) limitations period for a repudiation charge begins running when the union receives clear and unequivocal notice of the repudiation.

• A & L Underground, 302 NLRB 467 (1991): Held that the burden of proving clear and unequivocal notice of repudiation rests on the employer, and that the timeliness defense does not apply where the employer's conduct was ambiguous.

• John Deklewa & Sons, 282 NLRB 1375 (1987): Established that Section 8(f) allows construction-industry employers and unions to form bargaining relationships without proof of majority support, and that such agreements cannot be repudiated before expiration absent a decertification election.

ESCNC D/B/a Eye Surgery Center of Northern California, 375 NLRB No. 1, 20-CA-358895 (Published Board Decision)

The Board granted the General Counsel's motion for summary judgment against ESCNC, LLC d/b/a Surgery Center of Northern California, finding the company unlawfully refused to bargain with Teamsters Local No. 150 after the union was certified as the exclusive bargaining representative of a unit of nurses, medical assistants, and other clinical and administrative staff at the company's Roseville facility.

The company had admitted refusing to recognize and bargain with the union and refusing to turn over requested information, but argued the certification itself was invalid because the underlying representation proceeding denied it due process and because the Board misapplied the law on community of interest and supervisory status under Section 2(11). The Board rejected these arguments, explaining that issues already raised and decided in a representation case cannot be relitigated in a subsequent unfair labor practice proceeding absent newly discovered evidence or special circumstances, neither of which the company offered. The Board found no basis to depart from that rule under the narrow exceptions recognized in Sub-Zero Freezer Co. and St. Francis Hospital.

The Board also rejected a series of constitutional and procedural affirmative defenses as unsupported bare assertions, including claims that Board proceedings violate the Fifth and Seventh Amendments, that removal protections for Board members and administrative law judges are unconstitutional, and that the agency's combined investigative, prosecutorial, and adjudicative functions violate due process. On the removal-protection argument, the Board noted the company had not shown any harm resulting from those protections, consistent with Collins v. Yellen.

On the merits, the Board found that most of the information the union requested, including personnel records, wage and benefit plans, job descriptions, and disciplinary records, was presumptively relevant to the union's representational duties and had to be furnished. It denied summary judgment only as to the union's request for employees' Social Security numbers, since that information is not presumptively relevant and the union had not shown why it needed it, and remanded that narrow issue to the Regional Director.

The Board ordered the company to bargain with the union on request, furnish the requested information (excluding Social Security numbers), and post a remedial notice to employees. It also extended the union's certification year to begin running from the date bargaining actually starts in good faith, consistent with Mar-Jac Poultry Co.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that issues litigated or litigable in a representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.

• Sub-Zero Freezer Co., 271 NLRB 47 (1984): One of a limited set of cases where the Board departed from the rule against relitigating representation issues in a refusal-to-bargain case.

• St. Francis Hospital, 271 NLRB 948 (1984): Another limited exception where the Board reconsidered representation findings in a certification-testing case.

• Collins v. Yellen, 594 U.S. 220 (2021): Held that a party challenging an officer's removal protections must show resulting harm to obtain relief.

• Maple View Manor, 320 NLRB 1149 (1996): Held that employee Social Security numbers are not presumptively relevant and a union must separately establish their relevance to obtain them.

Norwich University - The Military College of Vermont, 03-RC-366072 (Unpublished Board Decision)

The Board granted the employer's request for review on the narrow question of whether the petitioned-for unit was appropriate under current precedent, inviting briefing on that issue while denying review in all other respects.

Applying the three-part test from American Steel Construction, Inc., the Board considers whether a petitioned-for group shares an internal community of interest, is readily identifiable, and is sufficiently distinct from excluded employees. Chairman Murphy and Member Mayer noted they did not participate in that decision and took no position on whether it was correctly decided, but agreed to apply it for institutional reasons.

The Board separately denied review of the Regional Director's decision overruling the employer's election objections, finding no substantial issue warranting review. The employer had argued that a Board agent's conduct during the election reflected bias. The Board clarified that such claims are evaluated not under the Polymers, Inc. standard but under the more particularized test from Athbro Precision Engineering Corp., which asks whether the agent's conduct tends to destroy confidence in the Board's election process or could reasonably be seen as impairing the integrity of election standards. Applying that standard, the Board found that a Board agent's inaccurate verbal characterization of the preelection hearing as involving "no issue," along with an email describing only one of the legal issues to be addressed at the hearing, did not amount to objectionable conduct. The Board cited Indeck Energy Solutions and S. Lichtenberg & Co. in support of this conclusion. The employer's motion for extraordinary relief was denied as moot.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the current test for determining whether a petitioned-for subdivision of employees constitutes an appropriate unit, focusing on community of interest, identifiability, and distinctness.

• Athbro Precision Engineering Corp., 166 NLRB 966 (1967): Held that an election will be set aside for Board agent misconduct only when the conduct tends to destroy confidence in the Board's election process or could reasonably be seen as impairing election standards.

• Polymers, Inc., 174 NLRB 282 (1969): Set out a general standard for evaluating objections to elections, later distinguished from the more particularized Athbro standard for Board agent bias claims.

• Indeck Energy Solutions, 316 NLRB 300 (1995): Cited in support of finding that a Board agent's conduct did not rise to the level of objectionable interference with an election.

• S. Lichtenberg & Co., 296 NLRB 1302 (1989): Found that a Board agent's public remarks about a pending complaint against the employer shortly before an election were not objectionable under the Athbro standard.

Auto-Chlor System of Washington, Inc., 19-RC-357182 (Unpublished Board Decision)

The Board denied the employer's request to review a regional director's decision directing an election in a unit that excluded certain production classifications from a mixed group of sales, service, and administrative employees.

The Board found that although the regional director had not properly applied American Steel Construction, Inc., the correct outcome was still reached. Under that standard, employees can be excluded from a petitioned-for unit unless they share an "overwhelming community of interest" with the unit employees. Here, the excluded production classifications, who mix and handle chemicals, were organizationally distinct from the directed unit and had more regular contact with each other than with unit employees. The Board disagreed with the regional director's finding that there was no interchange between the groups, noting that some interchange existed in the record, but concluded that because most of it was permanent rather than temporary, it deserved only limited weight. The Board also found that similarities in training and skills between the groups were modest, even though all employees receive on-the-job training and no specific licenses are required.

The Board acknowledged evidence of functional integration and overlapping wages and working conditions between the groups, but concluded that, taken together, the differences between the production classifications and the directed unit amounted to more than "only minimal differences" and provided a rational basis for the regional director's exclusion decision. The Board also declined to rely on the regional director's characterization of interchange as a "critical" factor, clarifying that Executive Resources Associates addressed a different question, rebuttal of a presumptively appropriate single-facility unit, and did not establish interchange as inherently more important than other community-of-interest factors.

Chairman Murphy and Member Mayer noted they had not participated in American Steel Construction and expressed no view on whether it was correctly decided, applying it here only for institutional consistency. Member Mayer dissented in part, arguing that review should have been granted to examine whether the relevant factors, including shared terms of employment, functional integration, interchange, departmental organization, skills and training, contact, and supervision, weighed against the unit as configured by the regional director.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established that classifications may be excluded from an otherwise appropriate petitioned-for unit only if they share an "overwhelming community of interest" with the included employees.

• Executive Resources Associates, 301 NLRB 400 (1991): Addressed whether a party had rebutted the presumptive appropriateness of a petitioned-for single-facility unit, a distinct question from overwhelming community of interest analysis.

Starbucks Corporation, 374 NLRB No. 141, 10-RC-369790 (Published Board Decision)

The Board denied an employer's request for review of a regional director's decision to hold a representation petition in abeyance under the Board's blocking-charge policy at a Starbucks store in the Tenth Region.

The employer had filed a petition seeking an election, but the regional director paused processing after the union alleged the employer fired a lead organizer just hours before the petition was filed. Under Section 103.20(b) of the Board's Rules and Regulations, a regional director must hold a petition in abeyance, absent special circumstances, if the offer of proof describes conduct that would interfere with employee free choice in an election. The Board found that a discharge of this kind, if proven, meets that standard, even though the regional director's letter had used the word "could" rather than "would" in describing the standard.

The Board limited its review to whether the regional director abused his discretion based on the information available at the time of the blocking decision, and found no such abuse. It noted that the employer had not identified any special circumstances justifying processing the petition despite the pending unfair labor practice charge. The denial was without prejudice to the employer later asking the regional director to unblock the petition if new developments occur after the blocking letter.

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Significant Cases Cited

• Excel Case Ready, 334 NLRB 4 (2001): Held that discharging union supporters, especially union leaders, is among the most flagrant forms of interference with employees' Section 7 rights due to its long-term coercive impact.

Mercedes-Benz Manhattan Inc., 02-RD-367095 (Unpublished Board Decision)

The Board denied both the union petitioner's and the employer's requests for review of an acting regional director's decision to hold a decertification petition in abeyance under the Board's blocking-charge rule. The Board found the requests raised no substantial issues warranting review, since the regional director had acted consistently with Section 103.20 of the Board's Rules and Regulations, which governs how pending unfair labor practice charges can pause processing of a representation petition.

Chairman Murphy and Member Mayer noted they were applying existing blocking-charge law for institutional reasons and took no position on whether that policy was correctly decided. Member Mayer added separately that current procedure requires regional directors to keep reassessing, as a charge and petition move forward, whether the charge still blocks the petition, and that a director may resume processing the petition if special circumstances arise or if employee free choice becomes possible despite pending unfair labor practice charges. He suggested the Board should consider whether its blocking-charge policy adequately accounts for how much time has passed since a petition was filed, and urged that unfair labor practice cases blocking an election be given priority.

SWCA, Incorporated D/B/a SWCA Environmental Consultants, 27-RM-359491 (Unpublished Board Decision)

The Board denied the Employer's request for review of a Regional Director's decision directing an election and certifying the Union as representative, finding the petition raised no substantial issues warranting review.

The Employer had argued that Assistant Project Archaeologists, Assistant Staff Archaeologists, and Staff Archaeologists were supervisors under Section 2(11) of the NLRA because they possessed authority to hire or effectively recommend hire. The Board agreed with the Regional Director's conclusion that the Employer failed to meet its burden, though it declined to adopt his reasoning that no evidence showed employees in these classifications participate in hiring at all. Instead, the Board found that even considering the Employer's evidence of historical and occasional phone screening of applicants, the Employer failed to show that these employees exercised independent judgment in hiring or recommending hire.

Member Mayer wrote separately to address a procedural issue. The Union had filed a Statement of Position (SOP) in this case after previously demanding recognition for the same unit in an earlier case, disclaiming interest after failing to timely serve its SOP there, then renewing its recognition demand nine days later. Member Mayer agreed the Regional Director correctly declined to preclude the Union from litigating the issues, since there was no evidence the Union had genuinely lost interest in representing the employees in the interim. He characterized the sequence as a maneuver to sidestep the preclusive effect that normally follows an untimely SOP, comparing it to a similar pattern in Detroit Education & Research. Member Mayer suggested the Board's rules should be amended to give regional directors discretion to accept late-filed SOPs where no prejudice is shown, noting the Board's general preference for resolving cases on the merits rather than by default.

Significant Cases Cited

• Detroit Education & Research, 373 NLRB No. 15 (2024): A union sought dismissal of its petition after failing to timely serve its SOP, then refiled the petition the same day, illustrating a similar procedural maneuver to avoid preclusion.

• Paolicelli, 335 NLRB 881, 882 (2001): The Board's established policy favors resolving cases on the merits rather than by default.

We Care Skilled Nursing Fremont, California, 32-UC-363158 (Unpublished Board Decision)

The Board denied review of a Regional Director’s decision dismissing a unit clarification petition filed by We Care Skilled Nursing in Fremont, California. The Board found the employer’s submission, though styled as a brief in support of exceptions, raised no substantial issues warranting review, and treated it as a request for review under Section 102.67(c) of the Board’s Rules and Regulations. The petition, filed against Service Employees International Union, Local 2015, remains dismissed.

Essentia Health, 374 NLRB No. 140, 18-RC-330714 (Published Board Decision)

The Board granted the Employer's request for review of a Regional Director's decision finding an appropriate bargaining unit of nurse practitioners, physician assistants, certified nurse midwives, and clinical nurse specialists, collectively called Advanced Practice Providers, across nine acute-care hospitals and 51 non-acute clinics operated by Essentia Health in its East Market division.

The Employer had raised two separate challenges to the petitioned-for unit. One concerned the unit's composition, arguing that because the unit spans acute-care hospitals, the Board's Health Care Rule requires that all professional employees, not just Advanced Practice Providers, be included. The other concerned the unit's scope, arguing that the 13 geographic submarkets making up the East Market division should each be treated separately rather than combined into a single unit.

The Regional Director had rejected both arguments, finding that the Health Care Rule did not apply and instead applying the test from American Steel Construction to conclude the composition was appropriate, and applying the Board's traditional multifacility test, drawn from cases like Exemplar and Stormont-Vail Healthcare, to find that the petitioned-for locations shared a community of interest.

The Board majority, Chairman Murphy and Members Prouty and Mayer, granted review specifically on the composition question, framing it as whether the Health Care Rule governs unit composition when a petitioned-for multi-facility unit combines acute-care and non-acute facilities, and if not, what standard should apply instead. The majority clarified that the Health Care Rule addresses only which classifications belong in a unit, not which locations may be combined, so it does not bear on whether acute-care and non-acute facilities can be grouped together, a question instead governed by ordinary multifacility community-of-interest precedent. The Board specified that its grant of review does not reach whether American Steel Construction itself was correctly decided. The Board invited briefs from the parties and interested amici on these questions, with initial briefs due July 29, 2026 and responsive briefs from the parties due August 12, 2026.

Member Prouty dissented in part, arguing that the Employer had not shown the compelling reasons required under the Board's rules to grant review, particularly since employees had already voted for representation and a Certification of Representative had issued, so further proceedings would only prolong uncertainty over their bargaining representative. Prouty nonetheless joined in soliciting briefing on the composition issue given the majority's decision to grant review.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the current Board standard for determining whether a petitioned-for bargaining unit is appropriate.

• Exemplar, 363 NLRB 1500 (2016): Applied the Board's multifacility test to assess whether employees at different locations share a community of interest sufficient to be combined in one unit.

• Stormont-Vail Healthcare, 340 NLRB 1205 (2003): Applied the Board's multifacility community-of-interest test in the healthcare setting to determine appropriate unit scope.

Northville Manor LLC, JD-45-26, 07-CA-326048 (ALJ Decision)

An administrative law judge found that a Michigan nursing home unlawfully fired a mother and daughter after they raised concerns about their pay and hinted they might go to the NLRB.

Dejahnae Unique Hatcher worked as a dietary aide and later a cook at Northville Manor, a nursing home her mother, Monique Craig, also worked at as a cook. When Hatcher was promoted without a corresponding raise, she and Craig repeatedly raised the issue with their supervisor, the director of nursing, and eventually with the facility's corporate office, also complaining that they were not being paid for all their hours. During one of these calls, an employee reached the corporate dietitian and said she planned to go to the "Labor Board" if her pay issue wasn't resolved.

The day after Craig raised the pay issues with the corporate office, the director of nursing called her and said that she and her daughter were "about to lose" their jobs because they had gone to corporate, and reiterated the threat when Craig confirmed she planned to go to the Labor Board. Both women were separated from the company shortly afterward. The company argued they had voluntarily resigned after being confronted about violating its nepotism policy, which restricts relatives from working the same shift or department, but produced no witness or contemporaneous documentation to support that claim, only later-created payroll records and unemployment paperwork that had "fired" crossed out and replaced with "resigned." A recorded conversation between the company's former counsel and the former director of nursing was also admitted into evidence, in which she referred repeatedly to the pay complaints as the reason for the terminations and only mentioned nepotism after being prompted, without ever claiming the women were given a resign-or-be-fired choice.

The judge credited the employees' testimony that they were fired, not that they quit, and found that both women engaged in protected concerted activity by discussing their pay and hours with each other and raising it collectively with management, activity the Board has said is "inherently concerted" given how central wages are to employment. She also found their mention of going to the Labor Board protected activity under the Act's provision barring retaliation for NLRB-related activity, regardless of whether they actually understood what the agency did. Because the company's stated justification for the firings was not supported by the evidence, the judge concluded it failed to show it would have fired the women regardless of their protected activity.

The judge ordered the nursing home to reinstate Hatcher, ensure Craig (who was later rehired) keeps her full seniority, and make both women whole for lost pay and other financial harms, including tax consequences of a lump-sum award, while also requiring it to remove records of the terminations from their files and post a notice to employees about their rights.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for cases where an employer is accused of firing a worker for protected activity but claims a legitimate business reason.

• NLRB v. City Disposal Systems, 465 U.S. 822 (1984): Sets out the standard for determining when an employee's actions constitute protected concerted activity.

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Recognizes that wages are among the topics of greatest concern to employees and central to protected concerted activity.

• NLRB v. Scrivener, 405 U.S. 117 (1972): Holds that protection against retaliation for NLRB-related activity is broadly interpreted beyond formally filing a charge or testifying.

• Cordua Restaurants, Inc., 368 NLRB No. 43 (2019): Holds that discussing wages with coworkers is protected concerted activity, including related follow-up requests that logically grow out of those discussions.

Starbucks Corporation, 22-RD-369759 (Unpublished Board Decision)

The Board denied a petitioner's request for review of a regional director's decision to block a decertification petition under a pending unfair labor practice charge.

In a footnote, the employer had asked Member Prouty to recuse himself, citing his past and present ties to the Service Employees International Union and its affiliates, including Workers United. Member Prouty consulted the NLRB's Designated Agency Ethics Official and determined there was no basis for recusal.

The Board majority found that the regional director had properly applied Section 103.20 of the Board's Rules and Regulations, which governs the blocking-charge policy allowing a pending unfair labor practice charge to pause processing of a related representation petition. Members Murphy and Mayer stated they were applying existing law for institutional reasons and took no position on whether the blocking-charge policy itself was correctly decided.

Member Mayer wrote separately to note that under the Board's current procedures, regional directors are expected to continually reassess whether a blocking charge should keep a petition in abeyance, citing the Casehandling Manual and Section 103.20(e), which allows a regional director to resume processing a petition if special circumstances arise or employee free choice becomes possible despite a pending unfair labor practice case. He suggested that the Board should consider whether its blocking-charge policy adequately accounts for the passage of time since a petition was filed, and urged that unfair labor practice cases blocking an election be given priority.

JSK Parsippany, LLC, D/B/a Fairfield Inn & Suites by Marriott, and Fairfield Parsippany, LLC, as Suc, 22-CA-305280 (Unpublished Board Decision)

The Board denied a motion filed by the General Counsel seeking clarification of its earlier decision in the case, finding that further clarification was not warranted.

The General Counsel had argued that the Board's original decision did not address the administrative law judge's finding that Fairfield Parsippany, LLC, the successor entity, is liable for remedying the unfair labor practices committed by JSK Parsippany, LLC. The Board rejected this argument, noting that its prior decision had already affirmed the judge's rulings, findings, and conclusions in full. The General Counsel's motion also raised a related argument, not previously presented as an exception to the Board, that the recommended order and notices should have been modified to specifically incorporate the successor liability finding. The Board found this unnecessary as well, explaining that its existing order already requires JSK and its successors to remedy JSK's unfair labor practices, so the remedies in place were already appropriate.

Significant Cases Cited

• Smoke House Restaurant, 347 NLRB 192 (2006): Cited for the principle that a Board order requiring a respondent and its successors to remedy unfair labor practices is sufficient without additional express modification addressing successor liability.

Start Small. Think Big., Inc., 02-RC-317333 (Unpublished Board Decision)

The Board denied the employer's request for review of a regional director's decision directing an election, finding no substantial issues warranted reconsideration.

The dispute centered on whether Ian McDermott, a Senior Finance Program Manager, qualified as a statutory supervisor under Section 2(11) of the NLRA based on his role in hiring decisions. The majority, Chairman James Murphy and Member David Prouty, explained that even assuming McDermott had authority to effectively recommend hiring, the employer failed to show that he exercised independent judgment in making those recommendations. They pointed to the thin record on McDermott's approach to hiring, noting only a single statement that he recommended a candidate because he believed she would stay in the job long term.

Member Scott Mayer dissented, arguing review should have been granted. He pointed to testimony from Senior Director Ranjit Unnithan that McDermott was deeply involved throughout the hiring of Program Coordinator Arlene Cornejal, from screening resumes through interviewing and recommending her hire, and that Unnithan would not have proceeded without McDermott's approval. Mayer argued this made McDermott's role comparable to, or stronger than, the supervisor's role in Sheraton Universal Hotel, where a negative recommendation would have been fatal to an applicant. He also faulted the regional director for failing to address independent judgment at all, noting McDermott's stated rationale for recommending Cornejal reflected a subjective judgment call untethered to any employer policy or checklist.

Mayer further cited secondary indicia supporting supervisory status: McDermott alone authored Cornejal's performance review without Unnithan's involvement, responded to her requests for professional development and more frequent one-on-one meetings, and was himself evaluated on his performance as a manager of Cornejal in his own review.

Significant Cases Cited

• Sheraton Universal Hotel, 350 NLRB 1114 (2007): Found a putative supervisor had authority to effectively recommend hiring where a higher-level manager testified that a negative recommendation from the supervisor would have been fatal to an applicant's chances.

• HS Lordships, 274 NLRB 1167 (1985): Found supervisory status based on a manager's unequivocal testimony that he would not hire an applicant over the putative supervisor's objection.

• Fred Meyer Alaska, Inc., 334 NLRB 646 (2001): Addressed what evidence is needed to show a putative supervisor exercises independent judgment in recommending hires based on their own assessment of needed skills and candidate qualifications.

The Purple Eagle LLC D/B/a the Video Game Cavern., JD-44-16, 10-CA-343133 (ALJ Decision)

An administrative law judge found that a South Carolina video game retailer violated the NLRA by maintaining an overly broad nondisclosure agreement and by firing an employee who discussed a manager's pay and job performance with coworkers.

The retailer, which buys, sells, and trades video games, required all employees to sign a nondisclosure agreement after a new owner took over in early 2024. The agreement barred workers from disclosing "confidential information," a term defined to include information about the company's employees, including their salaries, strengths, weaknesses, and skills. An employee named Romulus Lofink signed the agreement along with everyone else.

Lofink had grown frustrated with the store's general manager, whom he believed was performing poorly and, he learned, was being paid considerably more than expected. Over several months, Lofink discussed these concerns regularly with coworkers, sometimes in front of an assistant manager who was a company supervisor, and he also raised the issues directly with the general manager and the owner. In May 2024, the owner learned from customers that Lofink had discussed the manager's salary and criticized his work while in the store. After a brief investigation that did not include interviewing Lofink, the owner confronted him, cited a violation of the nondisclosure agreement, and gave him the choice to resign or be fired. Lofink initially said he would resign but returned the next day and asked to be discharged instead, which the company did, citing the nondisclosure agreement violation in his termination letter.

The judge applied the framework from Stericycle, Inc., which asks whether a work rule could reasonably be read by an employee to restrict activity protected by Section 7 of the NLRA, such as discussing wages or working conditions with coworkers or a union. The judge found the nondisclosure agreement's ban on disclosing employees' salaries, strengths, weaknesses, and skills was exactly this kind of overly broad rule, since it contained no carve-out for NLRA-protected activity. The employer's stated interest in protecting confidential business information from competitors did not excuse the lack of narrower tailoring.

Because the agreement itself was unlawful, the judge found under Continental Group, Inc. that firing Lofink for violating it was also unlawful. The judge further found, applying the Wright Line causation test, that Lofink's discharge was independently unlawful retaliation for protected concerted activity, since he had regularly discussed the manager's performance and pay with coworkers with the goal of improving their working conditions, the company knew about these discussions, and animus toward that activity motivated the firing. The judge rejected the company's arguments that Lofink's statements were false or that his language was so disparaging as to lose the Act's protections, noting the company never proved his statements about the manager's salary were false and that use of profanity, standing alone, does not strip an employee of protection.

The judge ordered the company to rescind the nondisclosure agreement, reinstate Lofink, and make him whole for lost pay and benefits, plus post a notice to employees.

Significant Cases Cited

• Stericycle, Inc., 372 NLRB No. 113 (2023): Set the standard for evaluating whether a work rule is facially unlawful, holding a rule is presumptively unlawful if an employee could reasonably read it to restrict Section 7 activity, unless the employer shows a legitimate interest that cannot be achieved through narrower tailoring.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting causation test for cases alleging that an employer's action was motivated by protected activity.

• Continental Group, Inc., 357 NLRB 409 (2011): Held that discipline imposed under an unlawful work rule itself violates the Act when the employee's conduct was protected or implicated Section 7 concerns.

• Pier Sixty, LLC, 362 NLRB 505 (2015): Held that an employee's use of profanity, including toward a supervisor, does not by itself remove the Act's protection.

• Valley Hospital Medical Center, 351 NLRB 1250 (2007): Held that an employee's false statements lose the Act's protection only if knowingly false or made with reckless disregard for their truth.

Custom Sign Consultants, JD-42-26, 13-CA-343009 (ALJ Decision)

Kierstyn worked for Custom Sign Consultants, a Chicago sign fabrication company, on two separate occasions, first from March 2022 to September 2023 and then again from December 2023 to May 2024. After returning in his second stint, he began discussing wages with coworkers in the spring of 2024, telling them what he earned and encouraging some who were paid less to ask for raises or push for job duties that matched their pay. Around the same time, the company's owner, Al Frapolli, announced plans to cut employees' hours by five hours a week, which spurred Kierstyn and his coworkers to talk more about whether the cuts were fair given their pay.

On May 17, 2024, the company's shop and production manager, Felix Ortiz, told Kierstyn in front of coworkers that he was no longer allowed to discuss wages. Kierstyn kept talking about wages anyway over the following days. On May 23, Frapolli and office manager Lesley Casas called Kierstyn in and told him he was being discharged, citing "unsatisfactory workmanship" in his termination letter. Kierstyn immediately followed up with Frapolli, who told him he was tired of Kierstyn "acting like a union rep" and "boasting" about his wages.

The administrative law judge, Andrew Gollin, found that Ortiz's instruction not to discuss wages violated Section 8(a)(1) of the NLRA. Although the judge concluded the General Counsel failed to prove Ortiz was a formal statutory supervisor (the evidence on his authority to hire, assign, or direct work was too thin), the judge found Ortiz was nonetheless an agent of the company under Section 2(13) because employees reasonably believed he spoke for management, given his role relaying instructions between Frapolli and the production staff.

On the discharge, the judge applied the Board's Wright Line burden-shifting framework and found the General Counsel proved wage discussions were a motivating factor in Kierstyn's firing. Wage discussions are "inherently concerted" protected activity under the Act regardless of intent to spur group action, and the judge found ample evidence of company knowledge and animus: Frapolli's own statement about Kierstyn "acting like a union rep," the close timing between the wage talk and the firing, shifting and undocumented justifications for the discharge (the company had never disciplined Kierstyn despite dozens of recorded late arrivals, unlike a comparator employee who received formal warnings), and inconsistent testimony about when the decision to fire him was actually made. The company failed to show it would have fired Kierstyn regardless of the wage discussions, so the judge ordered reinstatement, backpay, and related remedies, including compensation for tax consequences and pecuniary harms under Thryv.

Significant Cases Cited

• North Mountain Foothills Apartments, LLC, 373 NLRB No. 26 (2024): Held that wage discussions among employees are "inherently concerted" and protected regardless of whether they are intended to induce group action, and that a supervisor's statement barring wage discussion violates Section 8(a)(1).

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether an adverse employment action was motivated by protected activity.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Set out the standard for supervisory status under Section 2(11), requiring detailed evidence of independent judgment in exercising authority such as hiring, assigning, or disciplining.

• Pan-Oston Co., 336 NLRB 305 (2001): Held that an employee can be an agent of the employer under Section 2(13) if employees would reasonably believe the employee was speaking or acting on management's behalf.

• Tschiggfrie Properties Ltd, 368 NLRB No. 120 (2019): Held that discriminatory motive (animus) may be proven through circumstantial evidence, including suspicious timing and shifting justifications for an adverse action.

Sona Senior Living IL 2, LLC, 13-RD-383878 (Regional Election Decision)

The Regional Director found that the Employer became a Burns successor when it took over the senior living facility and recognized the incumbent Union. Because the Employer set its own initial terms rather than adopting the predecessor's terms wholesale, the applicable reasonable period for bargaining under UGL-UNICCO Service Co. ran between six months and a year from the parties' first bargaining session, based on the multi-factor test that examines the complexity of the issues, the number of sessions, negotiation progress, and whether an impasse exists.

The Employer argued the petition should be allowed to proceed because the Union dragged its feet on scheduling actual bargaining dates, wasting the reasonable period's protection. The Regional Director rejected this, relying on the "inexcusable procrastination or other manifestations of bad faith" standard from Dominguez Valley Hospital. Reviewing the email record between the parties, the decision found the Union had reached out to the Employer immediately upon learning of the transition, and that the parties exchanged frequent, cordial communications about facility access and scheduling logistics even though no formal bargaining session was ever set. The Regional Director distinguished this case favorably from American Medical Response Ambulance Service, noting the Union here was even more responsive than the union in that prior case, which the Board had also found did not engage in inexcusable procrastination.

The decision also noted that the Employer never proposed its own bargaining dates or complained about the pace of scheduling, citing Virginia Mason Medical Center for the proposition that such employer passivity undercuts a procrastination argument. Because bargaining had not yet begun eight months after the transition, the six-month-to-one-year reasonable period had not yet expired when the decertification petition was filed. The Regional Director also rejected the Employer's argument that the Supreme Court's Loper Bright Enterprises decision undermined the successor bar doctrine, explaining that Loper Bright addresses only the standard of judicial review courts apply to agency interpretations and doesn't disturb the Regional Director's obligation to follow existing Board precedent. The petition was dismissed.

Significant Cases Cited

• UGL-UNICCO Service Co., 357 NLRB 801 (2011): Establishes that a successor employer's bargaining obligation is protected by a "reasonable period" of six months to a year, with a shorter fixed six-month period applying only if the employer adopts the predecessor's existing terms without unilateral changes.

• St. Elizabeth Manor, Inc., 329 NLRB 341 (1999): Holds that after a successor employer recognizes an incumbent union, election petitions are barred for a reasonable period of time to allow bargaining to occur.

• Dominguez Valley Hospital, 287 NLRB 149 (1987): Establishes that a union's delay in requesting bargaining defeats the successor bar only if it amounts to inexcusable procrastination or other manifestations of bad faith.

• American Medical Response Ambulance Service, 28-RD-294046 (2022): Found that a seven-month delay by an incumbent union in requesting bargaining after a successorship did not constitute inexcusable procrastination sufficient to defeat the successor bar.

• Virginia Mason Medical Center, 350 NLRB 923 (2007): Notes that an employer's failure to complain about bargaining delays or propose its own dates weighs against a claim that the union's delay was unreasonable.

V2X, Inc., 31-RC-383401 (Regional Election Decision)

The Regional Director for Region 31 directed an election among twelve Training Analysis Feedback Facility Leads at V2X's Fort Irwin, California operation, rejecting the employer's argument that these lead employees are statutory supervisors excluded from NLRA protection.

V2X provides training-exercise support to the military at the National Training Center, and its TAFF teams monitor and analyze training operations for Army units passing through the base. Each team is headed by a TAFF Lead who oversees several TAFF Specialists. The company argued that these Leads exercise supervisory authority under Section 2(11) of the NLRA by assigning work, disciplining employees, responsibly directing their work, and promoting them to a "Crew Lead" role. Because Section 2(11)'s supervisory functions are listed in the disjunctive, proof of any single one would have been enough to exclude the Leads from the bargaining unit, but the Regional Director found the employer's evidence too vague and conflicting to establish any of them.

On assignment authority, the record showed TAFF Leads build shift schedules within fixed staffing and hour parameters set by the company, and one Lead testified he simply rotates specialists through workstations because "everybody's able to do the exact same job." That kind of rotational, availability-based scheduling has repeatedly been found not to involve the independent judgment required for supervisory status.

On discipline, the evidence was inconsistent. While TAFF Leads fill out disciplinary forms following a progressive policy set out in the collective bargaining agreement, their manager reviews each write-up and can override it, and testimony conflicted over whether Leads' recommendations are followed without further review. The Regional Director found this insufficient to show Leads discipline, or effectively recommend discipline, independent of oversight.

On direction of work, the decision found no evidence that Leads face any adverse consequences tied to their specialists' performance, a requirement for "responsible direction" under Board precedent. And on promotion, the Regional Director concluded that the informal, unpaperworked designation of a "Crew Lead," which carries only a modest pay bump and minimal added duties, is better understood as an added task than a promotion, and in any event involves no meaningful exercise of judgment since the Lead who testified chose based on straightforward seniority and observed competence.

Because the employer failed to carry its burden on any of the disputed indicia, the Regional Director found the twelve-person TAFF Lead unit appropriate and directed a mail-ballot election, to be conducted between early August and a ballot count on August 25, 2026.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established that Section 2(11)'s supervisory functions are listed in the disjunctive, so possessing any one function with independent judgment confers supervisory status, and that the party asserting supervisory status bears the burden of proof.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Set out the Board's framework defining "assign," "responsibly to direct," and "independent judgment" under Section 2(11).

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Held that generalized or conclusory testimony cannot establish supervisory status; specific evidence and examples are required.

• Croft Metals, Inc., 348 NLRB 717 (2006): Found that following a pre-established rotational or delivery schedule in directing employees does not involve independent judgment.

• Lucky Cab Co., 360 NLRB 271 (2014): Held that disciplinary authority only confers supervisory status if it leads to personnel action without independent investigation or review by other management.

Holaday-Parks-Fabricators, Inc. D/B/a Holaday-Parks, Inc., 19-RD-388539 (Regional Election Decision)

A regional director has directed a mail-ballot decertification election for a small group of technicians at Holaday-Parks, rejecting the union's argument that the group's bargaining unit had already merged into a larger, pre-existing unit represented by the same union.

The dispute arose because Holaday-Parks had two groups of union-represented employees: an "existing unit" covered since 2023 by a Standard Form of Union Agreement (SFUA) with the International Association of Sheet Metal, Air, Rail & Transportation Workers, Local 55, and a separate "certified unit" of Technicians and Specialists that the union won through a 2024 election. In 2025, after a grievance over non-unit employees performing unit work and an unfair labor practice charge, the union and employer signed a memorandum of understanding (MOU) that brought the certified unit's employees under the terms of the SFUA. When an employee in the certified unit later filed a decertification petition, the union argued that the MOU had effectively merged the certified unit into the larger existing unit, meaning the certified unit no longer existed as a separate, decertifiable entity.

The regional director disagreed, applying the Board's "unequivocal manifestation of intent" standard for finding a merger of bargaining units. Under that standard, established in cases like American Can Co. and reaffirmed in NBC Universal Media, LLC, a party asserting that units have merged must show clear, mutual intent by both the union and the employer to combine them, not just evidence that a shared contract covers both groups' wages and working conditions.

The regional director found that the SFUA itself contains no unit recognition or unit description language, only a description of covered work, so it could not by itself establish an intent to merge units. The MOU, in turn, stated that the certified unit's employees would be covered by the terms of the SFUA, but the director read this as addressing wages and working conditions rather than combining the two units into one. Notably, the MOU explicitly referenced the certified unit's prior election and certification, which the director found reinforced that the certified unit continued to exist as a distinct unit rather than being absorbed into the existing one. The director also noted that when the union originally petitioned for the certified unit in 2024, it sought a stand-alone unit rather than asking to add those employees to the existing unit, further undercutting the merger claim.

Because the union, which bore the burden of proof, failed to show the required unequivocal intent to merge, the director held that the certified unit remained the appropriate unit for decertification purposes and directed a mail-ballot election among the roughly five employees in that unit for July and August 2026.

Significant Cases Cited

• NBC Universal Media, LLC, 369 NLRB No. 134 (2020): Reaffirmed that a party alleging a merger of bargaining units must show an "unequivocal manifestation of intent" to merge, based on mutual intent as shown by contract language and bargaining history, and rejected a more holistic "course of conduct" approach.

• American Can Co., 109 NLRB 1284 (1954): Established the "unequivocal manifestation of intent" standard for finding that separate bargaining units have merged.

• Hygrade Food Products Corp., 85 NLRB 841 (1949): Found no unequivocal intent to merge local plant units where the record only showed the parties negotiated a master agreement for convenience.

• Wisconsin Bell, 283 NLRB 1165 (1987): Found a merger had occurred where the union and employer deleted contract language referring to "separate bargaining units" and specified that newly certified employee groups would be included in the overall unit.

• Campbell Soup Co., 111 NLRB 234 (1955): Established the general rule that a decertification election must be held in a unit coextensive with the existing certified or recognized unit, since Congress made no provision for decertifying only part of such a unit.

Regal Cinemas, Inc., 19-UC-360345 (Unpublished Board Decision)

Assistant Managers at a Regal Cinemas location lack the authority to discipline employees, the Board found in denying the Employer's request for review of a Regional Director's decision clarifying the bargaining unit represented by Teamsters Local Union 690.

The dispute centered on whether the theater's Assistant Managers exercise genuine disciplinary authority under Section 2(11) of the NLRA, which would make them supervisors excluded from the bargaining unit. The Regional Director had concluded they do not, and the Board agreed that the Employer raised no substantial issues warranting review.

Central to the ruling was the Employer's own progressive discipline policy, which by its own terms allows managers to skip steps or repeat verbal counselings at their discretion. General Manager Justin Powell testified that employees can receive multiple counselings for the same or different infractions before advancing to a second step of formal discipline. Because the policy expressly permits managers to bypass or repeat its stages, the Board found the Employer does not actually follow a progressive disciplinary system, consistent with precedent holding that employers bear the burden of proving such a policy exists. Without a genuine progressive system in place, the verbal and written counselings issued by Assistant Managers do not amount to job-affecting discipline or carry effective recommendations for discipline. The Board also agreed with the Regional Director that the Employer failed to show Assistant Managers exercise independent judgment in disciplinary matters, a separate requirement for supervisory status.

Member Mayer wrote separately to voice disagreement with part of the reasoning. He argued it was unreasonable to discount a manager's authority to issue verbal warnings simply because the employer reserves the right to skip ahead to more severe discipline, including immediate discharge, in serious cases like an assault on a coworker. In his view, tying supervisory status to a rigid, inflexible disciplinary sequence conflicts with how discipline actually works in practice and with Congress's intent in defining supervisors under the Act. Despite this disagreement, Mayer concurred in the result, agreeing that under existing Board precedent the Employer had not shown the Assistant Managers exercise independent judgment.

The Board separately rejected the Employer's argument that the proceeding was invalid because the removal protections shielding Board members from at-will discharge are unconstitutional. Citing recent precedent, the Board noted that the Employer had not shown it suffered any actual harm from those removal protections, a threshold requirement for such a challenge to succeed regardless of its constitutional merits.

Significant Cases Cited

• Veolia Transportation Services, 363 NLRB 902 (2016): Employers bear the burden of proving the existence of a progressive discipline policy when relying on it to establish supervisory authority.

• Republican Co., 361 NLRB 93 (2014): Reinforces that an employer asserting a progressive discipline policy must actually prove the policy exists and is followed.

• Ohio Masonic Home, 295 NLRB 390 (1989): In the absence of a genuine progressive discipline policy, verbal and written counselings do not constitute job-affecting discipline sufficient to confer supervisory status.

• Progressive Transportation Services, 340 NLRB 1044 (2003): A disciplinary system need not be rigid and inflexible for the discipline involved to be supervisory, so long as the discipline has the real potential to affect employment.

• K & R Contractors, LLC v. Keene, 86 F.4th 135 (4th Cir. 2023): A party challenging the constitutionality of removal protections must show actual harm resulting from those protections, regardless of the underlying constitutional question.

Montefiore Nyack Hospital, 02-RC-349294 (Unpublished Board Decision)

The RN care managers must be given the opportunity to decide whether they want to join a preexisting bargaining unit at Montefiore Nyack Hospital, the Board ruled, rejecting the Employer's request to overturn a regional director's decision ordering a self-determination election.

The Board found that the regional director had properly applied Warner-Lambert Co. in directing the election, agreeing that the RN care managers form an identifiable, distinct segment of employees. Beyond the reasoning already given by the regional director, the Board pointed to additional facts supporting that conclusion: the RN care managers hold different licensure that lets them complete different state-required discharge forms, and they earn significantly higher salaries than the Social Worker care managers who already work in the unit. The Board rejected the Employer's reliance on American Steel Construction, finding that decision inapplicable here. It also found that the petitioned-for RN care managers share a community of interest with the existing unit because both groups consist of registered nurses falling under the same category of the Board's Health Care Rule, citing St. Vincent Charity Medical Center. Given that finding, the Board said it did not need to reach the regional director's separate community-of-interest analysis.

On the question of supervisory status, the Board agreed the Employer failed to show that RN care managers assign significant duties to care management assistants or bedside RNs using independent judgment. Because each RN care manager is paired with one care management assistant and each patient with one bedside RN, and those two roles have distinct duties, there was no real choice involved in assigning work, only one obvious option, citing Oakwood Healthcare, Inc.

The Board also upheld the finding that the RN care managers are not managerial employees. The Employer, who bore the burden of proof, pointed to unspecified internal policies governing the RN care managers' work but never produced those policies or explained what they required, nor did it show through specific examples that the RN care managers exercised independent judgment beyond those policies, as required under Wolf Creek Nuclear Operating Corp.

The Board declined to consider the Employer's argument that it lacked adequate time to prepare witnesses after the Petitioner amended its petition, since the Employer never raised that issue before the regional director and the rules bar new arguments on review. It also rejected, citing its recent decision in Satellite Healthcare (Santa Rosa), the Employer's claim that the regional director lacked authority to direct or certify an election while the Board itself lacked a quorum. Finally, the Board rejected the Employer's constitutional challenge to its own removal protections, agreeing with the regional director that the Employer had shown no actual harm from those protections, citing Winco Holdings, Inc. and the Fourth Circuit's decision in K & R Contractors, LLC v. Keene.

Significant Cases Cited

• Warner-Lambert Co., 298 NLRB 993 (1990): Sets the standard for determining whether a group of employees is an identifiable, distinct segment eligible for a self-determination election to join an existing unit.

• American Steel Construction, 372 NLRB No. 23 (2022): Addresses the Board's standard for determining whether a petitioned-for unit is appropriate, found inapplicable to self-determination election disputes here.

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Held that employees falling under the same Health Care Rule category share a community of interest for purposes of a self-determination election.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Establishes the framework for determining supervisory status based on the use of independent judgment in assigning work.

• Wolf Creek Nuclear Operating Corp., 364 NLRB 1619 (2016): Places the burden on the party asserting managerial status to show, with specific examples, the exercise of independent judgment beyond established policies.

On July 8, 2026, the General Counsel and Apex Fintech Solutions each filed a post-hearing brief with Administrative Law Judge Arthur J. Amchan in Case 12-CA-325317. Both briefs told the judge that Stericycle, Inc., 372 NLRB No. 113 (2023), the Board's governing standard for workplace rules, was wrongly decided. Both then argued the case under it anyway.

That is not a contradiction. It is the shape the current General Counsel's litigation strategy has settled into, and the Apex briefs show it more cleanly than anything else in the docket so far.

The Case

John Richardson was a data engineer hired by Apex, a Dallas-based clearing and custody firm, in November 2021. As a condition of employment he signed an "Employee Agreement Regarding Confidentiality, Non-Competition, and Non-Solicitation."

Almost immediately he ran into an onboarding task that required employees who "identify as female" to enroll in a poker course called Poker Powher, and employees who "identify as male" to invite women to join it. Richardson, who wanted to take the course, emailed HR to ask whether he could enroll anyway, and whether a comparable program existed for men. Over the next two years he compiled a substantial record of what he regarded as gender discrimination in his workplace: a mentorship program in which men could serve only as mentors and never as mentees, women-only networking events held during working hours, Slack threads in which managers discussed increasing referral bonuses for female candidates and advancing a self-described "weakest of the bunch" intern applicant to balance the class, and a long run of sexist jokes posted by employees and reacted to approvingly by supervisors.

Richardson raised these concerns internally, then with the EEOC, and finally in public. On August 25 and August 30, 2023, he published lengthy LinkedIn posts laying out the complaints. Coworkers saw them, liked them, and messaged him about them. On the night of August 30, Apex's Senior Director of Human Resources emailed Richardson demanding he take the posts down, asserting that some statements in them were false and defamatory without identifying which ones. Richardson refused. Apex fired him on September 1, and its discharge letter says why: the LinkedIn posts.

Then, on October 17, 2023, Apex sued him for defamation, identifying as actionable a set of statements that the General Counsel characterizes as plainly opinion, and seeking damages without alleging any actual injury. Apex served discovery to prosecute the suit and did not drop it until October 28, 2025.

The amended complaint alleges four Section 8(a)(1) violations: threatening Richardson with unspecified reprisals, discharging him for protected concerted activity, filing and prosecuting a baseless retaliatory lawsuit, and maintaining unlawfully overbroad rules in the Employee Agreement. Counsel for the General Counsel Steven Barclay argues all four should be sustained, and asks for reinstatement, backpay, and consequential damages under Thryv, Inc., 372 NLRB No. 22 (2022).

Footnote 48

The rules allegation is where it gets interesting. Under Stericycle, a facially neutral work rule is presumptively unlawful if a reasonable employee contemplating protected activity could read it as coercive, and the employer rebuts that presumption only by showing the rule serves a legitimate and substantial business interest that no narrower rule could serve.

The General Counsel's brief applies that test in earnest and at length. It walks through Apex's definition of "Proprietary Information," which sweeps in manuals, training materials, the company's educational process, and its list of "members, partners, stockholders, and investors." It gets Apex's own VP of HR to concede on the record that "members" means employees, and that several of the covered manuals contain nothing proprietary. It analogizes to G&E Real Estate Management Services (Newmark Grubb Knight Frank), 369 NLRB No. 121 (2020). It concludes that Apex "is unable to meet its burden."

And then, at the bottom of page 46, footnote 48:

The General Counsel disagrees with Stericycle and will urge the Board to overturn it in favor of an approach to employer work rules and handbook policies that is more aligned with congressional intent and conducive to maintaining peaceful and orderly workplaces.

The brief goes on to argue the point under this standard.

Apex's answering brief makes the same basic move. It says Stericycle "was wrongly decided," and adds:

Notably, even the General Counsel's office recently urged the Board to reconsider the Stericycle framework. See Counsel for the General Counsel's Exceptions and Supporting Brief, Starbucks Corporation, Case 13-CA-322871 (filed June 17, 2026).

Apex then explains that "because Stericycle remains controlling precedent, Apex addresses the challenged provisions under that framework without waiving its position that the Board should abandon it."

Both parties, in other words, arrived at the same posture from opposite directions: apply the law, preserve the objection.

This is fairly standard practice as far as things go. Board law is established by the Board not by the General Counsel. The General Counsel and the Administrative Law Judges are bound by existing Board precedent. Thus, when the GC wants the Board to weaken its existing protections, she must bring cases under current precedent, win them at the ALJ level, and then hope that the Board will use them as a vehicle to overturn that precedent.

Nevada CVS Pharmacy, L.L.C. D/B/a CVS Pharmacy Store 08787, 28-RC-372677 (Regional Election Decision)

The regional director in this case rejected a Nevada CVS Pharmacy's attempt to keep a staff pharmacist and two "Front Store Supervisor" pharmacy technicians out of a bargaining unit sought by the Pharmacy Guild, finding that none of them qualify as supervisors under the NLRA and that the technicians share a community of interest with the rest of the unit.

The employer argued that the staff pharmacist effectively runs the pharmacy whenever the pharmacy manager is off duty, pointing to testimony that she "quarterbacks" the team of technicians and moves them between stations like drop-off, production, pick-up, and the drive-through. The regional director found this kind of shuffling did not amount to the statutory power to "assign" work, because the moves were driven by rotation, equalizing workload, or matching technicians to already-known skills, such as who is a certified immunizer, rather than by independent judgment. The decision walked through several cases the employer cited for comparison, including Acumen Cap. Partners, Entergy Miss., and RCC Fabricators, and distinguished each one on the grounds that the supervisors in those cases had authority, such as assigning employees to their overall places of work or effectively recommending discipline, that the staff pharmacist lacked here.

The employer also leaned heavily on the fact that Nevada law requires a licensed pharmacist to be present whenever the pharmacy is open, arguing this made the staff pharmacist responsible for the technicians' performance in a way that should confer supervisory status. The regional director rejected this, citing Board precedent holding that a state licensing scheme does not establish that the employer itself holds an individual accountable for others' work under the NLRA. The decision also noted a recent unpublished Board decision involving the same employer, Rhode Island CVS Pharmacy, which rejected an identical argument based on Rhode Island's pharmacy licensing law.

On discipline, the regional director found no evidence that the staff pharmacist has ever issued or recommended discipline, and testimony suggested employees have refused her requests to come in on short notice without facing any consequences. On hiring and firing, the record showed the pharmacy manager, not the staff pharmacist, interviews and hires technicians. The decision also rejected the employer's reliance on the technicians' "Front Store Supervisor" job title, since the two employees holding that title had not actually worked in the front of the store for many months and no evidence showed them exercising any supervisory authority in practice.

Turning to the composition of the unit, the regional director found that the pharmacy technicians, including the FSS-titled ones, are part of a readily identifiable group sharing a community of interest with the rest of the petitioned-for unit. All pharmacy employees report to the same pharmacy manager, work exclusively in the pharmacy, share similar pay structures and benefits, and have little contact or interchange with front-of-store staff.

The decision directs a Sonotone election, with the licensed pharmacists voting separately on whether to be included in a combined unit with the non-professional technicians before all ballots are counted together on the question of union representation.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the modern framework for analyzing supervisory status under Section 2(11), including what counts as "assignment" of work, "responsible direction," and the use of independent judgment.

• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Held that the party asserting supervisory status bears the burden of proving it by a preponderance of the evidence.

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Restored the community-of-interest standard from Specialty Healthcare, requiring an "overwhelming community of interest" showing to expand a petitioned-for unit.

• Buchanan Marine, L.P., 363 NLRB 523 (2015): Held that even if a government regulatory scheme would hold an individual accountable for others' conduct, that alone does not establish supervisory authority exercised in the interest of the employer.

• St. Francis Medical Center-West, 323 NLRB 1046 (1997): Found that irregular, emergency-basis substitution for a supervisor, including authorizing overtime in emergencies, does not confer supervisory status.

Central Iowa Hospital Corporation D/B/a UnityPoint Health – Des Moines, 18-RC-371855 (Unpublished Board Decision)

The Board denied the Employer's request for review of the Regional Director's decision, finding it raised no substantial issues warranting review. The underlying dispute concerned the Employer's attempt to revoke or withdraw from the eligibility date the parties had agreed to in their Stipulated Election Agreement. The Board agreed with the Regional Director that this attempt fell outside the terms of that agreement. The Board noted that the Stipulated Election Agreement had expressly anticipated that the election might need to be rescheduled, but it did not provide for any change to the voter eligibility date in that event. The Board also found that the circumstances of the case were not sufficiently "unusual," nor did they amount to the "cause" required to justify setting aside the eligibility date the parties had agreed upon.

Significant Cases Cited

• Tekweld Solutions, Inc., 361 NLRB 201, 201-203 (2014): Addressed the standards governing modification of terms within a Stipulated Election Agreement.

• T&L Leasing, 318 NLRB 324, 325 (1995): Held that a previously agreed-upon voter eligibility date will not be set aside absent unusual circumstances or cause.

Several years ago, my client, Megan, worked briefly for No Dogs Left Behind (NLDB), a dog-rescue led by Jeffrey Beri. In late 2024, a fire broke out at a NDLB building, killing 44 dogs. This resulted in a considerable amount of online criticism of NDLB and Beri, which Beri took exception to. Beri got it into his head that Megan was in some way involved in this online criticism and thus filed a lawsuit against her and ten John Does apparently as part of a fishing expedition to identify and crack down on his critics.

At first glance, the idea that you could file a lawsuit against someone for allegedly criticizing a dog-rescue that set 44 dogs on fire seems strange. Don’t we have a First Amendment in this country? Aren’t people allowed to freely speak their minds?

Increasingly, the answer to that question is actually no, at least when it comes to anyone who has ever employed you. These days employers regularly require everyone they employ to sign agreements containing non-disclosure, non-disparagement, and confidentiality provisions that prohibit them from ever criticizing the employer, its executives, its officers, and a long list of similar sorts of parties. These “NDAs” typically have no expiration date, meaning that employees are bound to them for the rest of their lives, potentially decades after they stopped working at the company.

Megan had signed such an agreement, which gave Beri the legal peg he needed to come after her. He filed a breach-of-contract claim against Megan in a New York state district court alleging that she had violated her non-disparagement provision.

Employers don’t usually have to sue former employees to shut down their speech in this way. They typically just hire a lawyer to send threatening letters and employees just do whatever they are asked to do so as to avoid the potentially crushing expenses of a lawsuit. This is true even if the employee never actually violated their NDA. In Megan’s case, this dynamic was stated overtly at one point in a text she received from an NDLB-affiliated individual named Candy Udell:

Remarkably, Megan decided to actually defend herself from the lawsuit pro se, meaning without an attorney. After about a year of that, I was brought into the case to help.

I have litigated four of these kinds of cases in the last few years and, in each of them, I do the same thing. I file a charge at the NLRB alleging that the NDA, on its face, violates the NLRA under Stericycle and McLaren Macomb and that the employer has filed a preempted lawsuit that seeks the illegal objective of enforcing an NDA that facially violates the NLRA (Bill Johnson’s Restaurant). Depending on the specifics, I may also allege that the lawsuit is retaliatory and baseless.

After filing a charge, I file a motion to stay or dismiss the court case on the theory that it is preempted under the Garmon preemption doctrine. This doctrine states that if the relevant conduct at issue in the court case is arguably prohibited or arguably protected by the NLRA, courts must generally stay or dismiss the case until the NLRB has had a chance to decide on whether that conduct is actually prohibited or protected by the NLRA. So here, the argument is that the NDA is arguably prohibited by the NLRA, the parties have an active NLRB proceeding over the NDA, and so the court case should be stayed or dismissed until the NLRB has decided that issue.

Normally, once I finish filing the charge and the motion, the other side figures out that they are in a bad position and the case is voluntarily dismissed or settled on very favorable terms. This can take a while as the lawyers who typically file these lawsuits are not labor lawyers and most are typically surprised that you can defeat these lawsuits this way.

In this case, however, opposing counsel did not withdraw the case or offer to settle. Instead, he filed a very brief answer in which he claimed that the filing of the NLRB charge “is, on its best day, a ruse.” So, in a first for me, the judge had to actually issue a decision on the Garmon motion. As expected, Judge Farley’s decision was that the NDA at issue in the case arguably violates the NLRA and that therefore the case should be stayed until the completion of the NLRB proceeding.

It is nice to get this sort of concrete confirmation that this legal argument works. I am not the first to succeed at it, of course, but oftentimes I get the sense from other lawyers I talk to about it that they view it as exotic and unlikely to succeed.

Ultimately, this is not a real solution to the underlying policy problem though. The vast majority of workers threatened in this way are going to give in rather than pay a lawyer to use this strategy, if they can even find one who is aware of it. Additionally, NLRB GC Carey is gearing up to try to overturn Stericycle and McLaren Macomb, which are key to making this strategy work.

If we really want to make sure that workers are free from coercion and able to speak freely about their employers, we need legislation explicitly banning employers from using these kinds of agreements and we need monetary penalties for those who continue to do so.

Amazon.com Services, LLC, 374 NLRB No. 138, 29-CA-277198 (Published Board Decision)

The Board has affirmed an administrative law judge’s findings that Amazon committed a series of violations of the NLRA during the Amazon Labor Union’s 2021 organizing campaign at the JFK8 fulfillment center on Staten Island, while dismissing one allegation involving the discharge of an employee at a nearby delivery station.

The Board upheld findings that contracted security guards acted as Amazon’s agents when they told an employee he needed permission to distribute union literature, confiscated the literature, and photographed his badge to report him to human resources. In a separate incident about a week later, another security guard created the impression that employees’ union activities were under surveillance by pointing a phone at organizers and workers during a union event. The Board also affirmed that Amazon violated the law in June 2021 when a manager and a human resources employee separately told employees they could not hand out union literature on their own time in nonwork areas and confiscated the literature, and when another human resources employee did the same later that day.

The Board dismissed the allegation that Amazon violated the law by firing employee Daequan Smith from a nearby delivery station. The Union had argued that a manager who had displayed hostility toward Smith’s union activity manipulated his time records to trigger his firing over a negative unpaid-time balance, a theory drawn from the Supreme Court’s “cat’s paw” doctrine in Staub v. Proctor Hospital. The Board found the record did not establish that any such manipulation occurred, so neither the General Counsel nor the Union could show that a biased Amazon agent caused the termination.

On the remedy, the Board corrected an error in how backpay for Smith’s earlier unlawful early dismissal should be calculated, and a plurality of two members declined to take a position on whether the expanded remedies from Thryv, Inc. are lawful, while agreeing to apply them for now. A third member, Member Prouty, would have gone further and required Amazon to read the notice aloud to employees and hand-deliver it to supervisors, citing the company’s pattern of restricting employees’ access to information about their organizing rights while flooding them with anti-union messaging through its own communication channels.

Significant Cases Cited

• Staub v. Proctor Hospital, 562 U.S. 411 (2011): Established the “cat’s paw” theory of discrimination, under which an employer can be liable for an adverse action influenced by a biased supervisor’s actions even if the ultimate decisionmaker held no discriminatory animus.

• Thryv, Inc., 372 NLRB No. 22 (2022): Announced expanded standard remedies requiring employers to compensate employees for all direct or foreseeable pecuniary harms resulting from unfair labor practices, not just traditional backpay.

• F. W. Woolworth Co., 90 NLRB 289 (1950): Set the standard method for computing backpay in NLRB remedial orders.

• New Horizons, 283 NLRB 1173 (1987): Established the interest rate applied to backpay awards in Board remedies.

• Standard Dry Wall Products, 91 NLRB 544 (1950): Set the Board’s policy against overturning an administrative law judge’s credibility findings absent a clear preponderance of contrary evidence.

Riverside Healthcare System, L.P., D/B/a Riverside Community Hospital, 374 NLRB No. 139, 21-CA-347056 (Published Board Decision)

The hospital refused to bargain with the union after a self-determination election added a small group of specialized registered nurse classifications (including trauma registry, quality coordination, and sepsis coordinator roles) to an existing nurse bargaining unit. Rather than litigating a fresh unfair labor practice defense, the hospital used the refusal as a vehicle to get court review of the underlying representation case, arguing that these nurses were actually managerial and supervisory employees excluded from the NLRA's coverage.

The Board rejected this approach because the hospital had already raised, and lost, this same managerial and supervisory argument during the representation proceeding, including in a request for Board review that was denied in January. Since the hospital did not offer any newly discovered evidence or point to special circumstances justifying a second look, the Board found there was no litigable issue and granted the General Counsel's summary judgment motion, citing Pittsburgh Plate Glass Co. v. NLRB for the principle that such re-litigation is barred.

The hospital's answer also included several denials that the Board found legally insufficient to block summary judgment, including disputing that it was served the charge (contradicted by a certified affidavit of service) and disputing a business relationship already stipulated to in the representation case. The hospital additionally raised broad constitutional challenges: that Board members and administrative law judges are unconstitutionally shielded from removal, that the NLRB's structure violates separation of powers and due process, and that the Board's adjudication of unfair labor practice remedies violates the Seventh Amendment right to a jury trial. The Board rejected all of these as unsupported, bare assertions, noting the hospital had not shown any actual harm from the removal protections and that the Supreme Court has already held that NLRB adjudication does not implicate the Seventh Amendment, since the Act creates a public right that Congress may assign to administrative adjudication.

Having found the refusal to bargain unlawful under Section 8(a)(5) and (1), the Board ordered the hospital to bargain with the union on request, post the standard notice both physically and electronically, and file a compliance certification within 21 days. The Board declined the General Counsel's request to extend the union's certification year, since that remedy does not apply when the underlying election was a self-determination election rather than a first-time certification vote.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941): Established that representation issues already litigated (or that could have been litigated) in the underlying representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Held that the NLRA does not violate the Seventh Amendment because it involves a public right that Congress may assign to administrative adjudication rather than a jury trial.

• Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Reaffirmed that Congress may assign adjudication of public rights created by statute to an administrative agency without violating the Seventh Amendment.

• Winkie Mfg. Co., 338 NLRB 787 (2003): Held that the Mar-Jac Poultry certification-year extension remedy is inappropriate where the underlying election was a self-determination election rather than an initial certification election.

• Collins v. Yellen, 594 U.S. 220 (2021): Addressed the standard for showing harm from unconstitutional removal restrictions on agency officials, requiring a showing of actual compensable harm.

Nexstar Media Inc., D/B/a WJET-TV/WFXP-TV/Yourerie.com, 374 NLRB No. 137, 06-CA-343546 (Published Board Decision)

The Board granted summary judgment against Nexstar Media Inc., which operates television stations WJET-TV, WFXP-TV, and Yourerie.com in Erie, Pennsylvania, ordering the company to bargain with the Screen Actors Guild-American Federation of Television and Radio Artists after it refused to recognize the union following certification.

The case followed a familiar pattern used by employers seeking court review of a certification: after the union won an election among on-air employees in March 2024 and was certified as the bargaining representative, the company refused to bargain, allowing it to contest the certification through an unfair labor practice proceeding rather than only through the representation case itself. Nexstar admitted it had refused to bargain but argued it had no obligation to do so because the certification was invalid.

Nexstar's central argument was that a now-rescinded General Counsel memo, which addressed employees' right to refuse captive audience meetings, had tainted the "laboratory conditions" needed for a fair election. The Board rejected this and other arguments as previously litigated and rejected in the underlying representation case, noting Nexstar offered no newly discovered evidence or special circumstances that would justify revisiting the earlier decision. Under established Board precedent, a party generally cannot relitigate representation issues in a later unfair labor practice case unless such new evidence exists.

The company also raised several constitutional and procedural defenses, all of which the Board dismissed. It argued that Board proceedings violated its Seventh Amendment right to a jury trial, a claim the Board rejected by citing longstanding Supreme Court precedent holding that the National Labor Relations Act creates public rights that Congress may assign to administrative adjudication without a jury. Nexstar also challenged the removal protections afforded to Board members and administrative law judges, but the Board found no evidence that Nexstar suffered any actual harm from those protections, following recent precedent on the issue. Additional defenses, including claims that the proceeding was barred by the Act's limitations period or tainted by fraud, were rejected for lack of any factual support.

Having found no litigable issues, the Board concluded that Nexstar's continued refusal to bargain since May 2024 violated Section 8(a)(5) and (1) of the NLRA. It ordered the company to bargain with the union on request, post notices at its Erie facility, and certify compliance with the Regional Director within 21 days.

Significant Cases Cited

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Held that the National Labor Relations Act's adjudicatory scheme does not violate the Seventh Amendment right to a jury trial.

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues litigated or litigable in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence.

• Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Reaffirmed that Congress may assign adjudication of public rights, including under labor law, to an administrative agency without violating the Seventh Amendment.

• SJT Holdings, Inc., 372 NLRB No. 82 (2023): Held that a respondent must show actual harm from unconstitutional removal protections to obtain relief on that basis.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the certification year begins running from the date an employer actually begins bargaining in good faith, not from the certification date, when the employer has unlawfully refused to bargain.

Atlassian Corp., JD-43-26, 16-CA-324971 (ALJ Decision)

An administrative law judge has ruled that Atlassian US, Inc. violated the NLRA when it fired a longtime senior site reliability engineer for a series of internal posts criticizing company decisions, and separately found that severance agreements the company offered her contained unlawfully broad confidentiality and nondisparagement clauses, and that four provisions in its "Community Guidelines" were themselves unlawfully overbroad.

The engineer, employed for about 11 years, was coached or reprimanded on three occasions for posts on internal Confluence and Slack channels: a 2019 post questioning a job-title overhaul, a May 2023 post describing coworkers' complaints about a new "stack ranking" performance system, and a June 2023 post criticizing a co-CEO's angry response to employees who questioned planned manager layoffs at a town hall. She was fired days after the third post, with the company's stated reason citing a "pattern" of "acrimonious communications and ad hominem attacks" going back to 2019.

The judge found all three posts were protected concerted activity because each raised or built on group concerns about terms and conditions of employment, including job titles, performance evaluations, and management's treatment of employees during layoff-related changes. Applying the totality-of-the-circumstances test from Desert Springs Hospital Medical Center, the judge found the engineer did not lose the Act's protection: the post was made in an internal, non-public channel designed for employee feedback, other employees made similar or harsher comments without discipline, and the company's own guidelines against "ad hominem attacks" had never previously been enforced. The judge also found that even under the alternative Wright Line burden-shifting framework, the company failed to show it would have fired her absent her protected activity, citing disparate treatment of other employees, suspicious timing, and shifting justifications between the termination itself and the company's litigation position.

On the severance agreements, the judge applied McLaren Macomb and found the confidentiality and nondisparagement clauses, which broadly barred discussing the agreement's existence or making any "negative comments" about the company's integrity, practices, or personnel, were not narrowly tailored and would reasonably chill employees from filing charges or discussing labor disputes. The company's argument that the agreements were sent to her by clerical error was rejected because it never told her so or attempted to rescind them, and, under McLaren Macomb, the mere proffer of an unlawful agreement violates the Act regardless of whether it's signed.

Finally, applying the Stericycle framework, the judge found four separate rules in the company's Community Guidelines unlawfully overbroad: a rule against employees making "demands," a ban on "ad hominem attacks" targeting a person's motives, a rule against communications that could "negatively impact" partners or shareholders, and a rule against disclosing "confidential" information that the company's own ethics code defined to include employee compensation.

The remedy orders reinstatement, backpay, rescission of the unlawful agreement provisions and guideline rules, and a notice-posting requirement.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): An employer violates Section 8(a)(1) by merely offering a severance agreement with overly broad confidentiality or nondisparagement provisions that aren't narrowly tailored to Section 7 rights, regardless of surrounding circumstances.

• Lion Elastomers LLC, 372 NLRB No. 83 (2023): Reinstated setting-specific standards (including the totality-of-the-circumstances test) for evaluating whether an employee lost the Act's protection during otherwise-protected activity, overruling General Motors.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Set the framework for evaluating facially neutral work rules, asking whether a reasonable employee would interpret the rule to restrict Section 7 activity, with the employer bearing the burden to justify overbroad language.

• Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016): Established the totality-of-the-circumstances standard for evaluating employee misconduct during workplace conversations and social-media posts among coworkers.

• Wright Line, 251 NLRB 1083 (1980): Set the burden-shifting framework for analyzing whether an employer's adverse action against an employee was motivated by protected activity.

Providence Regional Medical Center Everett, 19-RC-387865 (Regional Election Decision)

A regional director for the NLRB has ordered an election for a unit of pharmacists at Providence Regional Medical Center Everett in Washington, rejecting the union's proposed unit of inpatient pharmacists only and instead directing a vote covering all of the hospital's pharmacists, including those in its ambulatory care and retail departments.

The Pharmacy Guild/International Association of Machinists and Aerospace Workers had petitioned to represent only the roughly 44 inpatient pharmacists at the hospital's Everett campuses, arguing they were distinct from the hospital's other pharmacists because they worked around-the-clock shifts, used specialized medication-tracking technology, and needed a post-graduate residency that ambulatory and retail pharmacists did not. The Employer countered that the proposed unit was inappropriate on two grounds: the inpatient pharmacists should instead be given a chance to vote on joining an existing bargaining unit represented by United Food and Commercial Workers Local 3000, and any standalone unit would improperly exclude the hospital's other pharmacists.

The regional director's analysis centered on how two areas of Board law intersect in acute-care hospitals. Under the Board's 1987 Health Care Rule, only eight types of bargaining units are generally appropriate in acute care settings, including a single unit covering all professionals apart from registered nurses and physicians, in order to prevent excessive fragmentation of hospital workforces. Separately, the Board's long-standing residual unit doctrine holds that a group of employees left out of an existing bargaining unit can only form its own appropriate unit if it is truly separate and distinct, or if it is "residual," meaning it covers all remaining unrepresented employees of that type.

Because UFCW, which already represents a broad professional unit at the hospital, had declined to seek to add the pharmacists to its existing unit, the option of a self-determination election to fold inpatient pharmacists into that unit was off the table. That left the residual unit doctrine as the operative framework. The decision explains that non-incumbent unions, unlike incumbent ones, may organize a residual unit of employees omitted from an existing bargaining structure, but only if that unit sweeps in all of the unrepresented employees of the relevant type, not just a subset. Since the petitioned-for unit covered only inpatient pharmacists and left the ambulatory care and retail pharmacists unrepresented, it did not qualify as a proper residual unit under the case law. The union indicated at the hearing it was willing to proceed to an election among all of the hospital's pharmacists if the narrower unit was found inappropriate, and the regional director accepted that broader unit of roughly 72 employees as satisfying both the Health Care Rule's anti-proliferation goal and the residual unit requirement. An election was set for July 28, 2026.

Significant Cases Cited

• Fleming Foods, 313 NLRB 948 (1994): A petitioned-for unit of employees omitted from an established bargaining unit is appropriate only if it is separate and distinct or if it is residual, covering all unrepresented employees of that type.

• St. John's Hospital, 307 NLRB 767 (1992): An incumbent union's petition for a new unit covering only some of the remaining unrepresented employees of a type it already represented was found inappropriate because it risked proliferating units.

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): An incumbent union may seek a self-determination election to add a group of unrepresented employees to an existing unit even if some employees remain unrepresented, since this does not create additional units.

• St. Mary's Duluth Clinic Health System, 332 NLRB 1419 (2000): A non-incumbent union may represent a separate residual unit in an acute care hospital if that unit includes all remaining unrepresented employees of one of the Health Care Rule's eight types.

• Budd Co., 154 NLRB 421 (1965): An incumbent union cannot petition for a new unit of the same type it already represents and instead must seek to add employees to its existing unit.

The Rochester General Hospital, United Memorial Medical Center, and Unity Hospital, 03-RC-384306 (Regional Election Decision)

Rochester Union of Nurses and Allied Professionals petitioned to represent physicians, nurse practitioners, physician assistants, and registered nurses at Rochester Regional Health's eleven urgent care centers across the Finger Lakes region of New York. The employer, which operates the centers through hospital staff from Rochester General Hospital, United Memorial Medical Center, and Unity Hospital, argued that registered nurses should be excluded from the unit because they lack a community of interest with the physicians, nurse practitioners, and physician assistants (collectively, "providers"). The union countered that all four job classifications share professional employee status, distinguishing them from the licensed practical nurses, medical assistants, and access associates who round out the urgent care staff.

Following an April 21, 2026 hearing, the Regional Director sided with the employer and excluded the registered nurses from the unit.

Applying the Board's community of interest framework, the decision found that most factors weighed against grouping registered nurses with the providers. On skills and functions, providers all diagnose patients, prescribe medications and treatments, and write discharge instructions, and hold advanced degrees along with credentialing and privileging obligations and 50 annual hours of continuing medical education. Registered nurses, by contrast, generally lack a bachelor's degree, do not need continuing medical education or privileging, and cannot diagnose, prescribe, or write discharge instructions. Their duties center on rooming patients, administering treatments providers order, and giving discharge instructions written by others, with only IV medication administration and TB test reading exceeding what licensed practical nurses and medical assistants can do.

The decision also found little functional integration or interchangeability between the two groups, since registered nurses cannot perform provider duties or fill in for an absent provider, while providers rarely perform registered nurse tasks in practice. Supervision differs as well: providers are overseen through a medical director and executive director chain, while registered nurses report through a separate nursing chain of command. Terms and conditions of employment diverge too, with providers salaried and under individual contracts while registered nurses are hourly, accrue overtime, and follow different schedules, dress codes, and evaluation processes.

The decision did find that providers and registered nurses share common work sites and have meaningful contact given the collaborative nature of urgent care, but concluded these two factors were outweighed by the others. The directed unit therefore includes only physicians, physician assistants, and nurse practitioners across the eleven urgent care locations, with a mail ballot election scheduled for mid-June to early July 2026.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Overruled PCC Structurals and reinstated the Specialty Healthcare standard, holding that a petitioned-for unit of a subdivision of employees is appropriate if it shares an internal community of interest, is readily identifiable as a group, and is sufficiently distinct.

• PCC Structurals, Inc., 365 NLRB No. 160 (2017): Established a stricter standard for evaluating petitioned-for units that required comparing the shared interests of included and excluded employees, later overruled by American Steel Construction.

• Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Set the original standard giving deference to a union's proposed unit unless excluded employees share an overwhelming community of interest with included employees, later reinstated by American Steel Construction.

• United Operations, Inc., 338 NLRB 123 (2002): Applied traditional community of interest factors, including skills, functions, integration, interchange, supervision, and working conditions, in determining an appropriate bargaining unit.

Cranemasters, 13-RD-372038 (Unpublished Board Decision)

The Board denied the employer's request for review of a regional director's decision to hold a decertification petition in abeyance under the Board's blocking-charge rule.

A worker had filed a petition to decertify IOUE Local 150 as the union representing employees at Cranemasters, Inc. The union asked the regional director to block that petition from moving forward, and the regional director agreed, putting the petition on hold. The employer challenged that ruling, asking the Board to review it.

The Board found the employer's request raised no substantial issues warranting review. It concluded that the regional director had not abused her discretion in holding the petition in abeyance under Section 103.20(c) of the Board's Rules and Regulations, which addresses the standards for blocking charges. Because the Board resolved the case on that basis, it did not decide whether blocking was also justified under Section 103.20(b).

In a footnote, Chairman Murphy and Member Mayer noted they were applying existing law for institutional reasons and did not offer their own views on whether that policy was correctly decided.

Ge Appliances, a Haier Company, 09-CA-332521 (Unpublished Board Decision)

The Board denied a motion for reconsideration filed by the Charging Party, La Donna S. Dawson, following its earlier decision in the case. Dawson had titled her filing a "Supplemental Exception, Motion for reconsideration, and Request to reopen the record," and asked the Board both to reconsider its prior ruling and to reopen the record to admit new evidence.

The Board found that Dawson had not identified any material error or extraordinary circumstances that would justify reconsideration under the Board's rules. To the extent she raised arguments she had not previously made before the administrative law judge or in her exceptions to the Board, including challenges to the judge's factual findings and credibility determinations and to the admission of supplemental payroll and banking records, the Board held those arguments were waived because they were not timely raised.

As for reopening the record, Dawson sought to introduce additional evidence such as payroll election records, payroll transaction histories, banking correspondence, and account documentation, along with evidence about inaccessible or charged-off bank accounts. The Board explained that a party seeking to reopen the record must show that the evidence was not available earlier and that, if admitted and credited, it would produce a different result. Dawson did not make that showing, nor did she explain how the additional documents bore on whether the General Counsel had met the burden of proving that the employer violated the NLRA. As a result, the Board denied the request to reopen the record.

Significant Cases Cited

• H&M Int'l Transportation, 363 NLRB 1861 (2016): Issues not previously raised before the judge or in exceptions to the Board are deemed waived.

REM Services, Inc. And Transdev Services, Inc., as Joint Employers, 16-RC-367048 (Unpublished Board Decision)

The Board has denied requests for review filed by REM Services, Inc. and Transdev Services, Inc. challenging a Regional Director's decision that found the two companies to be joint employers of bus operators represented by Teamsters Local Union No. 988. The Board concluded the requests raised no substantial issues warranting review.

The Board affirmed the finding that Transdev exercises substantial direct and immediate control over the supervision of the petitioned-for employees. It pointed to Transdev's monthly mandatory safety trainings, its "drive cam" monitoring system, and one-on-one meetings with operators as evidence of that control. The Board also found that Transdev's highly detailed standard operating procedures, which dictate matters such as the sequence of pre-trip bus inspections, when operators must pull away from a stop as other buses approach, how to handle a passenger who insists on exiting away from an official stop, minimum following distances, maximum wait times with a passenger aboard, and time limits for post-trip inspections, further demonstrated Transdev's control over how the work is performed. The Board noted that Transdev's SOPs also strictly limit operators to two 15-minute breaks per shift and require management approval for 5-minute bathroom breaks.

In a footnote, the Board clarified how the burden of proof works under the joint-employer rule at Section 103.40(a). Where the evidence on a particular essential term is deemed "inconclusive," the Board explained, that does not create a middle ground: since the party asserting joint-employer status bears the burden of proof, an inconclusive record means that party has failed to carry its burden, and the term in question does not favor a joint-employer finding. On this basis, the Board declined to rely on the Regional Director's characterization of Transdev's control over the "discipline" essential term as merely "inconclusive."

The Board also declined to rely on the Regional Director's finding that the absence of REM's onsite supervisor during much of the workday supported a finding of Transdev's control, explaining that the proper inquiry focuses on the functions performed by whatever supervisor is present, not which company employs that supervisor. Because a "podium" supervisor present at the worksite provides only "limited and routine" supervision, the fact that this supervisor works for Transdev rather than REM was not material to the joint-employer analysis.

The Board found it unnecessary to decide whether Transdev also exercises control over the separate essential term of "direction," since Transdev's control over supervision alone was sufficient to establish joint-employer status. Member Prouty, concurring in that conclusion, wrote separately to add that he would also have found Transdev exercised substantial control over direction, for the reasons given by the Regional Director.

Finally, the Board held that the Regional Director had properly based his conclusions on the hearing transcript and exhibits, and had properly disregarded irrelevant considerations, such as employees' subjective impressions, past union organizing efforts, or the terms of the contract between REM and Transdev, none of which bear on the joint-employer question under the Board's rules.

Significant Cases Cited

• Phelps Community Medical Center, 295 NLRB 486 (1989): Applied the principle that when evidence on a disputed issue is inconclusive, the party bearing the burden of proof has failed to satisfy it, in the context of Section 2(11) supervisory status.

• Cognizant Technology Solutions U.S. Corp. and Google, LLC, 372 NLRB No. 108 (2023): Addressed how detailed standard operating procedures issued by a user-employer can establish substantial direct and immediate control over employees' supervision for joint-employer purposes.

• G. Wes Ltd. Co., 309 NLRB 225 (1992): Held that in assessing a putative joint employer's control over supervision, the focus is on the functions performed by whatever supervisor is present at the worksite, not on which company employs that supervisor.

Starbucks, 03-RD-361063 (Unpublished Board Decision)

The Board denied requests for review from both the employer and the petitioning employee, upholding a regional director's decision to dismiss a decertification petition against Workers United at Starbucks.

The petition was dismissed under a "merit-determination dismissal," a mechanism that allows a regional director to set aside a decertification petition when the General Counsel has found merit in certain unfair labor practice charges against the employer. Here, the dismissal rested on consolidated complaints alleging violations in two separate cases. The Board found this was proper under the standard set out in Rieth-Riley Construction Co.

The Board rejected the argument that the regional director needed to first establish a "causal nexus" between the unfair labor practices and the decertification petition before dismissing it. It explained that the unfair labor practice complaints included allegations that the employer unlawfully refused to bargain, and if those allegations are proven, the remedy could include an affirmative bargaining order or an extension of the union's certification year, either of which would independently require dismissal of the petition regardless of whether any causal link to the petition existed.

The employer had also asked Board Member David Prouty to recuse himself, citing his past ties to the Service Employees International Union and its affiliates, including Workers United. Prouty determined, after consulting with the NLRB's ethics official, that no recusal was warranted.

Two of the three Board members who decided the case, Chairman James Murphy and Member Scott Mayer, noted they had not participated in the original Rieth-Riley decision but applied it as existing law. Mayer separately reiterated his view, expressed in an earlier Starbucks case, that the Rieth-Riley standard deserves reconsideration because of how long it can delay employees' ability to freely choose whether to keep, reject, or change their union representation.

Significant Cases Cited

• Rieth-Riley Construction Co., Inc., 371 NLRB No. 109 (2022): Established the standard governing when a regional director may dismiss a decertification petition, subject to reinstatement, based on a merit determination regarding certain unfair labor practice charges.

• Starbucks Corp., 373 NLRB No. 74 (2024): Addressed the relationship between unfair labor practice remedies, such as bargaining orders or certification year extensions, and the dismissal of pending decertification petitions.

• BOC Group, 323 NLRB 1100 (1997): Cited for the principle that certain unfair labor practice remedies can independently require dismissal of a decertification petition.

• Big Three Industries, Inc., 201 NLRB 197 (1973): Cited alongside BOC Group for the same principle regarding remedies requiring petition dismissal.

• Starbucks Corporation, 372 NLRB No. 156 (2023): Held that dismissal of a petition on these grounds does not depend on the existence of a causal nexus between the unfair labor practices and the petition.

Board's Interest Rate Increases to 7 Percent for the Third Quarter, Calendar Year 2026, OM 26-08 (OM Memo)

The interest rate the NLRB uses to calculate backpay and other monetary remedies has increased to 7 percent for the third quarter of 2026, covering July 1 through September 30. The rate tracks the Internal Revenue Service's underpayment rate, which the Board has used as its benchmark since New Horizons. The new rate is up one point from the 6 percent rate that applied in the second quarter, April through June 2026, though it matches the 7 percent rate in effect from January 2025 through March 2026.

Significant Cases Cited

• New Horizons, 283 NLRB 1173 (1987): Established that the Board calculates interest on backpay and other monetary remedies using the IRS underpayment rate rather than a fixed rate.

When employers want to stop their workers from organizing, they often hire special union avoidance companies — sometimes called labor persuaders — to run anti-union campaigns. The union busters use a pretty standard set of legal, illegal, and line-skirting tactics to try to scare workers away from voting yes in an upcoming union election.

One tool in the labor persuader toolkit is to put up a slick-looking anti-union website. This is what the Fred Hutchinson Cancer Center (Fred Hutch) did recently in its efforts to prevent its Advanced Practice Providers (APPs) from unionizing with the Union of American Physicians and Dentists (UAPD).

UAPD filed a representation petition for a unit of APPs on May 28. Six days later, on June 3, Fred Hutch registered the domain getthefactsfredhutch.com. By June 10, at the latest, the domain was pointing to an anti-union website full of the usual stuff about how unions are a “business” that will take your money and lie to you.

When I say that this is the “usual stuff,” I mean that quite literally. Amusingly enough for what I am going to describe later in this piece, the same anti-union firm that put up getthefactsfredhutch.com also apparently put up getthefactsprmce.com and provswedishfacts.com. All three use Wordpress, run on a Bricks theme, and use the Automatic.css and BricksExtra plugins. As you can see below, the three websites have strikingly similar content and design despite totally different employers and unions.

When I came upon the Fred Hutch website late last week, I thought it would be fun to create a response website. If anti-union firms are going to paste their usual slop into a slick website trying to persuade workers not to be in a union, then why not return the favor. It’s easier than ever to do with AI.

So on June 23, I registered realfactsfredhutch.com and proceeded to create a counter-website that responds to getthefactsfredhutch.com. I did this on my own. I received no money for doing it. In fact, it cost me $11.12.

Where the Fred Hutch website points out how much workers typically pay in dues, I point out how much more money unionized workers typically earn. Where the Fred Hutch website says that labor unions can legally say deceptive things during organizing campaigns, I point out that employers can legally say deceptive things during organizing campaigns (the NLRB has adopted a hands-off approach so as to avoid endlessly litigating election messages). Where the Fred Hutch website says in its answer to “what is a labor union” that it is a business workers pay to represent them, I answer the same question by saying unions are organizations of workers that bargain collectively.

The Fred Hutch bosses were apparently not happy with my website and so quickly hired Ballard Spahr, a Big Law firm, to harass me about it by pretending like what it doesn’t like about the website is that it infringes upon Fred Hutch’s intellectual property. Ballard Spahr began its campaign to shut me down by sending a takedown notice to Cloudflare, my domain registrar and DNS. Cloudflare sent me an automated message about it and sent an automated message to my virtual private server provider, Digital Ocean. Digital Ocean then sent me an automated message about it, saying it was in my discretion whether to comply.

The website, which is completely non-commercial in nature, was never infringing on any Fred Hutch IP. But the notice from Ballard Spahr did contain some specific complaints about similar colors and similar CSS and so I decided I would just make every change they asked me to make. I copied all of their objections into a Claude Code session and prompted the harness to do every single thing Ballard Spahr asked of me.

The Claude Code harness proceeded to completely rewrite the entire website — all of the HTML, CSS, and JS — from scratch, so as to be totally sure there were no Wordpress artifacts still in there. Instead of blue and teal, it went to red and beige. There are clear disclaimers at the top and bottom of every page to ensure that nobody could ever think this is a Fred Hutch website rather than an independent website about the Fred Hutch organizing campaign.

I even gave Ballard Spahr a call and left a voicemail letting them know I had made all the changes they asked for and to give me a call back so we can hash out any other concerns they might have.

A couple of days later, two (2) Ballard Spahr lawyers called me (might as well double-bill the client I guess) and proceeded to try to further intimidate me while offering totally non-specific continuing objections to the website. They even accused me of dishonesty when I explained to them who I am and that I am doing this on my own out of my own pocket.

The only clear thing that they demanded was that I transfer to them my realfactsfredhutch.com domain, on the theory that it infringes on the Fred Hutch trademark. I explained to them that this is not the case. Under the nominative fair use doctrine, you are allowed to use someone else’s trademark to talk about a company, which is exactly what I have done. They know that of course. They are IP lawyers. But they don’t care. Their job is not to make sure IP laws are followed. It is to intimidate anyone their well-endowed clients point them towards.

I pointed out that this sort of nominative fair use is very common in the labor context. TraderJoesUnited.org, which is about the Trader Joe’s organizing campaign, is not an IP infringement. Neither is StarbucksWorkersUnited.org. When I asked them whether they believe those are IP infringements, I was told that they don’t answer hypothetical questions.

Beyond demanding that I give them the domain, all I got were vague objections to the content being too similar. They objected to the fact that my FAQ page has the same questions on it as the Fred Hutch anti-union FAQ page, which itself has the same questions on it as the Providence Regional Medical Center FAQ page and the Providence Swedish FAQ page. They are, after all, frequently asked questions.

In response to these objections, I asked them whether they are really contending that I cannot ask “What is a labor union?” or “What is the NLRB?” on my website because Fred Hutch asked the same thing. To which I got a vague non-answer about how I should make something totally original.

Of course, the purpose of my website is to respond to the Fred Hutch website, to give pro-union answers to the same questions Fred Hutch gave anti-union answers to. The parallelism is part of the point-counterpoint nature of my message. I would say that this seemed to be lost on them, but again, it wasn’t really. Ballard Spahr lawyers are not stupid, just greedy.

The call ended with no progress being made. So, yesterday, Ballard Spahr emailed me the below letter.

Ballard Spahr July 1 Legal Letter

178KB ∙ PDF file

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The letter mostly complains about the first version of the website, the one that existed before I made every change they asked me to make. The word “original” — used in reference to the first version of the site — appears eleven times in the five-page letter. I guess they had already billed a bunch of hours typing up what they did not like about that first version and felt like they had to make some use of it. But, needless to say, I can’t do anything about the first version of the website. It’s already gone.

The only thing that does not seem to be about the first version of the website is that they want my domain (which is nominative fair use) and that they don’t like my FAQ page because it “contains identically worded questions and nearly identically worded answers as on Fred Hutch’s site, and they are presented in the same order, within the same categories, and using the same drop-down functionality.”

Last night, I responded to this complaint by changing the order of the questions, moving some of the questions into different categories, eliminating a couple of the categories, and making it so that the answer to each question is permanently visible rather than having the answers populate using drop-down functionality.

This is what they care about, right? The drop-down functionality, right? Well it’s gone now and I’m sure that will satisfy them. After all, they are genuinely concerned about their intellectual property, not using IP law as a bad faith pretext to try to shut down speech they don’t want their workers to hear. Right?

If Fred Hutch is willing to go to these lengths to intimidate some random guy with a website who is mostly out of their reach, one can only imagine what they must be doing to their own workers, people who are economically dependent on the company and therefore have good reason to fear retaliation. Workers won’t have freedom until we can put a stop to this kind of thuggery.

Sutherland Global Services, 05-CA-313962 (Advice Memo)

This is a heavily redacted advice or regional memo analyzing two unfair labor practice charges, with names, dates, and other identifying information withheld under FOIA privacy exemptions. The substantive analysis addresses whether the employer violated Section 8(a)(1) in two respects: changing its overtime policy and terminating an employee for recording a workplace meeting.

On the overtime policy change, the Region concluded there was insufficient evidence of an unlawful motive. The charging party had discussed concerns about unpaid incentive pay with at least one coworker, and the subsequent escalation to management was arguably protected as the logical outgrowth of concerted activity under Maine Coast Regional Health Facilities. However, the charging party's communications with higher-level officials made no mention of coworkers, leaving only a supervisor's offhand reference to "you guys" as potential evidence that the employer knew the complaint was group-related. The Region found that phrase alone insufficient to establish employer knowledge of concerted activity, particularly because the same language appeared in an earlier email predating any group activity. The overtime policy change also applied to the entire team, the charging party was offered overtime at least once, and the only evidence of animus was timing. The Region concluded that evidence would be too thin to prove retaliation.

On the termination, the employer discharged the charging party for recording a meeting with a supervisor in violation of its Clean Desk Policy, which required employees to store personal items including cell phones outside their work area to protect client confidentiality. The Region found insufficient evidence that the recording itself was protected concerted activity, and declined to issue a complaint.

Significant Cases Cited

• Maine Coast Regional Health Facilities d/b/a Maine Coast Memorial Hospital, 369 NLRB No. 51 (2020): Held that an individual employee's complaint can qualify as protected concerted activity when it is the logical outgrowth of prior group activity.

BAYADA Home Health Care, 27-CA-341402 (Advice Memo)

The NLRB's Division of Advice concluded that two provisions in BAYADA Home Health Care's separation agreement are lawful, directing Region 27 to dismiss the unfair labor practice allegations.

The first provision prohibited laid-off employees from soliciting BAYADA's current or former employees, clients, or business partners to leave the company or affiliate with competitors. The advice memo found this nonsolicitation clause not facially overbroad under the standard set in McLaren Macomb, which asks whether a provision reasonably tends to interfere with employees' Section 7 rights. The key distinction here was that the agreement applied only after the employment relationship had ended. Because the Board has historically protected conduct like employees helping one another find better jobs or improve job security only within the context of an ongoing employment relationship, a post-employment restriction on that same conduct does not infringe on protected activity. The act of actually leaving employment is itself unprotected; only a conditional threat to resign can be protected.

The second provision required former employees to cooperate with BAYADA in legal, regulatory, or investigative matters after separation, including providing information and attending meetings. The memo found this clause similarly lawful. While employees generally have a Section 7 right to refuse employer questioning that unduly pries into protected conduct, and a right to decline to submit to questioning in preparation for unfair labor practice proceedings, the advice memo noted that no Board precedent extends these protections to former employees generally. Additionally, the clause's reference to "providing information" and "attending meetings" indicated it was aimed at pre-trial cooperation rather than compelling testimony in formal proceedings.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): Held that an employer's proffer of a separation agreement provision is unlawful where its language has a reasonable tendency to interfere with, restrain, or coerce employees' exercise of Section 7 rights.

• Crescent Wharf & Warehouse Co., 104 NLRB 860 (1953): Distinguished the unprotected act of resigning from employment from a potentially protected conditional threat to resign if the employer does not meet certain conditions.

• Technicolor Services, 276 NLRB 383 (1985): Held that a union steward's efforts to have coworkers apply at other companies was protected Section 7 activity because it furthered employees' job security interests rather than aiming to harm the employer.

• Johnnie's Poultry Co., 146 NLRB 770 (1964): Established standards governing an employer's right to question employees in preparation for unfair labor practice proceedings.

• Retail Store Employees Union, Local 876, 219 NLRB 1188 (1975): Held that the NLRA protects an employee who, without malice, refuses to voluntarily testify against a fellow employee in an unfair labor practice proceeding.

Trader Joe's East Inc., 13-RC-339478 (Unpublished Board Decision)

The Board denied Trader Joe's East Inc.'s request for review of a Regional Director's decision upholding a union election victory by Trader Joe's United at a Chicago-area store, finding no substantial issues warranting review.

The employer's objections centered on the conduct of Nigel Brown, an employee and organizing-committee member. The Board assumed for purposes of the decision that Brown was a union agent, but concluded his conduct was not objectionable under the standard applicable to party agents. Brown allegedly warned employees that the employer would fire LGBTQ+ employees if the union lost, but the Board found this unactionable because any threat of job loss was not within the union's power to carry out. Brown's disruptive outbursts, which occurred on a single day about ten days before the election, were similarly dismissed: they might have embarrassed pro-union employees but could not reasonably have coerced anyone into voting for the union.

The Board also upheld the Hearing Officer's partial quashing of a subpoena directed at documentary filmmaker Nadia Shaarawi, who the employer speculated had filmed employees waiting to vote. The Board agreed with the Regional Director that filming by a non-party is not objectionable, and further found no evidence that Shaarawi was a union agent or that any filming occurred without consent. The employer's attempt to review her footage was characterized as a fishing expedition.

Member Mayer concurred in the outcome but wrote separately to criticize the Regional Director's handling of a separate subpoena directed at Brown himself. Mayer argued that subpoenaing communications between Brown and the union was plainly relevant to the agency question, and that Section 7 concerns should have been addressed through in camera review and redaction rather than outright revocation, as the D.C. Circuit established in Ozark Automotive Distributors, Inc. v. NLRB. Mayer found it fundamentally unfair to deny the employer access to potentially probative evidence and then rule against it for failing to prove agency. However, Mayer concluded the error was harmless because Brown's conduct would not have warranted setting aside the election even if he were a union agent, and agreed that the ballot of Brandi Hewitt should be opened and counted.

Significant Cases Cited

• Rio de Oro Uranium Mines, Inc., 120 NLRB 91 (1958): Overruled election objections based on union agents' threats of job loss where the threats were not within the union's power to carry out.

• Mediplex of Connecticut, Inc., 319 NLRB 281 (1995): Found that a brief scuffle between union agents and managers did not merit setting aside an election.

• Millard Processing Services, Inc., 304 NLRB 770 (1991): Found that filming by a non-party reporter near an election site was not objectionable conduct.

• Firestone Textiles Co., 244 NLRB 168 (1979): Found that derogatory and mildly threatening remarks shouted at employees by picketers did not warrant setting aside an election.

• Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015): Established that Section 7 concerns over subpoenaed materials should be addressed through in camera review and redaction, not preemptive revocation.

Mass General Brigham Incorporated, 01-RC-345183 (Unpublished Board Decision)

The Board denied Mass General Brigham's request for review of the Regional Director's decision directing an election in a multi-facility unit petitioned for by the Massachusetts Nurses Association, finding no substantial issues warranting review.

The central question was whether the petitioned-for unit, which spans multiple facilities, constitutes an appropriate bargaining unit under the community of interest standard. The Board agreed with the Regional Director that it does. The employees share overlapping education and training, similar skills, and hourly pay with only slight wage variations. They work on distinct but interconnected parts of the employer's occupational health and workers' compensation system and nearly all participate in an on-call rotation providing systemwide support across all facilities. Employees may fill in as clinical nurses at other locations, and some schedule clients' appointments in other employees' clinics. The group also shares centralized labor-relations and personnel policies, a common second-level supervisor, and corresponds to the employer's own administrative grouping within its Workplace Health department.

The Board acknowledged countervailing factors: limited interchange among employees, significant geographic distance between facilities, and a split in job duties between those performing direct clinical care and those doing administrative work. It found these differences outweighed by the commonalities. Member Mayer added that the geographic distance argument was undercut by the fact that the employer's own proposed alternative units would involve similar or greater distances between facilities.

Significant Cases Cited

• Exemplar, Inc., 363 NLRB 1500 (2016): Addresses the community of interest standard for determining appropriate bargaining units, including the relevance of administrative or supervisory groupings.

• Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003): Held that outlying clinics falling under the same administrative or supervisory grouping as other facilities should be included in the bargaining unit.

• Capital Coors Co., 309 NLRB 322 (1992): Identifies factors such as overlapping skills, training, and wage rates as favoring a finding of community of interest.

• Presbyterian/St. Luke's Medical Center, 289 NLRB 249 (1988): Addresses cross-facility scheduling and fill-in work as factors supporting inclusion of employees in a common unit.

Village of Streamwood, 13-WH-384602 (Unpublished Board Decision)

The NLRB certified Metropolitan Alliance of Police, Streamwood Civilians, Chapter #567 as a bona fide representative under Section 7(b) of the Fair Labor Standards Act, covering non-sworn civilian employees of the Streamwood Police Department in Illinois, including community service officers, parking and code enforcement aides, and police services specialists.

The certification was triggered by the union's April 2026 petition to Region 13. The FLSA's Section 7(b) allows employers and certified unions to agree to alternative overtime arrangements, and bona fide certification by the NLRB is a prerequisite. The Regional Director investigated, confirmed the union already holds recognized exclusive bargaining status under a collective bargaining agreement running through December 2027, and recommended certification. No party objected.

A footnote in the order flags an important limitation: this FLSA certification does not independently establish the union's right to recognition under the NLRA, which operates under a separate statutory framework.

Significant Cases Cited

• County of Alameda, 322 NLRB 614 (1996): Held that an NLRB certification of a representative as bona fide under Section 7(b) of the FLSA does not establish that organization's right to recognition as an exclusive bargaining representative under the NLRA.

In Trump v. Slaughter, the Supreme Court overruled Humphrey's Executor v. United States, 295 U.S. 602 (1935), holding that any officer exercising executive power within the President's general administrative control must be removable at will. Here is what that likely means for the NLRB.

Board Members: Removal Protections Are Gone

The for-cause removal protection for NLRB Board members under 29 U.S.C. § 153(a), which limits removal to "neglect of duty or malfeasance in office," is now constitutionally unenforceable. The trajectory was clear before Slaughter arrived. The Supreme Court had already granted a stay in Trump v. Wilcox in May 2025, with the majority finding the government "likely to show" the NLRB "exercise[s] considerable executive power." The D.C. Circuit majority followed in Wilcox v. Trump, 25-5057 (D.C. Cir. Dec. 5, 2025), holding that the NLRB's rulemaking authority, policymaking through adjudication, and independent litigating authority placed it outside Humphrey's exception. The Fifth Circuit reached the same conclusion in Space Exploration Technologies v. NLRB, 24-50627 (5th Cir. Aug. 19, 2025), which additionally flagged the NLRB's absence of a statutory partisan-balance requirement as further removing it from the 1935 FTC model. After March 2025, the NLRB itself had effectively abandoned its defense of Board member removal protections on the merits.

Slaughter resolves the question definitively: the President may remove Board members for any reason or none. President Trump's earlier removal of Board Member Gwynne Wilcox is constitutionally validated. Going forward, any administration may reconstitute the Board without statutory constraint on timing or cause.

The General Counsel: Already Settled

The NLRB General Counsel's at-will status was established before Slaughter. The Fifth Circuit in Exela Enterprise Solutions v. NLRB, 21-60426 (5th Cir. Apr. 22, 2022), and the Ninth Circuit in NLRB v. Aakash, Inc., 22-70002 (9th Cir. Jan. 27, 2023), both held that Humphrey's Executor never extended to the GC, whose purely prosecutorial functions, including final authority over investigations, complaints, and litigation strategy, made the position an at-will executive officer under Seila Law. Slaughter eliminates any residual argument for implying removal protection from the GC's fixed statutory term.

ALJs: A Live Circuit Split

NLRB Administrative Law Judges hold dual-layer removal protection: removal only for good cause as determined by the Merit Systems Protection Board, 5 U.S.C. § 7521, with MSPB members themselves subject to for-cause protection. Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), flagged double-layer structures as constitutionally suspect. The Fifth Circuit in Space Exploration held NLRB ALJ protections unconstitutional outright under that logic. The Second Circuit in Care One, LLC v. NLRB, 23-7475 (2d Cir. Feb. 5, 2026), reached the opposite conclusion, upholding ALJ protections for officers performing exclusively adjudicatory functions.

Slaughter does not resolve this split.

Past Board Action

Slaughter contains no holding on the retroactive validity of agency orders. The Court reversed and remanded without resolving those remedial questions.

However, under Collins v. Yellen, 594 U.S. 220 (2021), a party seeking to void Board action must demonstrate concrete harm caused by the constitutional defect. The Board has consistently invoked Collins and uniformly found no harm, including in McDonald’s Corporation, Amazon.com Services LLC, Nexstar Media Group,, and Peak Vista Community Health Centers. Each of those cases found “no evidence that the Respondent suffered any harm from the removal protections.”

The courts of appeals agree: the Third Circuit held an ALJ’s past actions “not void” in NLRB v. Starbucks Corp., the Ninth Circuit rejected a challenge in NLRB v. North Mountain Foothills Apartments because the President never sought the ALJ’s removal, and the Second Circuit in Care One, LLC v. NLRB held that merely appearing before an officer with unconstitutional tenure is not cognizable harm. No court has vacated a past NLRB decision on removal-protection grounds.

Last week, I wrote a piece about Starbucks Workers United winning its 700th union election at Starbucks. This is a momentous achievement for the union, but, as I wrote at the New York Times a couple of years ago, the legal footprint of the campaign also demonstrates how impossibly broken our labor law system is.

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As of today, the Starbucks union has won 701 elections covering 15,132 workers, according to NLRB data.

One way to see just how much legal activity this organizing has generated is to count up all of the unique documents across all of the Starbucks-related NLRB dockets. In my NLRB Research database, I count 16,077 such documents, which is more than one document per organized worker. These documents include petitions, charges, motions, decisions, and any other document that might show up on a legal docket. This count includes representation cases, unfair labor practice cases, and other cases that get sucked into my database each day.

Most of these documents never get posted to the web. There is an entry in the docket indicating they exist, but the only way to access them is to submit a Freedom of Information Act (FOIA) request with the NLRB. Some of the documents do get posted publicly. My database currently has 6,405 such documents. Collectively these documents contain 43.7 million words.

Among these documents are 370 legal decisions, including one from the Supreme Court. This is one legal decision for every 41 unionized workers.

Within my database, it is also possible to identify all of the lawyers who have been hired to do all of this work. On the Starbucks side of things, almost all of the work has been done by lawyers from the law firm Littler Mendelson. Together, Littler lawyers have filed nearly 6,700 appearances in Starbucks cases.

Like everything, law is subject to material constraints. Lawyers are finite. Judges are finite. NLRB attorneys, regional directors, ALJs, and Board members are finite. Animating these various actors costs money and is subject to various bottlenecks that can clog.

Unions have money that they can use to engage in legal battles, which is one of the reasons employers fear them: the pooling of dues allows unions to fight battles that individual workers never could. But union finances are not bottomless and unit legal costs can make marginal union organizing economically impossible.

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People who oppose unions will obviously not be bothered by this. If you can’t ban them, then creating an impossible legal environment is perhaps the next best thing. But formally at least, it remains the policy of the United States to encourage “the practice and procedure of collective bargaining” and to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

When a union can win this many elections at this rate and by these margins, but has to put up with this without securing any collective bargaining agreements, then the system we have is clearly at odds with its stated purpose.

Since General Counsel Crystal Carey was sworn in on January 7, 2026, the GC’s office has filed at least four briefs urging the Board to overrule or substantially modify recent precedent, targeting decisions in three overlapping areas: severance agreement restrictions, the standard for evaluating facially neutral work rules, and employer speech during organizing campaigns. The filings reflect a consistent posture of agreeing with respondent employers that post-2022 Board precedent swung too far toward finding liability, and of proposing more employer-friendly replacement standards.

Severance Agreements: Overruling McLaren Macomb

The GC urges overruling McLaren Macomb, 372 NLRB No. 58 (2023), which held that proffering a severance agreement containing provisions that limit employees' Section 7 rights violates Section 8(a)(1) whenever those provisions are not narrowly tailored, regardless of whether any other unlawful conduct accompanied the proffer. The GC has pressed for overruling McLaren Macomb in two separate cases now pending before the Board.

In Valley Radiology, P.A. (10-CA-324512, May 5, 2026), Counsel for the General Counsel filed an answering brief in which the GC expressly agreed with the respondent employer that McLaren Macomb should be overturned. The same position was advanced in Honeywell International, Inc. (09-CA-327389, June 1, 2026), again in response to an employer's exceptions.

The GC's argument in both cases is that McLaren Macomb erred by treating any "chilling tendency" in a severance agreement's language as equivalent to an actual relinquishment of Section 7 rights, without requiring proof that the provision explicitly waives those rights. That framework, the GC contends, disregards the Board's longstanding policy favoring private resolution of workplace disputes and renders routine non-disparagement and confidentiality provisions unlawful even where employees were not discharged or subjected to other coercive conduct.

The GC's primary proposed replacement standard would find severance agreement provisions unlawful only if they contain an explicit, non-narrowly-tailored waiver of Section 7 rights. Under this test, broadly worded or ambiguous provisions would not automatically constitute a waiver. As a fallback, the GC urges the Board to overrule McLaren Macomb and reinstate the framework from Baylor University Medical Center, 369 NLRB No. 43 (2020), and IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020), under which the proffer of a severance agreement is unlawful only when accompanied by unlawful discharges or other coercive circumstances.

Applying the proposed explicit-waiver standard to the facts of Valley Radiology, the GC concluded that the non-disparagement provision was still unlawful because it expressly barred the employee from assisting others with claims before the Board, but that the confidentiality of agreement provision was lawful.

Facially Neutral Work Rules: Overruling Stericycle

The GC has urged overruling Stericycle, Inc., 372 NLRB No. 113 (2023), in both the Honeywell and Starbucks Corporation (13-CA-322871, June 17, 2026) proceedings.

Stericycle held that a facially neutral workplace rule is presumptively unlawful if a reasonable employee who is economically dependent on the employer and who contemplates Section 7 activity could read the rule as coercive, even if a non-coercive reading is also available. The employer may rebut that presumption only by showing the rule advances a legitimate and substantial business interest that cannot be served by a more narrowly tailored rule.

The GC's criticism in both cases is that this standard encourages reading workplace rules in isolation from their evident purpose, stretches Section 7 beyond its congressional scope, and creates a climate of regulatory uncertainty that falls particularly hard on smaller employers. The GC argues that Stericycle fails to account for employers' parallel legal duties under federal and state law to maintain safe, harassment-free, and confidential workplaces, effectively pitting those duties against the Act. In the Honeywell brief, the GC also noted that the Stericycle framework produced a finding of liability against a standard employment confidentiality provision that, read in context, a reasonable employee would not understand to restrict Section 7 activity.

Neither brief specifies a precise replacement test. Both call for a "balanced and common-sense approach" that weighs employees' Section 7 rights against employers' legitimate business interests without presuming unlawfulness from the mere possibility of a coercive reading.

Union Insignia and Dress Codes: Overruling Tesla

In a Starbucks case (June 17, 2026), the GC filed exceptions to an ALJ decision that applied Tesla, Inc., 371 NLRB No. 131 (2022), and found that Starbucks had demonstrated the "special circumstances" necessary to justify its neutral dress code restricting logos and graphics on employee shirts. The GC does not dispute the outcome favorable to Starbucks but objects to the framework used to reach it.

Tesla requires employers to prove "special circumstances" whenever a facially neutral dress code limits the display of union insignia, effectively treating such policies as presumptively unlawful. The GC argues that this inverts the proper analysis by requiring employers to justify neutral, evenhandedly applied attire policies that do not single out union insignia at all. The GC further argues that Tesla misreads Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which calls for context-specific balancing rather than a categorical presumption of illegality. The GC also points to the practical consequences: the same Starbucks dress code has produced conflicting ALJ rulings at different store locations, illustrating how the "special circumstances" standard lacks administrable contours.

The GC urges the Board to overrule Tesla and return to Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019). Under Wal-Mart, the GC argues, neutral and nondiscriminatory dress codes are lawful on their face; liability attaches only where a policy targets union insignia, discriminates in enforcement, or restricts insignia beyond reasonable size, placement, and presentation limits. Applying that standard, the GC contends Starbucks' policy is lawful without resort to a special-circumstances analysis.

Employer Campaign Speech: Urging Reversal of Amazon.com and Siren Retail

A fourth set of overrule requests appeared as footnotes in the GC's motion to withdraw exceptions in UPS Supply Chain Solutions, Inc. (32-CA-295913 and 32-CA-297314, May 13, 2026). There, Counsel for the General Counsel withdrew all exceptions filed under prior GC Jennifer Abruzzo, including exceptions concerning captive audience meetings and employer predictions about the impact of unionization, on the ground that the Board's intervening decisions in Amazon.com Services LLC, 373 NLRB No. 136 (2024), and Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), had effectively resolved those issues against the GC's position. Both decisions were given prospective-only effect.

While withdrawing the exceptions, the GC stated in footnotes that the current office urges the Board to reverse both decisions. With respect to Amazon.com, which held that mandatory employee meetings about unionization violate Section 8(a)(1) unless employees are informed their attendance is voluntary and carries no threat of retaliation, the GC urges reversion to Babcock & Wilcox, 77 NLRB 577 (1948), which the brief describes as "properly decided . . . more than seven decades ago." With respect to Siren Retail, which created a new test for evaluating whether employer predictions about the impact of unionization on the individual employee-employer relationship constitute unlawful threats, the GC urges reversion to Tri-Cast, Inc., 274 NLRB 377 (1985). The GC characterizes Tri-Cast as correctly decided and frames both Amazon.com and Siren Retail as departures from well-settled law.

These filings represent a coordinated effort by the current GC's office to present the Board with vehicles for revisiting a cluster of decisions issued between 2022 and 2024. With the exception of the Starbucks dress code case, in which the GC filed its own exceptions after an ALJ ruling favorable to the employer, each brief was filed in response to a respondent employer's exceptions to an adverse ALJ ruling. In each instance, rather than defending the ALJ's application of existing precedent, the GC has joined the employer in arguing that the underlying rule should be changed.

The Oil Man Corporation (D/B/a Enright & Sons), 374 NLRB No. 136, 04-CA-368560 (Published Board Decision)

The Board granted a default judgment against The Oil Man Corporation, an HVAC contractor in Sewell, New Jersey, finding it violated Section 8(a)(5) and (1) of the NLRA by refusing to sign a successor collective bargaining agreement it had already reached with Sheet Metal Workers Local 19.

The underlying facts, deemed admitted by default, are straightforward: the parties reached complete agreement on contract terms on June 10, 2025, and the Union requested execution beginning July 1, 2025. The company simply refused to sign.

The more contested issue was whether the Respondent had good cause for missing the deadline to answer the complaint. The company argued it never received the complaint and that its attorney missed deadlines due to illness. The Board rejected both claims. On notice, the record showed the complaint was successfully served electronically to both the company and its attorney, even though neither opened the emails. On illness, the Board acknowledged the attorney's personal circumstances but held they did not excuse the failure to request an extension of time, noting that a simple extension request could have been made in the attorney's own April 8 reply email to the Region. The attorney then failed to respond at all to the Region's April 10 follow-up.

The Board reiterated established doctrine on each of the Respondent's arguments: inadvertent inattention of counsel does not establish good cause; a claimed meritorious defense is irrelevant absent a showing of good cause; and prejudice to the General Counsel need not be shown to enforce the Board's procedural rules.

The remedy orders the company to execute the agreement with retroactive effect to July 1, 2025, make employees whole for lost earnings and other direct or foreseeable pecuniary harms under Thryv, and compensate employees for adverse tax consequences of any lump-sum backpay awards.

Significant Cases Cited

• King Courier, 344 NLRB 485 (2005): Inadvertent inattention of counsel is not sufficient to establish good cause for failing to file a timely answer under Board Rules Section 102.20.

• South Atlantic Trucking, 327 NLRB 534 (1999): It is not necessary to show prejudice to the General Counsel to require a respondent to comply with the Board's procedural rules.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established that respondents must compensate affected employees for direct or foreseeable pecuniary harms beyond traditional backpay.

• New Horizons, 283 NLRB 1173 (1987): Sets the interest rate applicable to backpay awards.

• Kentucky River Medical Center, 356 NLRB 6 (2010): Requires that interest on backpay be compounded daily.

Endurance Environmental Solutions, LLC, JD-41-26, 28-CA-278714 (ALJ Decision)

An administrative law judge found that a Las Vegas waste hauling company engaged in a sustained campaign of unlawful retaliation against union-supporting drivers spanning more than two years, beginning when workers first organized and continuing well after a majority voted to unionize.

Endurance Environmental Solutions operated a fleet of truck drivers who hauled trash and recycling from pickup locations to an Apex landfill. When employees began organizing with Teamsters Local 631 in early 2021, the company became aware of the campaign almost immediately. What followed, the ALJ found, was a pattern of coercive conduct and discriminatory discipline directed at the workers most visibly involved.

Surveillance and Coercion

On the day after about 25 employees held an off-site union meeting in a local park, a supervisor asked a driver how "the meeting" went, repeating the question when the driver feigned ignorance. Around the same time, an operations manager texted a leading organizer to say he had not been invited to the "party" at the park, signaling that management had an informant feeding it information about employees' union activities. The ALJ found both interactions unlawfully created the impression of surveillance. The text exchange also crossed into unlawful interrogation when the manager asked whether shop employees were involved in the campaign, and into unlawful solicitation of grievances when he asked what the "real problem" was behind the organizing effort — an inquiry the Board treats as an implied promise to remedy employees' complaints.

At a meeting in June 2021, the company further violated the NLRA when a regional manager introduced hired labor consultants to a driver by saying they were "advisors with the Union or the National Labor Board." The ALJ found that misidentification had a reasonable tendency to coerce because the driver could reasonably but mistakenly assume the consultants were neutral or pro-union, when they were actually retained to help the company oppose the campaign. The consultants also unlawfully solicited grievances during the meeting by inviting employees to tell them "what some of the problems are."

Working Condition Changes

Beginning in May 2021, shortly after the organizing campaign became known to management, the company made a series of changes to drivers' working conditions. It moved truck keys from assigned vehicles to the office, requiring drivers to wait until the exact start of their shift to retrieve them. It altered shift schedules in ways that pushed some drivers into heavier daytime traffic, reducing the number of loads — and therefore pay — they could complete in a shift. One key organizer saw his shift start time changed twice in two weeks, cutting his load count from eight or nine to six. Later changes included assigning damaged equipment, dispatching drivers to stations with longer wait times, and requiring shifts beyond the customary 12 hours. The ALJ found all of these changes were motivated by anti-union animus and violated Section 8(a)(3).

Discipline and Discharge

The company disciplined union supporters for conduct it had previously tolerated or ignored. Luis Garibay, Sr., who had initiated the organizing campaign, received a verbal warning for declining a long-distance pickup near the end of his shift after a supervisor had already approved his decision. He was written up for arriving 45 minutes late when Respondent had no prior practice of disciplining employees for tardiness. He was suspended for leaving when his assigned truck was unavailable at shift start, a departure the night supervisor had approved. He was suspended again for not wearing a hard hat at a pickup station, even though managers had routinely observed drivers without hard hats in the same circumstances and said nothing. He was ultimately terminated in December 2021 for using profanity — describing a complaint about his equipment to a mechanic — while the company had never before disciplined employees for profanity and had not acted when another driver directed profanity at a supervisor months earlier.

Martin Tapia, who served on the union's bargaining team and signed a collective letter to the Board, received a written warning in February 2022 for driving a trailer with broken leaf springs that he had not detected during his pre-trip inspection — a type of equipment issue for which the company had no pre-campaign history of issuing discipline.

Yaniel Cervantes was fired in June 2022 after his truck axle broke when he hit a pothole at the landfill. The company conducted minimal investigation and did not discipline another driver who experienced similar axle damage a week earlier, a driver who was not a union supporter. The ALJ found the disparate treatment was evidence of discriminatory motive.

Luis Garibay, Jr., who supported the union from early in the organizing campaign and participated in a one-day strike over bargaining delays, accumulated discipline over 2022 and 2023 for a series of equipment and conduct incidents — including accidentally bumping a boulder, a trailer rolling back into a nearby truck while machinery was compacting trash, and falling asleep in his cab while waiting in a lengthy landfill line. The ALJ noted the company had previously tolerated drivers napping while waiting in line and had not placed employees on probation before the organizing campaign. The discharge in April 2023 was further tainted because it was based in part on the unlawful 60-day probation the company had imposed the prior month.

Information Request

Starting in December 2022, the union requested data on employees' paid sick time balances and the sick time paid out to one specific driver. The company deflected and never provided the information. Since sick time is a term and condition of employment for bargaining unit members, the information was presumptively relevant to the union's role as collective bargaining representative, and the failure to provide it violated Section 8(a)(5).

Respondent's counsel withdrew from the case just weeks before trial, and the company did not appear at the hearing, present witnesses, or file a post-trial brief. The ALJ declined to draw sweeping adverse inferences from the company's subpoena noncompliance, finding the General Counsel's unrebutted evidence sufficient on its own. The remedy includes reinstatement and backpay for the three discharged employees, make-whole relief for suspensions and working condition changes, expungement of unlawful disciplinary records, and production of the withheld sick-time information.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for mixed-motive discrimination cases under the NLRA, requiring the General Counsel to show union activity was a motivating factor, then shifting the burden to the employer to show it would have taken the same action absent the protected activity.

• Rossmore House, 269 NLRB 1176 (1984): Set forth the totality-of-circumstances test for evaluating whether employer interrogation of employees about union activities is unlawfully coercive.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's make-whole remedy to include compensation for all direct or foreseeable pecuniary harms resulting from unlawful conduct, not just lost wages.

• Mek Arden, LLC d/b/a Post Acute Rehab, 365 NLRB 1065 (2017): Held that soliciting grievances during a union organizing campaign inherently constitutes an implied promise to remedy them, unless the employer rebuts that inference with evidence of a prior practice.

• Care Manor of Farmington, Inc., 318 NLRB 725 (1995): Held that a discharge decision is tainted and therefore unlawful when it relies on prior discipline that was itself unlawful.

Amazon.com Services, LLC, JD-39-26, 20-CA-353378 (ALJ Decision)

An administrative law judge has found that Amazon violated Section 8(a)(5) of the NLRA by refusing to recognize the Teamsters at its DCK6 delivery warehouse in San Francisco and failing to file an RM-petition after the union presented a majority card showing. The ALJ acknowledged it is the first case fully litigated under the framework established in Cemex Construction Materials Pacific, LLC, which created a new path to union recognition without a Board election.

The Teamsters formed an organizing committee at DCK6 in 2023, and by the fall of 2024 had gathered signed authorization cards from 80 of the facility's 121 Tier 1 warehouse associates, representing roughly 66 percent of the proposed unit. On October 2, 2024, union supporters gathered in the DCK6 break room around 3:00am, confronted the acting site lead, and presented a written demand for recognition. Amazon neither recognized the union nor filed an RM-petition within the two-week window Cemex requires. The union followed up with additional letters on October 17 and 18; Amazon did not respond to those either.

The ALJ found the authorization cards valid. Witnesses authenticated the signatures, and Amazon presented virtually no evidence of fraud or misrepresentation in the solicitation process. Under any count, a clear majority supported the union: even dropping three cards the union itself chose not to rely on, 77 of 121 Tier 1 associates had signed.

On unit appropriateness, the ALJ found the Tier 1 sortation associates formed a coherent, appropriate unit. They are the only employees at the L1 pay grade performing core warehouse tasks, wear different safety vests than process assistants, and are supervised by process assistants who carry laptops to monitor productivity and reassign workers. Amazon put on no evidence that the excluded employees shared an overwhelming community of interest with the Tier 1 workers, so the burden it bore to block the proposed unit went unmet.

Amazon argued that Cemex should not be followed, raising several legal challenges: that it conflicts with the Supreme Court's ruling in Linden Lumber Division, Summer & Co., that the Board used adjudication to announce a new generally applicable rule in violation of the Administrative Procedure Act, that the relevant Cemex language overruling Linden Lumber is non-binding dicta, and that allowing the Board to shift from one policy to the other violates the Major Questions and Non-Delegation Doctrines. The ALJ acknowledged these arguments as serious enough that they "could be persuasive" if the Board had not already considered and rejected each of them, noting that the Cemex dissent raised the same points. Because the Board majority directly addressed and rejected every one of these objections, the ALJ said he was bound to follow extant Board precedent and could not adopt the dissenter's reasoning.

The ALJ ordered Amazon to recognize and bargain with the Teamsters on request, with the bargaining obligation retroactive to October 2, 2024, the date of the union's initial demand.

Significant Cases Cited

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Overruled Linden Lumber and held that an employer violates Section 8(a)(5) by refusing to recognize a union that has demonstrated majority support unless the employer promptly files an RM-petition.

• Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971): Held that an employer confronted with a union recognition demand is not obligated to file its own election petition, allowing employers to simply decline recognition and force the union to pursue a Board election.

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Recognized that a Board election is not the exclusive method for establishing union majority status, since Section 9(a) does not specify how employee representatives must be chosen.

• American Steel Construction, Inc., 372 NLRB No. 23 (2023): Set out the Board's three-part test for determining whether a petitioned-for unit is appropriate, requiring a community of interest, ready identifiability as a group, and sufficient distinctness from excluded employees.

• Cumberland Shoe, 144 NLRB 1268 (1963): Established that an unambiguous authorization card is valid unless rendered invalid by solicitation that misrepresents the card's sole purpose.

American President Lines, LLC and APL Marine Services, Ltd., JD-40-26, 21-CA-347811 (ALJ Decision)

An ALJ found that a maritime employer violated the NLRA on three separate fronts involving a confidentiality policy and surveillance cameras installed on its new fleet of container ships.

Confidentiality Policy

American President Lines required licensed deck officers (LDOs) to sign an onboarding document containing two provisions: one directing employees to protect "APL proprietary information" and ensure non-APL information is handled appropriately, and a second prohibiting them from removing, copying, or emailing "any company document" without written permission from the Fleet Director. Applying the framework from Stericycle, the ALJ found the policy had a reasonable tendency to chill Section 7 activity because it swept in virtually all company documents, including those directly relevant to the employees' terms and conditions of employment.

The employer argued the policy served legitimate interests, pointing to LDOs' access to sensitive cargo manifests (including military shipments) and crew medical records. The ALJ acknowledged those interests but found the policy far too broad: it covered nonsmoking policies, social media policies, wage records, and timecards alongside genuinely sensitive materials, and the employer had not shown it could not protect its legitimate interests with a narrower rule. Because LDOs routinely shared ship logbooks and other documents with the Union to support grievances, including to prove a logbook had been altered after the Union filed a complaint, the policy had a real chilling effect. The Union's ability to investigate grievances slowed materially after the policy took effect. The ALJ found violations of both Section 8(a)(1) and 8(a)(5), the latter because the employer implemented the policy without any notice to or bargaining with the Union.

Camera Surveillance

When the employer phased in seven newly constructed 5500 class ships between mid-2024 and early 2025, each arrived with two inward-facing cameras on the bridge, covering the LDOs' entire work area around the clock. The live feed was visible on screens in the bridge and the cargo control office, where operators could zoom and reposition it. This was a significant departure from prior practice: the employer's older ships had cameras in the engine room (aimed at equipment, not workers), at exterior points like the gangway, bow, and stern, and, on some routes, outward-facing cameras for anti-piracy purposes. The ALJ credited testimony that the anti-piracy cameras on the bridge of older ships faced outward and at most caught "a little bit" of the bridge incidentally.

The employer maintained it had no duty to bargain because the ships were built under contract specifications agreed to in 2020 and flagged in from a foreign flag under a contractual provision the Union had agreed to accept ships "as is." The ALJ declined to reach the decision-bargaining question because the complaint alleged only a failure to bargain over effects. On that narrower question, the employer's argument failed: it had ample forewarning that the ships would have inward-facing bridge cameras (the specs were finalized years before the ships arrived), NLRB precedent firmly establishes that workplace cameras are a mandatory bargaining subject, and the employer neither gave the Union pre-implementation notice nor responded to the Union's May 30, 2024, bargaining request with anything other than a flat refusal. After the Union made repeated written requests and offered a specific bargaining date, the employer's labor relations director closed the door entirely, stating "I have nothing further on this subject." The ALJ found the employer's conduct mirrored the conduct found unlawful in Endurance Environmental Solutions, where the Board held that similar stonewalling justified a union's conclusion that further requests would be futile.

Information Requests

The Union submitted a detailed set of information requests alongside its bargaining demand. The employer responded partially and late, taking the position throughout that it had no bargaining obligation and providing only what it chose in the interest of "transparency." The ALJ worked through each request individually, sustaining most violations and dismissing a handful where the employer had provided responsive information.

Among the sustained violations: the employer never disclosed the location or number of cameras on its older ships (information relevant to whether the new ships represented a change), never answered whether it intended to discipline employees based on camera footage, never provided its camera policies or the Coast Guard regulation it claimed barred their release, and never disclosed who was responsible for the data or what duties, if any, the captain and other LDOs bore with respect to the cameras. The employer also failed to supply information about the make and model of the cameras or answer training-related requests about the non-Safer Seas Act cameras. The ALJ dismissed a smaller number of requests where the employer's responses were found adequate, including requests about who could see the live feed and how the cameras operated.

The remedy requires the employer to rescind the confidentiality provisions, make whole any employees terminated under them, bargain with the Union on request over the camera effects, and supply the outstanding information. The ALJ declined to impose a Transmarine bargaining remedy for the camera violations, finding no economic losses to employees resulted from the installation.

Significant Cases Cited

• Stericycle Inc., 372 NLRB No. 113 (2023): Established the current two-step test for evaluating facially neutral work rules, under which a rule is presumed unlawful if it has a reasonable tendency to chill Section 7 activity unless the employer shows a legitimate and substantial business interest that cannot be served by a narrower rule.

• Anheuser-Busch, Inc., 342 NLRB 560 (2004): Held that the installation and use of surveillance cameras to observe employees at work is a mandatory subject of bargaining, particularly where the footage may be used to discipline employees.

• First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Established that employers have a statutory duty to bargain over the effects of a managerial decision on employees even when they have no obligation to bargain over the decision itself.

• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Found an employer violated Section 8(a)(5) by refusing to engage in effects bargaining over workplace cameras and holding that a union need not make repeated futile requests to bargain when the employer has made its refusal clear.

• Willamette Tug & Barge Co., 300 NLRB 282 (1990): Held that where the effects of a management decision on working conditions are reasonably foreseeable, the employer's duty includes giving the union pre-implementation notice to allow time for effects bargaining.

Dawn Trucking Inc., JD-38-26, 29-CA-171337 (ALJ Decision)

A Brooklyn trucking company's sole owner has been found personally liable for over $330,000 in backpay owed to six drivers he illegally fired for supporting a Teamsters union, after an administrative law judge determined he systematically drained the company's assets to avoid paying the debt.

The underlying violations were decided nearly a decade ago. In 2017, the Board found that Henry Burey, owner of Dawn Trucking, had unlawfully discharged six drivers after Local 282 won a representation election in November 2015, conditioned reinstatement offers on their rejection of the union, and bypassed the union to deal directly with employees. The Board ordered backpay, and the Second Circuit enforced that order in 2018. By the time a compliance proceeding was filed in 2025, Dawn Trucking was insolvent and unable to pay.

The central question in this supplemental proceeding was whether Burey could be held personally responsible for satisfying the company's remedial obligations, a remedy available when the "corporate veil" is pierced under the Board's standard from White Oak Coal Co.

The ALJ found the evidence overwhelmingly supported piercing the veil on both required elements. First, the personalities and finances of Burey and Dawn Trucking were effectively indistinguishable. Burey used company funds to make monthly loan payments on three personally owned vehicles (a Mercedes, Honda, and Toyota) throughout 2016 and 2017. He charged his personal homeowner's insurance in Port St. Lucie, Florida, to the company's American Express card. He used that same corporate card for personal expenditures at Home Depot, Sam's Club, Walmart, and a pool supply store after moving to Florida. He paid his personal Barclaycard credit card bills from the corporate account nine times. He and his wife received over $800,000 in "profit distributions" with no documentation explaining how those amounts were calculated, and his wife, who was not even a shareholder, received $465,000 of that total. Numerous other checks to family members, including his daughters, were entirely unexplained. The company held only two corporate meetings across its entire 18-year existence.

The ALJ found Burey himself to be an unreliable witness. His professed inability to recall the basis for hundreds of thousands of dollars in disbursements went well beyond normal fading of memory. His explanations for personal charges on corporate accounts, including that Florida fuel and grocery purchases might relate to company business after he had already testified the company shut down in July 2017, were described as "patently implausible." His own statements at the hearing, such as characterizing a corporate loan as "my wife lent me the money" and reasoning that a driver in Florida "has to be related to the company because he's working for me," demonstrated that he treated himself and the corporation as one and the same.

Second, the ALJ found that adhering to the corporate form would promote injustice. Burey personally committed the underlying unfair labor practices, and then, after charges were filed and after the ALJ's initial decision issued against him, continued redirecting corporate assets, including $210,000 from truck sales, through profit distributions and personal expenditures, leaving the company unable to satisfy its remedial obligations. The ALJ rejected Respondents' argument that the six-month statute of limitations in Section 10(b) of the NLRA barred the proceeding, noting the Board has long held that provision does not apply in compliance proceedings. The ALJ also rejected the argument that asset diversion is permissible after a company ceases operations, noting that creditors and those with valid claims may follow corporate assets even after distribution to shareholders.

Burey and Dawn Trucking were ordered jointly and severally to pay a total of approximately $330,919 to the six discriminatees.

Significant Cases Cited

• White Oak Coal Co., 318 NLRB 732 (1995): Established the two-part Board standard for piercing the corporate veil, requiring a unity of interest between the individual and corporation and a showing that adherence to the corporate form would sanction fraud, promote injustice, or lead to evasion of legal obligations.

• Domsey Trading Corp., 357 NLRB 2161 (2011): Held that corporate principals may not dissolve a corporate entity and walk away from backpay obligations owed to employees as a result of statutory violations.

• D.L. Baker, Inc., 351 NLRB 515 (2007): Held that no specific showing of corporate insolvency is required for veil-piercing if the natural and foreseeable consequence of individual misuse of corporate assets is to diminish the corporation's ability to meet its statutory obligations.

• Bolivar Tees, Inc., 349 NLRB 720 (2007): Found that a principal's personal usurpation of corporate assets satisfied the fraud or injustice element of the veil-piercing standard, and held that after cessation of operations a corporation's officers retain responsibility to preserve assets for remedying unfair labor practices.

• Rome Electrical Systems, Inc., 356 NLRB 170 (2010): Applied the White Oak standard to find personal liability where a corporate owner used company funds for personal country club membership fees and failed to maintain adequate corporate records beyond initial incorporation documents.

HPC Industrial Group, LLC, Formerly Known as Hydrochem Industrial Cleaning LLC, JD-37-26, 07-CA-308650 (ALJ Decision)

A contract cleaner working at a Ford Motor Company plant was fired in August 2022 after a minor forklift accident, in part because he refused to go to an employer-mandated drug and alcohol test without a union representative. The ALJ found that the refusal was a material reason for the termination, and that the General Counsel met its initial burden under the Wright Line framework. But the complaint was dismissed because the union waived the employee's Weingarten rights through its handling of the grievance.

The accident itself was minor: Marlon Hemmingway struck an overhead beam while operating a Ford-owned forklift he had borrowed because HPC's own forklift was inoperative. No one was injured and the only damage was a displaced fog light. A Ford witness noted that Hemmingway was not impaired. When supervisors later directed him to the plant clinic for a post-accident drug and alcohol test, Hemmingway asked for his union steward to accompany him. He was told no union representative was required. He refused to go alone, and HPC's branch manager decided to terminate him.

On the substantive Weingarten question, the ALJ declined to resolve whether an automatic post-accident drug test constitutes an "investigatory interview" triggering the right to union representation under NLRB v. J. Weingarten, Inc. The ALJ noted the absence of binding precedent and observed that such a test can reveal drug use and raise legitimate concerns about specimen handling, even when the employer lacks a reasonable suspicion of impairment. Applying Manhattan Beer Distributors, the ALJ concluded that HPC violated the Act by discharging Hemmingway for exercising what appeared to be a valid Weingarten request, and that the company failed to show it would have fired him regardless.

The case turned on waiver. The union filed a grievance on Hemmingway's behalf but never argued that his Weingarten rights had been violated, either in the grievance form or at any step of the process. At step three of the grievance procedure, the union accepted HPC's termination decision without pressing the union-representation issue. The union also never filed an unfair labor practice charge of its own.

The ALJ applied the "clear and unmistakable" waiver standard under Endurance Environmental Solutions, which the Board reinstated in 2024 after a period under the looser "contract coverage" doctrine established by M.V. Transportation. The collective bargaining agreement and an MOU between HPC and UAW Local 600 addressed post-accident testing procedures but said nothing about whether an employee could bring a union representative to the clinic. There was also no history of any employee before Hemmingway ever requesting union representation for post-accident testing.

Given that the grievance identified Hemmingway's "failure to follow supervisor instructions" as a basis for the discharge, and that his only refusal was to go to the clinic without a union representative, the ALJ found the union was aware of the Weingarten issue and made a conscious decision not to pursue it. Whether or not the union received anything in exchange for accepting the termination, that decision constituted a clear and unmistakable waiver of Hemmingway's rights. The complaint was dismissed.

Significant Cases Cited

• NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Established that employees have the right to union representation during investigatory interviews that the employee reasonably believes may result in discipline.

• Wright Line, 251 NLRB 1083 (1980): Set the burden-shifting framework for mixed-motive discharge cases, requiring the General Counsel to show protected activity was a motivating factor and the employer to prove it would have acted the same absent that activity.

• Manhattan Beer Distributors, 362 NLRB 1731 (2015): Held that an employer violates the NLRA by denying union representation at a drug test and by discharging an employee for refusing to take the test without a representative present.

• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Overruled M.V. Transportation and reinstated the "clear and unmistakable" waiver standard for determining whether a union has waived statutory bargaining rights through a contract or its conduct.

• Prudential Insurance Co., 275 NLRB 208 (1985): Held that a union may waive a bargaining unit member's statutory Weingarten rights.

Laborers International Union of North America, Local 872, AFL-CIO (Various Employers, Including The, 28-CB-239339 (Unpublished Board Decision)

The Board denied Laborers Local 872's motion for reconsideration of its earlier decision in this case, finding that the union failed to identify any material error or extraordinary circumstances as required under the Board's rules for reconsideration to be granted.

The order notes that Member Prouty recused himself and took no part in the decision, leaving Chairman Murphy and Member Mayer as the deciding panel. A footnote addresses the procedural validity of a two-member panel acting in this posture, citing New Process Steel, L.P. v. NLRB for the proposition that when one panel member is disqualified, the remaining two members retain a quorum sufficient to issue a decision.

Significant Cases Cited

• New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010): Held that the NLRA's group quorum provision allows a three-member panel to issue decisions with only two members when one member is disqualified.

• NLRB v. New Vista Nursing & Rehabilitation, 870 F.3d 113 (3d Cir. 2017): Applied New Process Steel to uphold the validity of two-member panel decisions where one member was recused.

• D. R. Horton, Inc., 357 NLRB 2277 (2012): Recognized the Board's practice of proceeding with a two-member quorum when a panel member is disqualified.

According to NLRB election data, Starbucks workers have now won 700 elections since the Starbucks unionization campaign began in 2021. Adding up the number of workers deemed eligible for such elections reveals that over 15,000 workers are now in the Starbucks union.

New York leads the country with 63 union elections.

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