<![CDATA[NLRB Edge]]>https://www.nlrbedge.comhttps://substackcdn.com/image/fetch/$s_!CHxc!,w_256,c_limit,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2Fe21596fe-7463-45ed-922c-1ddab26be994_480x480.pngNLRB Edgehttps://www.nlrbedge.comSubstackThu, 11 Jun 2026 14:37:51 GMT<![CDATA[06/10/2026: Board Pierces Corporate Veil in Default $3.6 Million Judgment]]>https://www.nlrbedge.com/p/06102026-board-pierces-corporatehttps://www.nlrbedge.com/p/06102026-board-pierces-corporateWed, 10 Jun 2026 14:25:56 GMT

Ampersand Publishing, LLC D/B/a Santa Barbara News-Press, 374 NLRB No. 129, 31-CA-028589 (Published Board Decision)

The Board issued a default judgment against the former owners of the Santa Barbara News-Press and associated entities, ordering them to pay approximately $3.6 million in back pay, expenses, and bargaining costs stemming from unfair labor practices that were litigated years ago.

The underlying violations were resolved in a 2021 supplemental order — later enforced in full by the Ninth Circuit — that required the newspaper’s parent company, Ampersand Publishing, to make employees and the Graphic Communications Conference/Teamsters whole for lost wages, improperly assigned unit work, and bargaining costs. After Ampersand filed for Chapter 7 bankruptcy in July 2023, questions arose about who remained responsible for satisfying those obligations.

The Regional Director’s March 2025 compliance specification added two real estate holding companies — 715 Anacapa, LLC and 725 Kellogg, LLC — and newspaper owner Wendy McCaw personally as respondents. The specification alleged that all three entities operated as a single employer with Ampersand, sharing ownership, management, premises, and equipment. As for McCaw individually, the specification alleged grounds for piercing the corporate veil: she had transferred more than $1.3 million from Ampersand to entities she controlled or directly to herself, commingled funds, and failed to maintain arm’s-length dealings — conduct that allegedly rendered Ampersand insolvent and constituted a fraud on its creditors.

None of the respondents filed an answer, prompting the Board to enter default judgment and deem all allegations admitted. The Board found the three LLCs jointly and severally liable as a single employer and held McCaw personally liable, ordering all respondents to pay the combined $3,602,579 total, plus compounded daily interest.

Member Prouty noted his view — consistent with his earlier dissent in California Truck Driving Academy — that the motion should have been denied without prejudice pending confirmation of proper service, but he was in the minority on that point.

Significant Cases Cited

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JSK Parsippany, LLC, 374 NLRB No. 124, 22-CA-305280 (Published Board Decision)

The Board found that two successive owners of a Parsippany, New Jersey hotel systematically tried to eliminate the union representing their housekeeping and maintenance staff. The first owner, JSK, defaulted and was found liable without a hearing. The second, Fairfield, litigated and lost on nearly every issue.

The central story is straightforward: when Fairfield took over the hotel in August 2023, it hired nine of the fifteen bargaining unit employees — keeping all of JSK’s anti-union hires while turning away the six most senior, openly pro-union workers. The Board found this was deliberate discrimination under the Wright Line framework, and that Fairfield’s claim it had always intended to contract out the housekeeping work rang hollow given that it didn’t actually do so until four months later. A private indemnification agreement Fairfield had signed with JSK — apparently an attempt to shift liability — provided no protection, as the Board reaffirmed that private contracts cannot limit its authority to remedy NLRA violations.

Because Fairfield took over operations without setting its own employment terms before the union made a bargaining demand, it was required under NLRB v. Burns and Fall River Dyeing to maintain the terms of JSK’s expired contract as the status quo. It failed to do so across the board — refusing to recognize the union, stopping dues checkoff, blocking union representatives from entering the facility, terminating the six pro-union employees in December 2023, and refusing to provide basic information the union needed to represent its members.

An additional violation arose when testimony revealed that Fairfield’s attorney had interviewed employees about their union views before the hearing without telling them their participation was voluntary or that they wouldn’t face retaliation — the assurances required under Johnnie’s Poultry.

The Board’s most notable independent action came in the remedy footnotes. Chairman Murphy and Member Mayer applied the expanded Thryv make-whole remedy — which covers out-of-pocket losses beyond lost wages — but explicitly flagged their doubts about whether it is legally permissible, leaving open the possibility of reconsideration if a three-member majority forms to revisit it. They took the same reserved-but-compliant approach to Valley Hospital Medical Center, which requires employers to continue dues checkoff even after a contract expires.

Significant Cases Cited

Starbucks Corporation, 374 NLRB No. 130, 19-CA-295708 (Published Board Decision)

The Board affirmed most of ALJ Andrew Gollin’s rulings in a case arising from Starbucks’ response to union organizing at four Portland, Oregon stores in 2022, sustaining violations related to unlawful discipline of two employees and an unlawful unilateral change to dress code enforcement, while dismissing the remaining allegations.

What the Board found unlawful. The Board upheld the ALJ’s finding that Starbucks violated Section 8(a)(3) and (1) by issuing final written warnings to baristas Trey Hawthorne and Chloe Peterson. The Hawthorne violation was straightforward: Starbucks accused him of working off the clock, but surveillance video showed he was not in the store during the alleged timeframe. The Board agreed with the ALJ that the stated reason was pretextual, particularly given that management had separately questioned Hawthorne about a pro-union tweet during an investigatory meeting. Peterson’s warning was tainted because it was partly premised on the allegation that she, as the supervising shift employee, had allowed Hawthorne to work off the clock — the same sham basis underlying his discipline.

The Board also upheld the Section 8(a)(5) violation involving barista Steven Sherman. Starbucks had historically handled dress code violations through verbal coaching, but issued Sherman a written “documented coaching” without first notifying the union or offering to bargain. The Board rejected Starbucks’ argument that under Care One at New Milford, 369 NLRB No. 109 (2020), no bargaining was required because the discipline was discretionary. Care One only protects discretionary discipline applied consistently with an employer’s established practice — here, issuing written discipline was itself a departure from that practice, bringing it squarely under NLRB v. Katz, 369 U.S. 736 (1962).

What was dismissed. The Board affirmed the ALJ’s dismissal of most other allegations. A threat to withhold announced wage and benefit increases, attributed to then-assistant store manager Jude Mackintosh, failed because the General Counsel did not establish that Mackintosh was a statutory supervisor under Section 2(11) or an agent with actual or apparent authority under Section 2(13) — her job title alone was insufficient, and there was no evidence management had used her as a conduit for communicating on these topics. Discharge and discipline claims involving employees Matthew Thornton, Arthur Pratt, and Brian Mendez were dismissed under Wright Line, 251 NLRB 1083 (1980), because the credited evidence showed Starbucks would have taken the same actions regardless of union activity — each had documented, recurring policy violations. A selective enforcement claim involving SSV Alicia Flores similarly failed because the evidence did not show the company had enforced its Register Operation and Customer Transactions policy more strictly after the union arrived.

Member Mayer dissented on the Sherman dress code violation, concluding that Sherman’s persistent and deliberate noncompliance — continuing after multiple verbal warnings — distinguished his situation from other employees and did not represent a change in enforcement practice.

Significant Cases Cited

Starbucks Corporation, 374 NLRB No. 128, 19-CA-299573 (Published Board Decision)

The Board affirmed an ALJ’s finding that Starbucks violated Section 8(a)(1) of the NLRA by coercively interrogating employees about their plans to participate in strikes at three Seattle-area stores in 2022.

The underlying facts were straightforward. After employees at the 5th & Pike, Westlake, and 505 Union Station stores sent strike notices to management, Starbucks supervisors — including a district manager, a store manager, and an assistant store manager — called and texted employees to ask whether they planned to work their scheduled shifts. None of the supervisors explained why they were asking or told employees they would face no consequences for their answers.

The core legal question was whether those inquiries constituted unlawful interrogation. The Board applied the framework from Preterm, Inc. and the totality-of-circumstances test from Rossmore House, finding violations under both. Asking employees whether they intend to work during a strike is functionally asking whether they intend to strike — conduct the Board has long treated as inherently coercive. Under Preterm and its progeny, an employer may ask employees about strike plans only if it simultaneously explains the purpose of the inquiry, assures employees there will be no retaliation, and avoids creating a coercive atmosphere. Starbucks did none of those things.

The Board rejected Starbucks’s argument that the Preterm safeguards amount to an impermissible per se rule, applying the majority’s reasoning from Sunbelt Rentals, Inc. (with Chairman Murphy and Member Mayer noting they participated for institutional reasons only). The Board also rejected Starbucks’s reliance on Mosher Steel Co. (1975), agreeing with the ALJ that the case does not support a rule permitting unconditioned staffing inquiries and that more than four decades of Board law have since required the Preterm safeguards.

In assessing the Rossmore House factors, the Board relied on Starbucks’s prior adjudicated unfair labor practices — including prior Board decisions finding unlawful discharges, threats, and surveillance of the same workforce — as evidence of the coercive context in which the interrogations occurred. The Board expressly declined to rely, as the ALJ had, on “perceived” unfair labor practices asserted in the strike notices, grounding its analysis instead in the company’s actual prior violations.

The Board issued a narrow cease-and-desist order and required notice posting at the two open stores and mailing to former employees at the closed 505 Union Station location.

Significant Cases Cited

Layla Transportation, Inc. A/K/a Layla Transportation and Trading, Inc., JD-36-26, 22-CA-325151 (ALJ Decision)

A New Jersey school bus company violated the NLRA by stonewalling contract negotiations and then illegally polling its workforce on union support, an ALJ ruled.

Layla Transportation had recognized Teamsters Local 469 under a 2019 settlement agreement and spent nearly three years bargaining toward a first contract, with only wages, union security, and contract duration left to resolve. The relationship broke down in late 2022, when the company disclosed it had been paying employees roughly $5 per hour more than what the parties had been using as the basis for their wage discussions — a disparity the union called an unfair labor practice. After a January 2023 session where the company’s owner left before the wage issue could be addressed, Respondent’s counsel repeatedly told the union she needed to check with the client and would follow up — but never did. From March through August 2023, no substantive response ever came. ALJ Gardner found that pattern reflected “an unlawful intent to stall negotiations,” citing Sunbelt Rentals, Inc., and constituted a refusal to bargain in good faith under Section 8(a)(5) and (1).

The company then sent the union a letter in October 2023 announcing it would poll employees about their desire for union representation. The ALJ found the poll independently unlawful on two grounds.

First, the company lacked the required “good faith reasonable belief” that the union had lost majority support. Under Struksnes Construction Co., an employer must have sufficient objective evidence of lost support before polling. The company’s owner pointed to conversations with dissatisfied employees stretching back to 2019, but many of those employees had long since left the company, some accounts were secondhand, and the total number of current employees who expressed opposition near the time of the poll was, by the owner’s own sworn affidavit, just two out of more than thirty unit employees. ALJ Gardner credited the union’s position that stale or remote expressions of dissatisfaction — and hearsay accounts — cannot support an employer’s good faith doubt, citing Wagon Wheel Bowl, Inc.

Second, even assuming a valid basis existed, the poll failed to satisfy the procedural safeguards Struksnes requires. The company presented no firsthand witness who could confirm that the secret-ballot requirement was actually met in the polling room. More significantly, the company’s dispatcher — a management figure — was stationed in an adjacent office throughout the polling, and employees knew he was there. The ALJ found his proximity created a coercive atmosphere, failing the fifth Struksnes safeguard. Most critically, the poll was conducted against the backdrop of the company’s ongoing refusal to bargain — itself an unremedied unfair labor practice — which independently rendered the poll coercive and unlawful.

The ALJ ordered Layla to cease its bargaining refusal and unlawful polling and to bargain on request with the union over the unit of school bus drivers, attendants, and lot employees at its Piscataway facility.

Significant Cases Cited

  • Struksnes Construction Co., 165 NLRB 1062 (1967): Established the five-part test an employer must satisfy to lawfully poll employees about their union support, including the threshold requirement of objective evidence that the union has lost majority status.

  • Sunbelt Rentals, Inc., 370 NLRB No. 102 (2021): Held that an employer’s multi-month refusal to submit a wage counterproposal, even after engaging on other economic issues, constituted bad faith bargaining.

  • Wagon Wheel Bowl, Inc., 310 NLRB 915 (1993): Held that employee statements of dissatisfaction that are remote in time do not constitute the kind of “objective, identifiable acts” needed to support an employer’s good faith doubt about a union’s majority status.

  • Burns International Security Services, 225 NLRB 271 (1976): Established that the burden falls on the employer to affirmatively prove each Struksnes safeguard was satisfied, against a background free from coercion.

  • Atlanta Hilton & Tower, 271 NLRB 1600 (1984): Articulated the standard that the duty to bargain in good faith requires a “sincere purpose to find a basis of agreement” and that employers must make a reasonable effort to resolve differences with the union.

Foss Maritime Company, LLC, 19-RC-386775 (Regional Election Decision)

Region 19 Regional Director Ronald K. Hooks has directed a mail ballot election among six line superintendents at Foss Maritime Company’s Seattle and Tacoma facilities after the Inlandboatmen’s Union of the Pacific filed a petition seeking to represent the workers. The only dispute was whether the election should be conducted by mail or in person.

Applying the standard from San Diego Gas and Electric, Regional Directors have broad discretion in choosing election method and may order mail ballots where circumstances make in-person voting difficult — including where employees are geographically scattered, work irregular schedules, or where a manual election would be an inefficient use of Board resources.

The Regional Director found mail balloting appropriate on two grounds. First, the employees work rotating on-call schedules under which only one person is on duty at each facility at any given time, making it unlikely that most employees would be available to vote during a fixed polling window. Second, committing Board personnel to two separate polling sites roughly 30 miles apart — with no guarantee anyone would be present to vote — would not be an efficient use of Agency resources.

The union argued that the 30-mile distance between facilities was insufficient to constitute “scattered” employees under San Diego Gas and Electric, and that workers were willing to cover each other’s shifts to allow in-person voting. The Regional Director rejected that argument, noting the employer had not agreed to allow shift coverage and that the union’s proposed one-hour polling windows might not give on-duty employees — who can be dispatched to a job site up to 20 minutes away — sufficient time to vote.

Significant Cases Cited

Lutheran Home for the Aged Association - East D/B/a Davenport Lutheran Home, 25-RC-379991 (Regional Election Decision)

UFCW Local 431 petitioned to represent approximately 19 registered nurses and licensed practical nurses at a Davenport, Iowa long-term care facility. The employer argued the nurses are statutory supervisors under Section 2(11) of the NLRA and ineligible for union representation. Regional Director Colleen Maples disagreed and directed an election.

Under Oakwood Healthcare, Inc., a worker is a supervisor if they hold authority over any of twelve listed functions — assigning, disciplining, directing, and the like — exercise that authority using independent judgment, and act in the employer’s interest. The employer bears the burden of proof with specific, detailed evidence.

The employer argued nurses supervised CNAs and CMAs in all the ways that matter. The Regional Director found the evidence too thin or conflicting on every count. Nurses adjusted a pre-prepared daily schedule when CNAs called out, but those moves were constrained by the collective-bargaining agreement and a management-prepared seniority list — not independent judgment. The discipline record consisted of a handful of counseling forms (largely serving a reporting function) and two progressive discipline instances, both occurring days before the petition was filed; nurses also lacked access to personnel files, making meaningful progressive discipline impossible without management. The two instances where nurses sent employees home were either obvious enough to require no independent judgment or too intertwined with a manager’s simultaneous involvement to attribute to the nurse alone. Promotion recommendations were reviewed independently at two levels above the nurses. One nurse occasionally bought pizza for coworkers out of his own pocket — too personal and de minimis to count as “reward.” Accountability for CNA performance could not be separated from nurses’ own patient care obligations. And no nurse had ever actually processed a Step 1 grievance; all went directly to management at Step 3.

With no primary indicium established, secondary indicia — including management’s practice of calling nurses “supervisors” — were immaterial. The Regional Director ordered an election for June 17, 2026.

Significant Cases Cited

]]><![CDATA[06/04/2026: Employer Trumps Up Harassment Claims to Fire Union Organizer]]>https://www.nlrbedge.com/p/06042026-employer-trumps-up-harassmenthttps://www.nlrbedge.com/p/06042026-employer-trumps-up-harassmentThu, 04 Jun 2026 12:55:35 GMT

Southern Aluminum Finishing Company, Inc., JD-35-26, 25-CA-325283 (ALJ Decision)

An ALJ has found that Southern Aluminum Finishing Company violated the NLRA by suspending and then discharging a union organizer, and by maintaining overly broad confidentiality and nonsolicitation policies.

Kyle Phillips was hired as a fabricator at the company’s Indianapolis facility in March 2023. Two weeks into the job, he disclosed to his supervisor that he was a union organizer assigned by Sheet Metal Workers Local 20 to organize the facility’s employees. Within days, three co-workers who were unreceptive to his organizing efforts filed harassment complaints — assisted, the record showed, by the same supervisor Phillips had just notified. Phillips was suspended on April 7, just two weeks after disclosing his union role, and terminated on April 17.

The Discharge

ALJ Jeffrey P. Gardner applied the Wright Line burden-shifting framework, which requires the General Counsel to first show that protected activity was a motivating factor in the employer’s action, after which the burden shifts to the employer to prove it would have taken the same action regardless. The ALJ found the General Counsel’s prima facie case straightforward: Phillips’s organizing was openly known, and animus was evident from the timing, from the company’s own “Union Free Employment” policy, and from the supervisor’s immediate invocation of the nonsolicitation agreement upon learning of Phillips’s union role.

The ALJ then found that the company’s proffered justifications were pretextual. The termination letter cited a sexual harassment policy — one concerned with conduct based on protected characteristics like sex and race — and applied it to union organizing conversations. No discipline history existed, performance was never at issue, and the claimed concern about production slowdowns appeared nowhere in the investigation record or termination letter, surfacing only at trial. The ALJ also credited Phillips’s testimony over that of management, finding the acting general manager and HR manager not credible. Because the employer’s stated reasons were pretextual, it could not meet its Wright Line burden, and the ALJ found violations of Sections 8(a)(3) and (1).

Interrogation Allegation Dismissed

The ALJ dismissed the General Counsel’s allegation that Dalton’s employee interviews constituted unlawful interrogation. Applying the Bourne factors and the totality of the circumstances, the ALJ found that the interviews arose from actual employee complaints and that Dalton had a legitimate investigative need for the information — even though the investigation itself was ultimately a pretext for the discharge.

Work Rules

Under the Stericycle standard, which asks whether a reasonable employee could interpret a rule to restrict Section 7 activity, the ALJ found both the company’s confidentiality policy and its nonsolicitation agreement unlawfully overbroad. The confidentiality policy’s prohibition on sharing any information “not generally known to the public” could reasonably be read to bar employees from sharing wage information — a core Section 7 right. The nonsolicitation agreement’s restrictions on encouraging co-workers to seek other employment similarly swept in protected concerted activity.

The remedy includes reinstatement, full backpay with interest compounded daily, compensation for foreseeable pecuniary harms under Thryv, reimbursement of job-search expenses under King Soopers, and revision or rescission of the unlawful rules.

NLRB Edge is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Significant Cases Cited

  • Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): Establishes the burden-shifting causation test for cases alleging discriminatory employer motivation, requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer to prove it would have acted the same way regardless.

  • Stericycle, Inc., 372 NLRB No. 113 (2023): Sets the current standard for evaluating work rules, holding that a rule is presumptively unlawful if a reasonable employee — interpreting it as a layperson — could read it to restrict Section 7 activity, even if the rule could also be read otherwise.

  • Rossmore House, 269 NLRB 1176 (1986): Establishes that employee interrogation violates the NLRA only when the words or context suggest coercion or interference, with the totality of circumstances assessed using the Bourne factors.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Expands the make-whole remedy to include compensation for all direct or foreseeable pecuniary harms caused by an unlawful adverse employment action, beyond just lost wages.

  • Capstone Logistics LLC, 372 NLRB No. 124 (2023): Reaffirms that timing alone can constitute substantial circumstantial evidence of unlawful employer motivation in discrimination cases.

]]><![CDATA[06/02/2026: Bargaining Notes Still Exempt from Information Requests]]>https://www.nlrbedge.com/p/06022026-bargaining-notes-still-exempthttps://www.nlrbedge.com/p/06022026-bargaining-notes-still-exemptTue, 02 Jun 2026 12:59:33 GMT

Stericycle, Inc., 374 NLRB No. 121, 04-CA-277775 (Published Board Decision)

In this supplemental decision, the Board resolved the one allegation it had severed from its 2023 ruling: whether Stericycle violated Section 8(a)(5) and (1) of the NLRA by refusing to produce bargaining notes in response to a union information request. Chairman Murphy and Member Mayer declined to reconsider Stericycle, Inc., 370 NLRB No. 89 (2021) (Stericycle I), which established that bargaining notes are generally exempt from disclosure, and dismissed the allegation. Member Prouty dissented.

The information request arose from a live dispute over what the parties had actually agreed to during contract negotiations. When Stericycle’s representative insisted his bargaining notes would prove the company’s interpretation of the attendance policy was correct, the union requested those notes. Stericycle refused, and the ALJ dismissed the allegation under Stericycle I‘s blanket exemption. The Board majority affirmed without further analysis.

Prouty argued that Stericycle I was wrongly decided and should be overruled. Under the Board’s standard information-request framework, anchored in NLRB v. Acme Industrial Co., an employer must produce relevant information unless it can demonstrate a legitimate and substantial confidentiality interest — and even then must seek an accommodation rather than refuse outright. Prouty contended that Berbiglia, Inc., the foundation of Stericycle I, addressed something categorically different: a broad subpoena seeking a union’s internal strategy documents. Notes recording what the parties actually said to each other across the bargaining table, he argued, do not implicate those confidentiality concerns. To the extent bargaining notes contain internal strategy or caucus discussions, those portions can be redacted. Critically, Prouty noted, Stericycle never even asserted a confidentiality claim here — making the blanket rule’s application particularly difficult to defend. He would have found a violation.

Significant Cases Cited

  • Stericycle, Inc., 370 NLRB No. 89 (2021): Prior Board decision establishing that bargaining notes are generally exempt from disclosure under the NLRA — the rule the majority upheld and the dissent sought to overturn.

  • NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Supreme Court decision holding that furnishing relevant information upon request is a core component of the Section 8(a)(5) bargaining obligation.

  • Berbiglia, Inc., 233 NLRB 1476 (1977): Board decision quashing a broad subpoena for union internal records on the ground that parties must be able to formulate bargaining positions without fear of exposure — the precedent underlying Stericycle I‘s bargaining-notes rule.

  • Pennsylvania Power Co., 301 NLRB 1104 (1991): Established the balancing framework for confidentiality claims, requiring the party asserting confidentiality to demonstrate a legitimate and substantial interest and to seek an accommodation before withholding requested information.

  • Patrick Cudahy, Inc., 288 NLRB 968 (1988): Recognized that attorney-client privilege claims within bargaining notes can coexist with the general duty to provide relevant information, supporting the dissent’s argument that targeted redaction is preferable to a blanket exemption.

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Aqua Dental, 374 NLRB No. 122, 16-CA-305753 (Published Board Decision)

The Board affirmed an ALJ’s finding that a Pearland, Texas dental practice violated Section 8(a)(1) of the NLRA by disciplining and discharging employee Sandra Estrada in October 2022 for engaging in protected concerted activity, ordering reinstatement and full make-whole relief.

The Board’s substantive analysis appears almost entirely in its opening footnotes. The ALJ had found two bases for protected concerted activity: an anonymous email sent to the employer on October 10, 2022 raising workplace concerns, and Estrada’s discussions with coworkers about bonuses on October 20, 2022. The Board narrowed its holding to the first basis only, relying on the ALJ’s credibility finding that a coworker had discussed the workplace concerns with Estrada before the email was sent. It declined to reach the bonus-discussion issue.

The three members diverged on the animus analysis. Chairman Murphy would limit the animus finding to the employer’s shifting rationales for termination. Member Prouty, joined in the result, would have adopted all of the ALJ’s animus findings and noted that the direct evidence of retaliatory intent may render Wright Line analysis unnecessary altogether — citing Vesta VFO, LLC for the proposition that explicit retaliation requires no further motive inquiry. He nonetheless found the violation established under Wright Line as well.

On remedy, the Board applied Thryv, Inc.‘s expanded make-whole framework. Chairman Murphy and Member Mayer, consistent with recent decisions in Performance Plumbing, LLC and Lodi Volunteer Rescue Squad, Inc., expressed openness to reconsidering Thryv but agreed to apply it in the absence of a majority to overrule it. The Board rejected the General Counsel’s requests for enhanced remedies — including a notice reading, mandatory manager training, and a written apology — finding traditional remedies sufficient. Member Prouty dissented on the notice reading, arguing the circumstances made it particularly appropriate.

Significant Cases Cited

Infusion Management Group D/B/a the Signature Room at the 95th and the Signature Lounge at the 96th, 374 NLRB No. 125, 13-CA-328071 (Published Board Decision)

The Board denied the General Counsel’s motion for default judgment against Infusion Management Group, the shuttered operator of The Signature Room at the 95th and The Signature Lounge at the 96th in Chicago. The underlying case arose from a charge by UNITE HERE Local 1 alleging that Infusion violated Section 8(a)(5) and (1) of the NLRA by closing and laying off unit employees without affording the union an opportunity to bargain over the effects of that decision.

The General Counsel moved for default judgment after Infusion—which the Illinois Secretary of State dissolved in January 2025—failed to file an answer to the amended consolidated complaint and compliance specification. Richard Roman, however, a named party in interest, did file an answer. Although Roman denied ownership of Infusion and contested both jurisdiction and the merits, the General Counsel did not challenge the sufficiency of his answer.

The Board’s analysis turned on the consequences of naming Roman as a party in interest. Any Board order issued against Infusion would run against the company’s officers, agents, and assigns—a category that includes Roman. Because Roman could be required to take affirmative steps to effectuate such an order, and could face contempt exposure if he refused, entering default judgment without a hearing would subject him to legal obligations without due process. The Board drew an analogy to its practice of denying default judgment against a non-answering respondent when an alleged single employer or alter ego has filed a timely answer—reasoning that where one party’s liability is derivative of another’s, a filed answer by the party whose interests are at stake protects both. While the Board acknowledged that Roman’s potential exposure is more limited than that of a true single employer or alter ego, it found the due process rationale equally applicable.

The Board remanded the case to Region 13 for further proceedings.

Significant Cases Cited

]]><![CDATA[06/01/2026: Amazon Illegally Fired Someone for Using the N-Word]]>https://www.nlrbedge.com/p/06012026-amazon-illegally-fired-someonehttps://www.nlrbedge.com/p/06012026-amazon-illegally-fired-someoneMon, 01 Jun 2026 12:31:52 GMT

Amazon.com Services, LLC, JD-33-26, 20-CA-353627 (ALJ Decision)

An administrative law judge sustained four unfair labor practice allegations against Amazon arising from its response to a Teamsters organizing campaign at its DCK6 last-mile delivery station in San Francisco, while dismissing the bulk of a wide-ranging complaint.

The campaign began in September 2024, culminating in an October 2 “March on the Boss” at which employees demanded recognition. Amazon neither recognized the union nor filed an RM petition. It responded instead with an influx of outside managers and HR personnel, voluntary information sessions, facility-wide anti-union messaging, distribution of branded safety vests, and increased food giveaways. The ALJ dismissed all allegations arising from those responses. The surge in management presence lacked evidence of coercive conduct. The facility-branded vests were content-neutral and distinguishable from explicitly anti-union apparel. The food giveaways fell within established Board precedent permitting employers to provide meals during a campaign. The information sessions accurately described the status quo obligation and were carefully scripted.

Four violations were sustained. Manager Adam Carr unlawfully interrogated employee Domenic Daniele on two occasions — asking whether he had signed an authorization card and whether he supported the union — without allaying fears of retaliation, satisfying the coerciveness factors from Rossmore House. Amazon also violated Section 8(a)(3) by applying its off-duty access policy more strictly against Johnny Nalls, a visible organizing committee member who had routinely stayed in the breakroom after his shift for eighteen months without incident; within a week of the March on the Boss, two managers told him he had to leave within ten to fifteen minutes. A related allegation involving Leah Pensler was dismissed because she had entered the facility on a day she was not scheduled to work, and the policy had never been applied permissively in that situation. The ALJ also found that Amazon violated Section 8(a)(3) by effectively withdrawing Pensler’s prior acceptance into an unpaid learning ambassador training role after she became a prominent organizing committee member, crediting her account over the employer’s and finding the employer’s documentary evidence internally inconsistent.

The decision’s most detailed analysis addresses Nalls’ December 2024 termination. Amazon fired Nalls after a corporate investigation concluded he had used a racial epithet toward co-worker Paramveer Singh during a confrontation on October 23 — the same day Nalls had retrieved a Teamsters vest for Singh and then approached him after Singh removed it, apparently at a manager’s urging. The ALJ found that Nalls did use the N-word once, but colloquially rather than as a slur. Applying the totality-of-the-circumstances test reinstated by the Board in Lion Elastomers, the ALJ found the balance strongly favored continued protection: the employer’s own potentially unlawful interference provoked the exchange; the subject matter went to the core of Section 7 activity; Nalls acted impulsively without threats or physical contact; and credited testimony established that the N-word was used conversationally at DCK6 on a near-daily basis in management’s presence without prior discipline. The ALJ also noted that Singh’s own written statements, made shortly after the incident, did not mention the epithet — it surfaced only when the investigator asked a leading question. Amazon produced no documentation to support its claim that similar conduct had always resulted in termination elsewhere. In an alternative Wright Line analysis, the ALJ reached the same conclusion: Amazon could not show it would have discharged Nalls absent his protected activity given the complete absence of prior discipline for comparable language at the facility.

Amazon is ordered to reinstate Nalls with full back pay, reinstate Pensler’s invitation to the learning ambassador program, and cease the unlawful interrogation and access policy practices.

Significant Cases Cited

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Starbucks Corporation, JD-32-26, 19-CA-297589 (ALJ Decision)

An administrative law judge has dismissed all unfair labor practice allegations against Starbucks arising from the company’s creation of its “Heritage Market” — a three-store district in downtown Seattle comprising the Pike Place, 1st and Pike, and 1st and University locations — during the height of a 2022 union organizing campaign by Workers United.

The General Counsel alleged four categories of violations: that Starbucks unlawfully solicited employee grievances during April 2022 “collaboration sessions” held at its stores; that a manager interrogated a union supporter during a Heritage Market job interview; that the company created the Heritage Market itself as an anti-union restructuring; and that approximately 29 employees who were not rehired into the Heritage Market were discriminatorily denied the positions, denied the accompanying raises and benefits, and constructively discharged.

Grievance Solicitation. On the solicitation allegations, the ALJ found the General Counsel had not established that an organizing campaign was underway at the Pike Place store — as opposed to the nearby 1st and Pike store — at the time of the April 18 and April 25 sessions. Without knowledge of active union organizing among the specific employees addressed at the sessions, the inference that the solicitation implied a promise to remedy grievances did not attach. The ALJ also found that the collaboration sessions did not represent a meaningful departure from Starbucks’ pre-existing practice of soliciting employee feedback through a variety of formats, relying on Wal-Mart Stores, MacDonald Machinery Co., and Longview Fibre Paper & Packaging for the proposition that an employer with an established practice may continue it during an organizing campaign without violating the NLRA.

Interrogation. The ALJ rejected the interrogation allegation involving Jo Cormier, a 5th and Pike barista and known union supporter who interviewed for a Heritage shift supervisor role. The General Counsel argued that the interviewer’s question — asking what Cormier would do if she disagreed with the company — was targeted at her union activity, particularly because the interviewer had seen Cormier on a picket line. The ALJ found that the question was part of the standard Heritage Market interview script, was posed to multiple applicants, and was not the “only reasonable inference” of an attempt to probe union sympathy, applying Rossmore House and Aloha Temporary Service.

Heritage Market Creation. On the core restructuring allegation, the ALJ applied the Wright Line burden-shifting framework and found the General Counsel had not established sufficient animus. Though district manager Quesenberry’s knowledge of union activity at 1st and Pike was imputed to Starbucks, the ALJ found no evidence of animus directed at the employees of the two other stores that anchored the Heritage Market concept. The ALJ also declined to infer animus from ALJ-level findings in other Starbucks cases that had not yet been affirmed by the Board, and from Board decisions involving different actors in different locations.

Failure to Hire and Constructive Discharge. The failure-to-hire allegations were analyzed under FES (A Division of Thermo Power). The ALJ found the General Counsel failed to establish the second required element — that the rejected applicants had the experience relevant to the posted positions — because the Heritage Market barista and shift supervisor roles contained materially elevated requirements compared to their core counterparts, and the General Counsel did not demonstrate that the unsuccessful applicants met those requirements or that the requirements were pretextual. On constructive discharge, applying Yellow Ambulance Service, the ALJ found that requiring employees to apply for the Heritage positions and transferring those not selected did not constitute deliberately unbearable working conditions, comparing the circumstance to lawful reorganizations in El Paso Natural Gas Company and San Antonio Portland Cement Company.

The complaint was dismissed in its entirety.

Significant Cases Cited

  • Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for mixed-motive cases under Section 8(a)(3), requiring the General Counsel to show union activity was a motivating factor before the burden shifts to the employer to prove it would have taken the same action regardless.

  • FES (A Division of Thermo Power), 331 NLRB 9 (2000): Sets out the three-part prima facie case the General Counsel must establish in refusal-to-hire allegations, including that applicants had experience relevant to the announced job requirements and that union animus contributed to the decision.

  • Rossmore House, 269 NLRB 1176 (1984): Requires that alleged interrogation be assessed under all surrounding circumstances to determine whether it reasonably tended to restrain or coerce employees in the exercise of their NLRA rights.

  • Amptech, Inc., 342 NLRB 1131 (2004): Holds that solicitation of grievances during a union campaign raises an inference of an implicit promise to remedy them, particularly when the solicitation significantly departs from the employer’s pre-existing practices.

  • Yellow Ambulance Service, 342 NLRB 804 (2004): Defines the traditional constructive discharge standard, requiring proof that the employer deliberately made working conditions unbearable and intended that result, with intent assessed by whether the employer reasonably should have foreseen that its actions would cause a resignation.

Civic Influencers, Inc., JD-34-26, 05-CA-345478 (ALJ Decision)

A Delaware nonprofit that ran a youth civic engagement program violated the NLRA by discharging seven employees and rescinding one promotion in retaliation for protected concerted activity and union organizing, ALJ Michael Rosas ruled on May 29.

Background

Civic Influencers employed a staff of organizers and program coordinators who worked remotely to recruit college students for voter engagement work. In April 2024, several employees sent the board of directors a letter criticizing CEO Maxim Thorne’s leadership and management. Those same employees voiced similar concerns during a company retreat later that month. Shortly after, employees began organizing and, in June 2024, sought voluntary recognition from the employer. The union filed a representation petition on June 26, and three employees testified at the pre-election hearing in July.

The Handbook Rule

The ALJ found that a rule in Respondent’s employee handbook — prohibiting “behavior that lowers morale of fellow employees” — was unlawful under Stericycle, Inc., the Board’s current standard for evaluating work rules. Applying that framework, the ALJ concluded that a reasonable employee contemplating protected activity would read the rule to cover discussions about wages, hours, or working conditions. Respondent offered no evidence that the rule served a legitimate business interest that could not be addressed more narrowly, and the record showed the company had actually invoked it to silence criticism of the CEO.

The Discharges and Rescinded Promotion

The ALJ applied the Wright-Line burden-shifting test. Respondent conceded that all eight affected employees had engaged in protected concerted activity and union activity, and that management knew about it. The burden thus shifted to Respondent to show the adverse actions would have occurred regardless. It failed to do so.

The ALJ found extensive evidence of unlawful motivation. Four employees — Katrina Cousins, Kathleen Hutton, Emily Yost, and Kameryn Point — were discharged on June 21, just nine days after the union sought voluntary recognition and two days after the union declined to delay its petition until after the November elections. Elise Orlick’s promotion was rescinded the same day. The company simultaneously continued interviewing and hiring contractors for many of the same roles it had just eliminated, undercutting its stated financial rationale. Audrey Ferguson, Anna Cubbage, and Cornell Duckworth were discharged on December 31, roughly three weeks after completing an end-of-year report the company needed for fundraising — and the ALJ noted that Respondent had internally decided to terminate them in mid-August, shortly after they testified at the representation hearing.

Respondent’s defenses — financial hardship, poor performance, and a strategic shift to digital organizing — were all rejected as pretextual. Post-discharge performance reviews were generated retroactively. Respondent’s own position statements shifted between financial and performance justifications, a pattern the ALJ treated as evidence of discriminatory motive. And despite claiming financial distress, the company entered January 2025 with nearly $300,000 in net assets and proceeded to hire a dozen contractors over the following weeks.

Remedy

The ALJ ordered reinstatement with backpay for all seven discharged employees and restoration of Orlick’s promotion, along with standard make-whole remedies. Because Respondent had committed eight “hallmark” violations — the kind the Board has long recognized as likely to poison the election atmosphere — the ALJ granted a Gissel bargaining order, bypassing the election process and requiring the company to bargain with United Professional Organizers on request.

Significant Cases Cited

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

  • Stericycle, Inc., 372 NLRB No. 113 (2023): Set the current Board standard for evaluating work rules, requiring that rules be assessed from the perspective of an economically dependent employee contemplating protected activity, with ambiguities resolved against the employer.

  • NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Authorized the Board to issue a bargaining order — rather than directing an election — where an employer’s unfair labor practices are so serious that a fair election is unlikely.

  • Donaldson Bros. Ready Mix, Inc., 341 NLRB 958 (2004): Clarified that under Wright-Line, once the General Counsel establishes that an employer’s stated reasons are pretextual, the employer automatically fails to carry its rebuttal burden.

  • Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Confirmed that discriminatory intent may be proven through circumstantial evidence, including timing, the presence of other unfair labor practices, and disparate treatment of employees who engaged in protected activity.

Carter BloodCare, JD(SF)-12-26, 16-CA-345182 (ALJ Decision)

An ALJ has ruled that Carter BloodCare, a Dallas-Fort Worth blood donation nonprofit, violated the NLRA when it interrogated a phlebotomist about a Facebook post and then removed him from a promotional development program because of it.

The employee, Steven Holmes, posted on Facebook encouraging coworkers to wear black scrubs on Sundays to protest unwanted Sunday shift assignments, using hashtags like “#Solidarity” and “#TogetherWeCan.” About 20 employees participated. Three weeks later, Holmes was summoned to a meeting with a manager and an HR specialist, where management showed him the post, asked whether he intended to incite a “rebellion,” and demanded he explain what he meant by “solidarity.” He was then told he was being removed from the company’s Leadership Development Plan (LDP) — a six-month program he had enrolled in to regain a promotion he had lost years earlier.

Interrogation. Applying the multi-factor test from Westwood Healthcare Center, the ALJ found the May 21 meeting constituted an unlawful interrogation. Holmes was unexpectedly summoned to a formal meeting with a senior manager and HR representative, questioned about his protected activity as a precursor to an adverse employment action, and warned he might face further discipline — all of which the ALJ found would reasonably tend to coerce an employee from exercising Section 7 rights.

Supervisory Status. Carter argued Holmes was a statutory supervisor under Section 2(11) during his LDP participation and therefore not protected by the NLRA. The ALJ rejected that defense. Relying on Kentucky River Community Care v. NLRB and the Board’s decisions in Chevron Shipping Co. and Dynamic Science, Inc., the ALJ found that Holmes’ limited role in assigning phlebotomists to intake or blood draw duties at smaller drives was routine and entirely circumscribed by Mobile Supervisor oversight. Because all phlebotomists are interchangeably qualified to perform both functions, those assignments required no independent judgment sufficient to confer supervisory status.

Removal from the LDP. Under the Wright Line framework, the ALJ found the General Counsel established a prima facie case through Holmes’ protected Facebook post (activity), management’s direct reference to the post at the May 21 meeting (knowledge), and the interrogation itself combined with the close timing between the post and Holmes’ removal (animus). Carter then failed to show it would have removed Holmes absent his protected activity. The ALJ pointed to several weaknesses in Carter’s defense: management explicitly linked the post to the LDP removal at the meeting; Holmes was ousted less than two months into a six-month program designed for employees with prior performance issues; and a comparator employee without protected activity was given four full months under her LDP despite similar errors. The ALJ also drew an adverse inference from Carter’s failure to call Holmes’ direct supervisor — who had provided him with favorable evaluations — as a witness.

The ALJ ordered Carter to make Holmes whole for losses connected to the LDP removal, expunge related records, and post the standard remedial notice.

Significant Cases Cited

Penske Truck Leasing, LP v. Central States Southeast and Southwest Areas Pension Plan, 25-1738, (7th Circuit)

The Seventh Circuit’s May 2026 decision in Penske Truck Leasing, LP v. Central States Pension Plan touched on NLRA issues only briefly, as a secondary argument in a broader ERISA/MPPAA dispute, but the court’s treatment is worth noting.

Penske argued that if it were expelled from the pension plan for one of its bargaining units — Local 745, representing Dallas-area employees — it would be unable to maintain the pension contributions that were part of the status quo under the expired collective bargaining agreement, thereby forcing it into an unfair labor practice under NLRA Section 8(a)(5). Under that provision, an employer must maintain existing terms and conditions of employment after a contract expires until the parties reach a new agreement or bargain to a good-faith impasse. Penske relied on NLRB v. Katz, which established that unilateral changes during bargaining violate the duty to bargain collectively.

The Seventh Circuit was unpersuaded. The court reasoned that a pension fund’s expulsion of a bargaining unit is effectively a guarantee that negotiations have reached an impasse — and once impasse is reached, the employer’s obligation to maintain the status quo is no longer absolute. The court acknowledged that the NLRB, not federal courts, has exclusive authority to determine whether an unfair labor practice has actually occurred, and that the Board could theoretically reach a different conclusion. Under the specific facts, however — where Central States had terminated negotiations entirely — the court was satisfied that Local 745’s expulsion would not put Penske in violation of the NLRA.

The court distinguished the case from Staffco of Brooklyn, LLC, a 2016 Board decision in which an employer unilaterally stopped contributing to a pension plan after a contract expired without first bargaining to impasse. The court found that case meaningfully different because there, the Board found no impasse — whereas here, the fund itself had ended the relationship.

Significant Cases Cited

]]><![CDATA[05/29/2026: Failure to Furnish Information, Retaliatory Terminations]]>https://www.nlrbedge.com/p/05292026-failure-to-furnish-informationhttps://www.nlrbedge.com/p/05292026-failure-to-furnish-informationFri, 29 May 2026 23:33:33 GMT

Os-Db-Jv-2, LLC, 374 NLRB No. 115, 12-CA-339997 (Published Board Decision)

The Board affirmed an ALJ decision finding that a Puerto Rico janitorial contractor violated Section 8(a)(5) of the NLRA by refusing to furnish — and unreasonably delaying in furnishing — information requested by the union representing maintenance workers at three Veterans Administration facilities.

The union requested payroll records, work schedules, and holiday, vacation, and sick-leave data going back two to three years, largely predating the parties’ first collective bargaining agreement, which took effect June 23, 2023. The employer largely stonewalled, referring the union to CBA provisions and asking the union to justify why pre-contract data was still relevant.

The Board, affirming the ALJ, rejected that argument in a key opening footnote. The mere existence of the CBA, which was not even in the record, was insufficient to rebut the presumptive relevance of the requested information. Pre-contract employment data can establish terms and conditions that remain relevant during the life of a contract, and it can be relevant to whether the employer is currently violating the agreement. The Board also noted that because the employer refused everything — including records from the eight months the contract had already been in effect — it could not selectively invoke the CBA as a relevance shield. Under Keauhou Beach Hotel, employers must comply with overbroad requests to the extent they encompass relevant information.

The Board also affirmed the ALJ’s finding that the employer’s eight-week delay in simply informing the union that a VA-dependent pay raise had not yet been disbursed was an independent violation. The ALJ applied the multi-factor timeliness standard from TDY Industries and Safeway and found no justification for the delay, citing a line of decisions including Linwood Care Center and Monmouth Care Center holding that unreasonable delay is as much a violation as outright refusal.

The employer’s reliance on an unpublished ALJ decision, American Medical Response Ambulance Service, was dispatched by the ALJ on multiple grounds: the facts were distinguishable, the employer there had actually provided years of responsive data, and because no exceptions were filed, the decision carried no precedential weight.

The Board modified the ALJ’s order to use standard remedial language, and declined to adopt the General Counsel’s request for a remedy waiving contractual grievance deadlines, agreeing with the ALJ that such relief was not warranted.

Significant Cases Cited

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Thrifty Payless, Inc. Dba Rite Aid, 373 NLRB No. 65, 20-CA-255252 (Published Board Decision)

The Board has issued a supplemental decision in a case involving Rite Aid and United Food and Commercial Workers Local 8-Golden State, remanding the matter to an ALJ following a D.C. Circuit ruling that partially overturned the Board’s original remedy.

The underlying violation is not in dispute. Both the Board and the D.C. Circuit agreed that Rite Aid unlawfully implemented a successor contract without first bargaining to an overall impasse, in violation of Section 8(a)(5) and (1) of the NLRA. Among the unilateral changes Rite Aid made was replacing the union’s health and welfare trust fund with a company-sponsored plan and stopping contributions to the fund as of January 1, 2020.

The question on remand is narrower: whether Rite Aid must pay the full amount of missed fund contributions, or whether that figure should be reduced to account for benefits it actually provided to employees through its own plan during the same period. The D.C. Circuit, applying its own circuit precedent from Grondorf, Field, Black & Co. v. NLRB, held that requiring full back-contributions without accounting for those substitute benefits could result in an improper windfall to the fund. The court sent the case back to allow Rite Aid to make that showing. Any disputes over the specific dollar calculations are to be resolved in a compliance proceeding.

The Board accepted the remand, treating the circuit court’s opinion as the law of the case, and returned the matter to ALJ Dickie Montemayor for further proceedings, including reopening the record if necessary. Notably, Rite Aid and the union had jointly requested that the case be held in abeyance pending a potential settlement — complicated by Rite Aid’s bankruptcy proceedings — but the Board denied that request, leaving the question of any abeyance to be argued before the judge.

Significant Cases Cited

Freedom Electrical Construction LLC, 373 NLRB No. 61, 03-CA-323884 (Published Board Decision)

The Board entered a default judgment against Freedom Electrical Construction LLC, a Newfane, New York electrical contractor, after the company failed to answer a complaint filed by IBEW Local 237 or respond to subsequent notices. Under Section 102.20 of the Board’s Rules, unanswered complaint allegations are deemed admitted, and because the company also failed to raise the Section 10(b) six-month statute of limitations as an affirmative defense, that defense was waived.

The admitted facts establish that Freedom Electrical signed a Letter of Assent in October 2019 binding it to successive collective bargaining agreements between the Union and the Niagara Division of the National Electrical Contractors Association — most recently the 2022–2026 agreement. Since about summer 2021, the company stopped applying the contractual wage and fringe benefit provisions to covered unit employees, violating Section 8(a)(5) and (1) of the NLRA.

The Board ordered Freedom Electrical to honor the 2022–2026 agreement, make employees whole for lost wages and benefits with interest compounded daily, contribute any delinquent fringe benefit fund payments, reimburse employees for expenses caused by missing contributions, and compensate employees for adverse tax consequences from lump-sum backpay awards.

Significant Cases Cited

Nitro Construction Services, 374 NLRB No. 120, 09-CA-313196 (Published Board Decision)

The Board affirmed ALJ Geoffrey Carter’s finding that Nitro Construction Services, a West Virginia electrical subcontractor, violated Section 8(a)(3) and (1) of the NLRA when it laid off two union electricians, Michael Bishop and Robert Darren Brumfield, from a construction project in late December 2022. The Board also affirmed the ALJ’s dismissal of related refusal-to-hire allegations involving two subsequent projects in 2023.

The protected activity at issue was twofold. First, Brumfield confronted superintendent Jason Dillard about returning to work after a COVID-19 infection, noting that the company had recently sent Bishop home based on mere suspicion of illness — a challenge the Board characterized as protected concerted activity raising workplace health and safety concerns. Second, Bishop and Brumfield jointly invoked the collective-bargaining agreement to assert Bishop’s entitlement to four hours of “show-up pay” for a day he had been sent home early, conduct the Board clarified as protected activity under Interboro Contractors and NLRB v. City Disposal Systems. Both of these activities occurred within one to two days before Dillard notified the union of the two-person layoff.

The Board’s most significant analytical work appears in the opening footnotes. There, the Board addressed the supervisory status of foreman Barker, whose knowledge of the protected activity was imputed to Dillard as decisionmaker. The Board noted that supervisory status under Oakwood Healthcare is established by possession of at least one statutory indicia — here, the authority to assign work — and that the company’s failure to except to that finding foreclosed argument on the point. The Board also confirmed that the employer’s failure to sustain its Wright Line defense was properly grounded in pretext: Dillard’s cost-savings rationale lacked any corroborating documentation, was inconsistent with his selection of Brumfield over other similarly situated group-two referrals, and was undercut by the company’s request for ten additional electricians just nine days after the layoffs.

On the refusal-to-hire claims, the ALJ found — and the Board affirmed — that the General Counsel failed to establish animus on the part of project manager Mike Price, who declined to hire Brumfield for the 2023 Mountaineer and Nucor projects because he did not personally know Brumfield. The ALJ found no evidence that Price had any knowledge of the PureCycle events or communicated with Dillard, and the General Counsel failed to rebut Price’s facially neutral preference for familiar workers under FES.

The Board noted, but declined to resolve, a reserved question over the Thryv expanded-remedy framework, with Chairman Murphy and Member Mayer flagging openness to reconsideration in a future case while agreeing to apply it here in the absence of a three-member majority to overrule it.

Significant Cases Cited

  • Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for mixed-motive discrimination cases under Section 8(a)(3), requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer to prove it would have taken the same action regardless.

  • Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Sets out the three-part test for statutory supervisory status under Section 2(11) of the NLRA, holding that possession of even one enumerated indicia of authority, exercised with independent judgment in the employer’s interest, is sufficient.

  • FES, 331 NLRB 9 (2000): Establishes the General Counsel’s initial burden in discriminatory refusal-to-hire cases, requiring proof that the employer was hiring, the applicant was qualified, and antiunion animus contributed to the rejection.

  • Interboro Contractors, Inc., 157 NLRB 1295 (1966): Holds that an individual employee’s invocation of rights under a collective-bargaining agreement constitutes protected concerted activity under Section 7 of the NLRA.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s standard remedy to require employers to compensate employees for all direct and foreseeable pecuniary harms resulting from unlawful conduct, beyond traditional backpay.

]]><![CDATA[05/28/2026: Kroger Dinged for Unilaterally Ceasing Dues Checkoff]]>https://www.nlrbedge.com/p/05282026-kroger-dinged-for-unilaterallyhttps://www.nlrbedge.com/p/05282026-kroger-dinged-for-unilaterallyThu, 28 May 2026 12:10:09 GMT

Vermont Information Processing, Inc. v. NLRB, 24-1360, (DC Circuit)

The D.C. Circuit has upheld the NLRB’s finding that Vermont Information Processing, Inc. (VIP) illegally fired software engineer Christopher Bendel for helping create and circulate a salary-sharing spreadsheet among coworkers — a protected activity under the NLRA. But the court vacated the Board’s rulings on three other employees, finding the Board had exceeded the scope of the General Counsel’s complaint.

Bendel’s Firing

Applying the Wright Line burden-shifting framework, the court found substantial evidence that Bendel’s termination was driven by his role in the spreadsheet. VIP fired him within roughly ninety minutes of management discovering it, and there had been no prior plans to let him go. The court rejected VIP’s arguments that it acted for legitimate reasons — including that Bendel had used company resources improperly or had disseminated misleading information — noting that the Board reasonably found these explanations pretextual, particularly given VIP’s shifting justifications over time.

The Three Other Employees

The General Counsel’s complaint charged VIP with firing Gordon Dragoon, Kaleb Noble, and Kestrel Swift for creating and disseminating the spreadsheet. The ALJ found they were discharged for their instant messages about the spreadsheet and Bendel’s firing — conduct the court found closely enough connected to the charged activity to be permissible. But the Board went further, framing the protected conduct as communications about “workplace conditions” generally. The court held that expansion violated VIP’s due process rights: the company had no notice that broader workplace-condition discussions might be at issue, and it was prejudiced by being unable to tailor its defense accordingly. The three employees’ cases were remanded.

Remedies

The court upheld the reinstatement order for Bendel, rejecting VIP’s argument that reinstatement was improper because he had found other work. On the Thryv make-whole remedy — which requires employers to compensate discharged workers for all direct or foreseeable pecuniary harms beyond traditional backpay — the majority declined to address VIP’s facial challenge to Thryv’s validity, finding the argument unpreserved. VIP had raised only a case-specific “windfall” argument before the Board, not a broader statutory authority challenge.

Judge Walker dissented on the remedy question, arguing that Thryv exceeds the Board’s authority under Section 10(c) of the NLRA. In his view, Congress authorized only equitable relief — reinstatement and backpay — and the Thryv remedy functions as compensatory damages Congress never granted the Board power to award. Walker also disagreed with the majority’s preservation ruling, contending VIP had adequately put the Board on notice of its objection.

Significant Cases Cited

  • Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework governing discharge cases where an employer claims a legitimate reason — the General Counsel must first show protected activity was a motivating factor, then the burden shifts to the employer to prove it would have acted the same way regardless.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Board decision establishing that make-whole remedies in all ULP cases must include compensation for all direct or foreseeable pecuniary harms beyond traditional backpay, regardless of interim earnings.

  • Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190 (D.C. Cir. 2003): Holds that the Board may find and remedy a violation not specifically alleged in the complaint if the issue is closely connected to the complaint’s subject matter and was fully litigated.

  • King Soopers, Inc. v. NLRB, 859 F.3d 23 (D.C. Cir. 2017): D.C. Circuit decision approving the Board’s authority to order reimbursement of search-for-work and interim employment expenses as part of make-whole relief.

  • SEC v. Chenery Corp., 318 U.S. 80 (1943): Foundational administrative law principle requiring that agency orders be judged on the grounds the agency actually relied upon, barring post hoc rationalizations on appeal.

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Kroger Texas L.P., 374 NLRB No. 113, 16-CA-273805 (Published Board Decision)

The Board affirmed an ALJ decision finding that Kroger Texas violated Section 8(a)(5) and (1) of the NLRA by unilaterally stopping dues-checkoff deductions and remittances to UFCW Local 455 after its collective-bargaining agreements expired in 2020. The violations covered bargaining units at Houston-area stores and Louisiana stores in the Dallas Division.

The core legal question was whether the Board’s 2022 ruling in Valley Hospital II — which held that dues-checkoff obligations survive contract expiration — applied retroactively to Kroger’s conduct. The ALJ found it did, and the Board agreed, applying Valley Hospital II as controlling precedent. Chairman Murphy and Member Mayer declined to revisit Valley Hospital II, applying it for institutional reasons while expressing some reservations about the remedy.

On the merits, the Board (in footnotes) rejected each of Kroger’s affirmative defenses. On impasse, the Board held that even assuming the parties had reached impasse, Kroger’s right to make unilateral changes would extend only to proposals it had actually made during negotiations — and Kroger never proposed eliminating dues checkoff at the bargaining table. On durational contract language, the Board applied Finley Hospital to hold that general “during the term” language does not constitute a clear and unmistakable waiver of bargaining obligations. On laches, the Board found that Kroger itself had requested the litigation postponement and showed no meaningful prejudice from the delay.

On remedy, the Board ordered Kroger to reimburse the Union for all dues it would have collected, with interest, and barred Kroger from recouping those amounts from employees. Member Prouty emphasized that this approach — holding the wrongdoer responsible for the financial consequences of its unlawful conduct — is well established in Board law. Member Mayer, while applying the remedy for institutional reasons, flagged that requiring an employer to pay for conduct that was lawful under precedent in effect at the time raises equity concerns he would be willing to revisit in an appropriate future case.

Significant Cases Cited

Atlantic American Fire Protection Company, Inc., 374 NLRB No. 114, 13-CA-309518 (Published Board Decision)

The Board affirmed a sweeping set of unfair labor practice findings against an Elgin, Illinois fire sprinkler contractor whose owner responded to a union election victory by firing nearly his entire workforce and walking away from bargaining — while continuing to operate the business with a skeleton crew.

Employees voted 10-1 for Sprinkler Fitters Local 281 in December 2022. Within days, owner Kenneth Walschot told employees they were fired and the company was closing, withheld Christmas bonuses and holiday food gifts, and skipped a scheduled bargaining session. Despite announcing closure, Respondent continued performing sprinkler fitter work through 2023 and into 2024. The ALJ found violations of Sections 8(a)(1), (3), and (5), and the Board adopted those findings with modifications.

On the Section 8(a)(1) claims, the ALJ found unlawful coercive interrogation when Walschot demanded to know who “started” the organizing campaign and labeled employees “ringleaders.” He dismissed an earlier, more casual inquiry about “union stuff” as insufficiently coercive under the Rossmore House multifactor test, and also dismissed impression-of-surveillance allegations because the employee himself had disclosed his organizing role to Walschot. The Board affirmed both the violations and the dismissals.

On the 8(a)(3) discrimination claims, the ALJ applied the Wright Line burden-shifting framework and found the discharges, bonus withholding, and elimination of holiday food gifts all motivated by anti-union animus. Walschot’s own testimony supplied much of the evidence — he told the ALJ he felt “backstabbed,” described the union drive as a “rebellion” he needed to “put down,” and acknowledged he “set [employees] free” after the vote. The Board adopted these findings without exception.

The Section 8(a)(5) analysis drew a line between the Christmas food gifts (treated as non-bargainable gifts under longstanding Board precedent) and the annual cash bonus (found to be a mandatory subject given its regularity, fixed amount, and employees’ reasonable expectations). The ALJ also found Respondent violated Section 8(a)(5) by terminating nearly all bargaining unit employees without notice or bargaining, refusing to bargain a first contract, withdrawing recognition, and failing to furnish requested information. The Board affirmed all of these findings.

On remedy, the Board adopted the ALJ’s broad cease-and-desist order under Hickmott Foods, citing the proclivity standard. It also ordered reinstatement and Thryv-style make-whole relief for the ten discharged employees, a notice-reading remedy, a 120-day posting period, and structured bargaining sessions of at least 24 hours per calendar month with written progress reports every 15 days. The Board declined to overrule Ex-Cell-O Corp. and impose compensation for lost bargaining opportunity, citing its recent decision in Longmont United Hospital. In a footnote, Chairman Murphy and Member Mayer reserved judgment on whether Thryv‘s novel remedies are permissible under the NLRA, but applied the precedent in the absence of a majority to overrule it.

Significant Cases Cited

United States Postal Service, 374 NLRB No. 116, 09-CA-278765 (Published Board Decision)

The Board affirmed an ALJ’s dismissal of an unfair labor practice complaint against the United States Postal Service, finding that USPS did not violate the NLRA when it placed a probationary clerk on emergency leave and then discharged him.

Antwon Thompson worked at USPS’s Cincinnati processing and distribution center and had filed grievances over the facility’s chronic failure to provide union stewards within the contractually required two-hour window — a routine problem that USPS resolved by paying employees $12.50 per incident. Thompson was placed on emergency leave in May 2021 after a physical confrontation with a manager over a beverage in the work area, then terminated for attendance issues including an unexcused absence and instances of working away from his assigned machine.

The ALJ found that the General Counsel failed to establish that Thompson’s protected activity — requesting stewards and filing grievances — was a motivating factor in either adverse action. The ALJ credited management witnesses over Thompson, noting that Sene’s apparent hostility toward Thompson predated any protected activity, and that requesting stewards and filing grievances was so routine at the facility that it could not plausibly have triggered retaliation.

The Board affirmed but on slightly different grounds. Rather than resolving whether the General Counsel met the initial Wright Line burden, the Board assumed that burden was met and instead found that USPS had successfully demonstrated it would have taken the same actions regardless of Thompson’s protected activity. Emergency leave was consistent with USPS’s zero-tolerance workplace violence policy; the discharge was supported by contemporaneous documentation of absenteeism and misconduct; and USPS had discharged another probationary employee without protected activity for comparable conduct. The Board did note that the ALJ erroneously found Thompson absent on May 14, but concluded that correction did not change the outcome.

Significant Cases Cited

Kuraray America, Inc., 374 NLRB No. 119, 16-CA-364229 (Published Board Decision)

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case, finding that Kuraray America, a specialty chemical manufacturer in La Porte, Texas, violated Section 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with International Chemical Workers Union Council/UFCW Local 900C following the union’s certification.

The underlying representation proceeding involved a self-determination election — a vote by a previously unrepresented group of laboratory analysts on whether to join an existing bargaining unit of production and maintenance employees already represented by the union. Following the October 2024 election, the Regional Director certified the union as representative of the analyst group as an accretion to that unit.

Kuraray refused to bargain on several grounds, all of which the Board rejected. The company argued the bargaining unit was inappropriate and that its employees lacked a community of interest with the existing unit — but those issues had already been litigated and resolved in the representation proceeding. Under the Board’s standard rule, an employer cannot relitigate representation issues in a subsequent unfair labor practice proceeding absent newly discovered evidence or special circumstances. The company offered neither.

Kuraray also argued it had no duty to bargain while its request for review of the election decision was pending before the Board. The Board rejected that argument, reaffirming that the bargaining obligation attaches upon certification, not after any request for review is resolved.

The Board’s footnotes also dispatched a series of constitutional defenses. Kuraray raised objections based on Board member and ALJ removal protections, Fifth and Seventh Amendment due process claims, and arguments that the Board’s procedures violated the APA and the NLRA itself. The Board found that Kuraray had not shown any harm from the removal protection structure, citing Collins v. Yellen and Calcutt v. FDIC, and noted that the Supreme Court long ago rejected the Seventh Amendment argument in NLRB v. Jones & Laughlin Steel Corp. The remaining constitutional defenses were dismissed as unsupported bare assertions.

On remedy, the General Counsel had requested an extended certification year under Mar-Jac Poultry Co. The Board declined, holding that such relief is unavailable where the underlying election was a self-determination election rather than a standard representation election.

The Board ordered Kuraray to cease and desist and to bargain on request with the union.

Significant Cases Cited

]]><![CDATA[I've Got More AI Labor Law Research Tools]]>https://www.nlrbedge.com/p/ive-got-more-ai-labor-law-researchhttps://www.nlrbedge.com/p/ive-got-more-ai-labor-law-researchFri, 22 May 2026 18:56:31 GMT

Sign up for a free trial by clicking here.

Earlier this year, I started offering free trials for my NLRB Research Bot. Since then, over 200 individuals and entities signed up for a free trial, and now over 20 unions and law firms are paid monthly subscribers. Apparently, these paid subscribers find my AI labor law research tools useful, and if you are a reader of this newsletter, you might too.

When I announced the free trials earlier this year, I only had the NLRB Research tool. The tool is used by prompting it inside Claude (or other LLMs) with NLRB questions. From there, the tool assembles all of the relevant legal materials from my NLRB Law database and then writes a cited and linked memo to answer the question.

Since then, I have quietly added four more research tools to the package:

  1. LMRDA Research, which answers questions about the Labor Management Reporting and Disclosure Act of 1959.

  2. MPSB Research, which answers questions about the Merit Systems Protection Board.

  3. CA PERB Research, which answers questions about the California Public Employment Relations Board.

  4. CBA Research, which uses my database of over 3,700 collective bargaining agreements to answer questions related to drafting CBA provisions.

I am a practicing labor lawyer and so I designed these tools with an eye towards what would be most useful to me, especially the NLRB Research, LMRDA Research, and CBA Research tools. With those three tools, you can automate a lot of the research that goes into being a private-sector labor lawyer.

If any of this interests you, please head over to the the free trial page and fill out the form (no credit card required). After approval, you will get an email with the five tools and instructions about how to use them. I use them all of the time in my own practice and clearly quite a few unions and firms that have tried them found them useful enough to pay for. So you might find them useful as well.

]]><![CDATA[05/21/2026: Member Mayer Disapproves of Enforcement of "Like or Related" Cease-and-Desist Language]]>https://www.nlrbedge.com/p/05212026-member-mayer-disapproveshttps://www.nlrbedge.com/p/05212026-member-mayer-disapprovesThu, 21 May 2026 13:22:12 GMT

Pacific Bell Telephone Company, 374 NLRB No. 111, 20-CA-301120 (Published Board Decision)

The Board issued a default judgment against Pacific Bell Telephone Company d/b/a AT&T California, finding that the company breached a 2022 informal settlement agreement by later committing the same type of violation it had promised to avoid — unreasonably delaying the provision of information to its union, Communications Workers of America, Local 9421.

The case has a layered history. In late 2022, the company settled unfair labor practice charges (Pacific Bell I) alleging it delayed furnishing the union with requested information in violation of Section 8(a)(5) and (1) of the NLRA. The settlement included a standard “like or related” cease-and-desist provision and a default judgment clause. The Regional Director closed the case in February 2023 after the company completed all affirmative obligations — posting notices and conducting mandatory training.

But new charges followed. A subsequent complaint (Pacific Bell II) alleged that the company again unreasonably delayed responding to a December 2022 union information request. An ALJ found a violation, and the Board affirmed in March 2025. The General Counsel then moved for default judgment in the original settled case, arguing that the post-settlement violation breached the “like or related” cease-and-desist term.

The Board agreed, relying on Aqua-Aston Hospitality and Jack Cooper Holdings, which hold that a “like or related” violation in a subsequent case constitutes a breach of the settlement’s ongoing cease-and-desist obligations. The Board also rejected the company’s argument that the General Counsel’s motion was time-barred under Section 10(b), holding that provision governs when charges must be filed — not when a default judgment motion may be brought. Because the company had already complied with the affirmative relief in the settled case, the Board issued only a cease-and-desist order.

Member Mayer concurred reluctantly, issuing a pointed opinion calling for reconsideration of the Board’s precedent at the “earliest opportunity.” He argued that the existing framework allows the General Counsel to resurrect closed, remedied cases without giving the charged party a meaningful chance to cure the alleged breach — a process he views as inconsistent with due process principles and the NLRA’s policy favoring voluntary settlement. He noted that the standard settlement form does not clearly spell out that signing it means agreeing never again to commit a similar violation, and that any ambiguity in a contract should be construed against its drafter — here, the General Counsel. He also emphasized that settlements resolve more than 90 percent of meritorious cases and serve as the “lifeblood” of the administrative process, warning that the current approach risks discouraging respondents from settling at all.

NLRB Edge is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Significant Cases Cited

Kodiak Roofing & Waterproofing, LLC, 32-RC-383994 (Regional Election Decision)

Region 32 Regional Director Christy J. Kwon directed an election in a unit of sheet metal workers at a commercial and residential roofing contractor in Sparks, Nevada, rejecting the employer’s argument that the only appropriate unit must encompass all 72 of its roofers.

Sheet Metal Workers Local Union 26 petitioned to represent roughly 15 Assistant Roofers and Journeymen performing primarily sheet metal work — installing metal roofing, metal siding, metal flashing, and ACM panels. The employer countered that those employees shared an overwhelming community of interest with all other roofers at its Sparks facility, making a smaller unit inappropriate.

The Regional Director found the petitioned-for unit appropriate on two independent grounds. First, applying the standard from American Steel Construction, the unit was readily identifiable and shared an internal community of interest: the sheet metal workers used specialized tools, performed distinct tasks, worked in separate crews, and were largely supervised apart from other roofers. Payroll records from three prevailing wage projects showed that employees almost exclusively coded hours under either the Sheet Metal or Roofer classification — not both — reinforcing that the two groups function separately in practice.

Second, the Regional Director found the unit qualified as a craft unit under Burns & Roe and Nissan North America, which ended the inquiry without need to evaluate the employer’s competing unit. The sheet metal workers were primarily engaged in tasks not performed by other employees, requiring substantial craft skills and specialized tools. Although Kodiak lacked a formal apprenticeship program — a factor that cut against the craft unit finding — the Regional Director concluded that the determinative consideration, following Schaus Roofing, was that skilled sheet metal work is assigned along craft lines with no evidence that non-sheet metal roofers perform skilled sheet metal tasks.

The Regional Director also ruled out including Service Technicians, who work in a separate department doing maintenance and repair rather than new construction, and have minimal interchange with sheet metal workers.

On the election method, the director ordered a mail ballot, finding that employees report directly to job sites scattered across northern Nevada — some up to 200 miles from the Sparks facility — satisfying the “scattered” standard under San Diego Gas & Electric.

Significant Cases Cited

]]><![CDATA[05/18/2026: Fifth Circuit Remands Starbucks Case]]>https://www.nlrbedge.com/p/05182026-fifth-circuit-remands-starbuckshttps://www.nlrbedge.com/p/05182026-fifth-circuit-remands-starbucksMon, 18 May 2026 14:48:04 GMT

Starbucks v. NLRB, 24-60649, (Circuit Court)

The Fifth Circuit last week vacated and remanded a Board decision finding that Starbucks unlawfully terminated a union organizer at its Latham, New York store.

The case arose from unionizing campaigns at two upstate New York Starbucks locations in spring 2022. At the Latham store, shift supervisor and union organizer James Schenk was fired after a series of workplace infractions, including sending sexually explicit and profane messages about a coworker in a group chat, failing to complete closing tasks while on a final warning, and opening a letter addressed to Starbucks. An ALJ found the termination lawful, but the Board reversed, concluding Starbucks would not have disciplined or fired Schenk absent his union activity.

The Fifth Circuit, applying the substantial evidence standard from Universal Camera Corp. v. NLRB, granted Starbucks’s petition and sent the case back to the Board. The court identified several pieces of contradictory evidence the Board failed to adequately address: evidence that no other employee had directed comparably extreme and sexist language at coworkers; the fact that Schenk’s prior discipline also involved profanity, which the Board dismissed as not “relevantly similar” without considering whether Starbucks viewed the incidents as an escalating pattern; the absence of any other shift supervisor who failed to complete closing tasks while on final warning; and Schenk’s own admission that he opened official NLRB mail believing the company would not share its contents with employees. The court, citing Entergy Mississippi, Inc. v. NLRB and Dish Network Corp. v. NLRB, held that the Board must “grapple with countervailing portions of the record” and had failed to do so. A separate issue regarding a district manager’s increased store presence—found to constitute unlawful surveillance at the Stuyvesant location—was not disturbed.

Judge Oldham concurred in the result but would have reversed outright rather than remand, arguing the Board had deviated from “fairminded, law-based adjudication” and citing the court’s recent decision in Space Exploration Technologies Corp. v. NLRB.

Significant Cases Cited

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Apple Inc., 374 NLRB No. 109, 32-CA-306609 (Published Board Decision)

The Board unanimously affirmed an ALJ’s dismissal of all unfair labor practice allegations against Apple, Inc., arising from the discipline and discharge of Ellen Shen, a software engineer who spent years escalating a personal workplace dispute through increasingly disruptive mass emails to hundreds of coworkers.

The Board’s analysis was brief, resting on a narrow and dispositive threshold finding: the General Counsel failed to establish that Shen engaged in concerted activity in the first place. Without concerted activity, there is no protected conduct under Section 7, and the discipline and discharge allegations necessarily fail. The Board declined to reach the question of whether Apple’s conduct was otherwise motivated by anti-protected-activity animus, relying solely on that threshold deficiency.

On the related Section 8(a)(1) allegations — that Apple threatened, coerced, and interrogated Shen in response to her mass emails, and threatened further discipline if she sent additional messages — the Board adopted the ALJ’s dismissals, adding only that Apple’s communications to Shen were not made in response to protected concerted activity, and that no reasonable employee would have perceived them as limiting Section 7 rights going forward. The standard applied was whether the conduct had a reasonable tendency to coerce employees in the exercise of those rights, per KSM Industries.

The Board also addressed a credibility challenge, declining to disturb the ALJ’s witness credibility determinations under the deferential standard from Standard Dry Wall Products, finding no clear preponderance of evidence requiring reversal.

The underlying facts, as resolved by the ALJ, involved Shen’s persistent effort to relitigate a 2020 technical disagreement over a software project. After Apple’s internal investigation dismissed her complaints, Shen sent four mass emails — ultimately reaching all 240 employees in her division as well as Apple’s CEO — and a mass Slack message, each returning to the same personal grievances. The ALJ found no credible evidence that any coworker shared her concerns or that she was acting on anyone’s behalf. Under Meyers Industries, activity is concerted only when engaged in with or on the authority of other employees, or when it constitutes a logical outgrowth of group concerns — neither of which was present here.

Significant Cases Cited

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

  • Meyers Industries (Meyers II), 281 NLRB 882 (1986): Defined concerted activity as conduct engaged in with or on the authority of other employees, or conduct by an individual seeking to initiate, induce, or prepare group action on truly group complaints.

  • Atlantic Steel Co., 245 NLRB 814 (1979): Set out a four-factor balancing test for determining whether otherwise-protected conduct loses the Act’s protection due to its egregious nature, examining the place, subject matter, nature of the outburst, and whether it was provoked by an employer unfair labor practice.

  • Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Clarified that to be protected, employee conduct must be both concerted and engaged in for mutual aid or protection, and that concertedness is assessed under an objective standard tied to whether the activity is linked to coworkers’ interests.

  • Standard Dry Wall Products, 91 NLRB 544 (1950): Established the Board’s policy of deferring to ALJ credibility resolutions unless the clear preponderance of all relevant evidence demonstrates they are incorrect.

Laborers International Union of North America, Local 872, AFL-CIO, 374 NLRB No. 108, 28-CB-239339 (Published Board Decision)

The Board affirmed an ALJ’s dismissal of all unfair labor practice allegations against Laborers Local 872 (Las Vegas), which operates an exclusive hiring hall for construction laborers. The case was decided by a two-member quorum after Member Prouty recused himself.

The charges were brought by two union members who alleged the union ran its hiring hall arbitrarily, withheld registration information, and used its attorney to intimidate them for filing unfair labor practice charges. The ALJ rejected every theory. She found the union’s unwritten dispatch practices—waiving penalties for workers who twice refused the same job, or who faced genuine hardship—served legitimate purposes and were not arbitrary. She found the union had not withheld registration information from charging party Vela, but had simply required him to complete paperwork in person, as it required of everyone. The attorney’s two-word email to the other charging party (”another loss”) was protected expression under Section 8(c), and allegations about intimidating evidence-preservation letters were time-barred. Allegations made by charging party Colvin were dismissed as a sanction for his repeated delays and bad-faith litigation conduct throughout the lengthy proceeding.

The Board adopted the ALJ’s decision without substantive comment, noting only that no party had challenged the propriety of dismissing Colvin’s allegations as a sanction against him rather than against the General Counsel, who controls the complaint.

Significant Cases Cited

Ge Appliances, a Haier Company, 374 NLRB No. 110, 09-CA-332521 (Published Board Decision)

The Board affirmed an ALJ’s dismissal of an unfair labor practice complaint against GE Appliances, a Haier Company, finding that the General Counsel failed to prove the company violated the NLRA when it issued a written warning and discharged a probationary employee, LaDonna Dawson.

The complaint alleged that GE Appliances disciplined and fired Dawson in retaliation for protected concerted activity — specifically, her repeated challenges to the company’s mandatory overtime notice procedures, which the General Counsel argued amounted to an attempt to enforce her collective bargaining agreement under the Interboro doctrine. The ALJ rejected that theory, concluding that Dawson lacked a reasonable and honest belief that the overtime requirements violated the CBA. Unlike the employee in King Soopers, Inc., whose similar belief was grounded in her union representative’s interpretation and her own workplace experience, Dawson simply refused to accept repeated explanations from coworkers, union stewards, and management that the overtime policy was being followed correctly.

The ALJ also rejected the alternative Wright Line discrimination theory. Although Respondent was aware that Dawson had sought union assistance, the record showed no animus toward that activity — management had consistently included union officials in its interactions with Dawson, responded promptly to their inquiries, and arranged for a union steward to be present when discipline was issued. The timing of the discipline, while coinciding with her union contacts, equally coincided with disruptive conduct on the shop floor. Comparative discipline evidence showed that other probationary employees had been discharged on similar timelines for similar behavior.

The Board adopted the ALJ’s decision without elaboration, but addressed two procedural matters in footnotes. First, it declined to strike the pro se Charging Party’s noncompliant exceptions, citing the Board’s practice of leniency toward unrepresented parties, though it disregarded supporting materials not introduced at the hearing. Second, the Board noted that Dawson’s exceptions failed to engage the ALJ’s factual findings or legal analysis, and that her arguments about unresolved payroll issues and a “toxic workplace” — even if meritorious — sounded in state law, not the NLRA.

Significant Cases Cited

]]><![CDATA[05/13/2026: Employer Unilaterally Implemented Health Plan Without Bargaining to Impasse]]>https://www.nlrbedge.com/p/05132026-employer-unilaterally-implementedhttps://www.nlrbedge.com/p/05132026-employer-unilaterally-implementedWed, 13 May 2026 12:31:35 GMT

Westrock Services, LLC, JD(SF)-11-26, 32-CA-330282 (ALJ Decision)

An ALJ found that WestRock Services violated Section 8(a)(5) and (1) of the NLRA by unilaterally implementing a new employee health insurance plan without bargaining to a valid impasse.

The case arose after Teamsters Local 856 won a representation election at WestRock’s Salinas, California, box plant in October 2023, replacing District Council 2. Shortly after the election, DC 2 notified WestRock that the union-run health plan was being cancelled immediately, with no COBRA continuation available. WestRock responded by proposing to move employees into its own company plan — the Consumer Choice Plan — which shifted significantly more premium costs onto employees compared to the 80/20 employer-employee split required under the expired DC 2 contract. The Union countered with several alternatives, including a comparable Teamsters health and welfare plan at no additional cost to WestRock and modified versions of the Consumer Choice Plan that would have preserved the 80/20 split. WestRock rejected all of them. After fewer than four days of exchanges, the company declared impasse and implemented the Consumer Choice Plan on November 13.

The ALJ found no valid impasse under the five-factor test from Taft Broadcasting Co. Good faith — the central factor — weighed heavily against WestRock. The company’s only proposal throughout bargaining was one that required the Union to effectively waive the status quo obligation on premium sharing, which the ALJ characterized as bad faith under Altorfer Machinery Co. WestRock also withheld key information — employee insurance tier demographics — until after it had already declared impasse, on a federal holiday, leaving the Union no meaningful opportunity to formulate a response before implementation. The short duration of negotiations, the Union’s unretracted counterproposals, and the absence of any mutual understanding of impasse all pointed the same direction.

The ALJ also rejected WestRock’s argument that the sudden insurance cancellation constituted an exigency excusing bargaining, finding it unnecessary to resolve the question since bad faith independently precluded a lawful impasse. Discharge allegations against two employees — union steward Frank Pulido and organizer Jesus Felix — were resolved through a non-Board settlement approved at the hearing under Independent Stave.

The remedy includes rescission of the Consumer Choice Plan on request, make-whole relief including pecuniary losses under Thryv Inc., and a one-year extension of the certification period under Mar-Jac Poultry Co. to protect the Union’s bargaining position.

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Significant Cases Cited

]]><![CDATA[05/11/2026: Wage Discussions, Off-Duty Access, and Withholding Raises]]>https://www.nlrbedge.com/p/05112026-wage-discussions-off-dutyhttps://www.nlrbedge.com/p/05112026-wage-discussions-off-dutyMon, 11 May 2026 12:31:48 GMT

Liberty Auto City, Inc., JD-30-26, 13-CA-330556 (ALJ Decision)

An administrative law judge found that a Libertyville, Illinois car dealership violated Section 8(a)(1) of the NLRA by threatening a salesperson for discussing wages with a coworker and then firing him three weeks later.

The case arose after salesperson Ryan Gannon explained the dealership’s pay and bonus structure to a newly hired colleague. The next day, Sales Manager Patrick O’Donnell confronted Gannon, told him he was not allowed to discuss pay with other employees, and threatened to cut his salary or fire him. Gannon immediately complained to HR, whose contemporaneous notes confirmed the threat. The dealership’s general manager acknowledged the threat was unlawful but took no formal disciplinary action against O’Donnell.

Three weeks later, Gannon was fired after picking up a vehicle in a dealer trade that turned out to have minor cosmetic defects a customer noticed during a test drive. The general manager claimed Gannon was fired for “insubordination” based on a brief phone call from a manager—without seeing the car, investigating the facts, or knowing the repair cost.

Applying Wright Line, the ALJ found the General Counsel met the initial burden: Gannon’s wage discussion was inherently concerted and protected, management knew of it, and animus was evident from the prior threat, the absence of any real discipline for O’Donnell, the tight timing, and the general manager’s characterization of Gannon as having a poor “attitude”—language the Board has long treated as a veiled reference to protected activity.

The burden then shifted to the dealership, which the ALJ found failed to carry it. The “insubordination” rationale was pretextual: Gannon had followed his instructions, reported what he found, and never refused an order. The dealership also treated him disparately—other salespersons who actually damaged vehicles were allowed to pay off deductibles over time without being fired. And the decision to fire Gannon was made instantly, by phone, with no investigation, strongly suggesting the vehicle incident was seized upon as a pretext.

The ALJ ordered reinstatement, backpay with interest compounded daily, and compensation for other direct or foreseeable pecuniary harms under Thryv, Inc.

Significant Cases Cited

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Kroger Fulfillment Network, JD-28-26, 09-CA-353140 (ALJ Decision)

An ALJ found that Kroger Fulfillment Network violated Section 8(a)(1) of the NLRA by maintaining an overbroad employee handbook policy and by twice invoking it to stop a union organizer from leafleting outside its Louisville, Kentucky facility. The ALJ dismissed the remaining allegations — interrogation, surveillance, a discriminatory application of the no-solicitation rule during work time, and a captive-audience meeting — finding them either legally or factually unsupported.

The violations centered on Kroger’s “Parking” policy, which stated that the prohibition against solicitation applied throughout the parking lot and barred off-duty employees from the premises entirely, with narrow exceptions. The ALJ found the solicitation provision overbroad because it contained no clear limitation to working time, and under settled Board law, any ambiguity in such a policy is construed against the employer. Kroger argued the Parking policy incorporated by reference a separate Solicitation and Distribution Statement that restricted the ban to working time, but the ALJ rejected that reading as insufficiently explicit. Applying Tri-County Medical Center, the ALJ further found the off-duty access ban unlawful because it swept in non-working areas — including the parking lot and sidewalk — without a legitimate business justification. The Respondent’s safety and shared-tenancy rationale was deemed speculative, with no record evidence of actual accidents or complaints from the co-tenant.

The policy violations were not only facial but applied in practice: HR manager Chloie Reynolds twice approached employee Katherine Applegate while she was off the clock and handing out union flyers outside the main entrance, and each time cited the Parking policy. That the same policy was used to restrict off-clock activity confirmed the ALJ’s conclusion that it was not reasonably understood to permit solicitation during non-working time.

The ALJ dismissed allegations that Reynolds unlawfully interrogated or prohibited employee Christopher Minton from discussing the union during working time. Reynolds reminded Minton of the no-solicitation policy after receiving complaints that he was soliciting trainees during on-road training. The ALJ credited Reynolds’ account of those conversations and relied on Wynn Las Vegas, LLC — which broadened the definition of “solicitation” to include working-time conversations intended to persuade coworkers to support the union — to reject the General Counsel’s contention that merely discussing the union was being prohibited.

The captive-audience allegation failed because the ALJ found the pre-shift “huddles” at issue were voluntary. Employees had a five-minute grace period before their shifts began, and the huddles occurred during that window, meaning attendance could not reasonably be viewed as compelled. The surveillance allegations were dismissed on the facts: the ALJ discredited Applegate’s testimony about the October 10 incident entirely, and found Supervisor Mosley’s brief presence outside the entrance on October 15 — where he routinely spent time smoking and taking calls — was not out of the ordinary and not coercive.

The ALJ ordered Kroger to rescind the unlawful provisions of the Parking policy and revise its Employee Handbook accordingly.

Significant Cases Cited

United Parcel Service, JD-31-26, 09-CA-342136 (ALJ Decision)

An ALJ ruled that UPS violated the NLRA when it withheld planned wage increases from approximately 49 employees at its Louisville “Worldport” facility after those employees sought union representation from Teamsters Local 89.

UPS had completed a companywide wage review — the “2023 Air Region Career Architecture initiative” — and announced to employees that pay adjustments were coming. When the Teamsters demanded recognition in November 2023, UPS filed representation petitions rather than voluntarily recognize the union, as required under Cemex Construction Materials Pacific, LLC (which mandates prompt petition-filing or else the employer must recognize the union outright). Filing the petitions triggered a “critical period” during which, under General Shoe Corp., laboratory conditions for free employee choice must be preserved.

The problem for UPS was that it then notified employees in the two new bargaining units — but not others company-wide — that they would not be receiving the already-announced raises. A manager named Barbiea reportedly told employees the raises were being withheld because giving them would be “considered a bribe” to keep out the union. Supervisors also read a scripted statement explaining that changing wages before an election “may” constitute a violation of law, but neither the script nor Barbiea’s remarks included the critical assurance that employees would receive the raises after the election regardless of the outcome.

That omission was the crux of the case. Under the “safe harbor” doctrine established in Uarco Inc. and clarified in Ansul Inc., an employer may lawfully postpone a planned wage increase during the critical period only if it clearly communicates two things: that the sole reason for the delay is to avoid the appearance of election interference, and that employees will receive the adjustment no matter how the election turns out. UPS communicated only the first part.

The ALJ declined to apply the Wright Line burden-shifting framework, finding it ill-suited where the employer’s motive is singular and undisputed. Instead, the ALJ applied the NLRB v. Great Dane Trailers “inherent destructiveness” analysis, under which disparate treatment of employees based on union activity violates Sections 8(a)(1) and 8(a)(3) even without evidence of overt hostility. The ALJ noted there was no ill will toward the union — UPS ultimately recognized the Teamsters via card check and signed a collective bargaining agreement — but intent to treat employees differently because of their union activity was nonetheless established.

UPS was ordered to make whole the affected employees for lost wages from the date other employees received raises under the initiative through the date their wages were governed by the negotiated National Master Agreement addendum.

Significant Cases Cited

  • Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established that an employer must either recognize a union upon majority card showing or promptly file an RM petition, and that committing an unfair labor practice requiring an election to be set aside results in a remedial bargaining order.

  • NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Supreme Court held that certain employer conduct disparately affecting union employees is inherently destructive of NLRA rights, permitting an inference of unlawful motive from the conduct itself.

  • Ansul Inc., 329 NLRB 935 (1999): Defined the “safe harbor” standard permitting an employer to postpone a wage increase during a critical period, requiring explicit assurance that the increase will be granted after the election regardless of outcome.

  • Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for Section 8(a)(3) cases, requiring the General Counsel to prove union activity, employer knowledge, and animus before the burden shifts to the employer to show it would have acted the same way regardless.

  • General Shoe Corp., 77 NLRB 124 (1948): Established the “laboratory conditions” doctrine requiring that representation elections be conducted in an environment free from employer or union interference with employees’ free choice.

]]><![CDATA[Most People Think Netflix's Handbook Rules are Coercive]]>https://www.nlrbedge.com/p/most-people-think-netflixs-handbookhttps://www.nlrbedge.com/p/most-people-think-netflixs-handbookFri, 08 May 2026 12:31:25 GMT

Section 7 of the NLRA gives workers the right to engage in “concerted activities for the purpose of … mutual aid or protection” while Section 8(a)(1) of the NLRA makes it an unfair labor practice for employers to “interfere with, restrain, or coerce employees in the exercise” of these rights.

In the early 1940s, the NLRB and the Supreme Court established that, by maintaining certain kinds of work rules in company handbooks or employment agreements, employers effectively coerce employees away from engaging in activities that are protected by the NLRA. For example, a work rule banning solicitation makes a worker believe that they are not allowed to solicit people to join a union. A work rule banning disparagement of the company makes a worker believe that they cannot publicly criticize their terms and conditions of employment. And so on.

The precise legal standard for determining whether a work rule is coercive has evolved over the years, but under all such standards, one of the key questions is how a “reasonable worker” would read and react to the rule. If they would read the rule as prohibiting them from doing certain kinds of protected activities and react by refraining from doing so, then the rule is generally considered coercive and maintaining the rule is a violation. If they would not read it this way, then it is generally not considered coercive.

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This legal standard raises an obvious question: how do you know whether a particular kind of rule would have this chilling effect on workers who read it?

As with many such questions in law, the answer is that individuals who have spent their entire lives in the legal profession consult their gut feeling about a rule and then declare that a worker would or would not reasonably be coerced by it. In the NLRB process, those consulting their gut in this way include the Board Members, the NLRB General Counsel, and, to a lesser extent, Administrative Law Judges, and Regional Directors.

Of course, to say these legal professionals consult their gut is also a bit naive. For political appointees like the Board members and NLRB General Counsel, they are often just consulting their own policy and ideological views about whether certain work rules should be allowed and then working backwards to assert that “reasonable workers” would or would not be coerced by them.

To see what I am talking about, consider the recent advice memo in the Netflix coercive rules case (Case No. 32-CA-315576). In that memo, the Division of Advice, operating under Acting General Counsel Cowen, directed the Region to dismiss a case brought against confidentiality and media contact rules maintained by Netflix.

Specifically, the memo concludes this about the confidentiality rule:

Applying Stericycle, Inc., 372 NLRB No. 113 (2023), we conclude that the confidentiality provisions are lawful. Although the Protecting Confidential Information section broadly states that “[a]nything you learn . . . and any other information you obtain while working at Netflix” is confidential, a reasonable employee could not interpret the policy, in context, to restrict discussing terms and conditions of employment. Here, employees would reasonably cabin the meaning of confidential information to legitimately confidential business information given the examples provided in that section (“things like marketing and content strategies and materials, product and device technology, financial data, customer data, business plans and strategies and third-party confidential information”) as well as the examples given in the External Communications section (“Revenue,” “Metrics, such as contribution margin, cost per hours,” and “Number of subscribers”). Since employees would reasonably construe confidential information to be limited in this way, we likewise find that the prohibition on “engag[ing] in public discussions, including blogs and other social media, concerning any confidential information obtained while working at Netflix” would not reasonably tend to coerce employees in the exercise of their Section 7 rights.

The memo then concludes this about the media contact rule:

Likewise, we find that the media-contact provisions would not reasonably tend to chill employees from discussing labor disputes or raising concerted concerns about working conditions with the media. Although the External Communications section broadly prohibits employees from “initiat[ing] contact with or answer[ing] questions about Netflix . . . from the press,” employees would reasonably understand from its context that the policy merely bans speaking with the press about business information on behalf of Netflix.

For both rules, there really is not much more to the argument than an assertion that an employee would not “reasonably” conclude that the rules prohibit them from engaging in protected activity. It is not hard to imagine writing a memo that reaches the exact opposite conclusion by simply asserting that an employee would reasonably conclude that the rules prohibit them from engaging in protected activity. Indeed, if General Counsel Abruzzo was in charge when this issue came to the Division of Advice, that is exactly what this memo would have said despite nominally applying the exact same Stericycle standard.

But how do regular people actually read these rules? Is there some way of getting information about that question other than having GC Cowen or GC Abruzzo consult their gut or political ideology about it? To my mind, the answer to the second question is clearly yes. If you want to know how regular people read these rules, you can present them to a representative sample of the population and ask them whether such rules would make them less likely to engage in protected activity.

Last month, I asked Blue Rose Research to do precisely this by conducting a nationally-representative poll about the Netflix rules contained in this case. Contrary to the conclusion of the Division of Advice, for both the confidentiality and media contact rules, the majority of those surveyed said that reading the rules would make them less likely to engage in a specific protected activity.

For the Netflix media contact rule, Blue Rose polled this question:

Imagine that you and a coworker have been organizing a union at your workplace. A local newspaper reporter contacts you and asks you questions about the union organizing drive, how much workers are paid, and how workers are treated by the company. You want to talk to the reporter but, before doing so, you check your employee handbook and see that it has the following rule in it:

“You should not initiate contact with or answer questions about the Company or its business from the press, financial analysts, institutional stockholders, stockbrokers, market researchers, or individual investors. Any inquiries from the media or investors should be referred to the Company Public Relations or Investor Relations teams.”

How would reading this rule change your decision about whether to talk to the reporter?

Overall, 57 percent said that it would make them “less likely to talk to the reporter” while just 26 percent said that it would make them “more likely” or that it would have “no effect.” Notably, these percentages hold across the ideological spectrum. In fact, individuals who voted for Trump in both of the last two elections actually were more likely to say that the rule would chill their protected activity.

For the Netflix confidentiality rule, Blue Rose polled this question:

Imagine that you and a coworker are considering posting criticisms of the way your employer treats and pays its employees on your social media accounts. Before doing so, you check your employee handbook and see that it has the following rule in it:

“Employees are entrusted with information that is not publicly known, including things like marketing and content strategies and materials, product and device technology, financial data, customer data, business plans and strategies and third-party confidential information, to name a few. Anything you learn, invent, write, develop or create and any other information you obtain while working at the Company should remain confidential. It is to be used only in doing your job at the Company.”

How would reading this rule change your decision about whether to post the criticisms?

The result was essentially the same as the media contact rule.

To be sure, it would be cumbersome to poll the population for every single coercive rules case. But this does not preclude using surveys like this to generate useful guidance about how the NLRB should approach coercive rules. After all, the vast majority of coercive rules fall into a handful of categories — like non-disparagement, confidentiality, and media contact rules — that the agency could do some baseline polling about. If the goal is to identify which rules truly chill Section 7 activity, empirical survey data is far more reliable than letting the Board’s current political occupants—whether from the AFL-CIO or Jones Day—simply consult their instincts and pepper their conclusions with the word “reasonably.”

]]><![CDATA[05/07/2026: ALJ Recommends Gissel Bargaining Order in IATSE Case]]>https://www.nlrbedge.com/p/05072026-alj-recommends-gissel-bargaininghttps://www.nlrbedge.com/p/05072026-alj-recommends-gissel-bargainingThu, 07 May 2026 12:32:12 GMT

A-V Services, Inc., JD-25-26, 22-CA-332620 (ALJ Decision)

An ALJ has found that A-V Services, Inc., a national audiovisual technology provider, committed multiple unfair labor practices against a small unit of six technicians at its Jersey City, New Jersey facilities after those employees sought representation by IATSE Local 59 in mid-2023. The ALJ recommended a Gissel bargaining order on top of the election-setting-aside remedy.

The Violations

The ALJ sustained several distinct theories of liability. First, applying Wright Line, she found that A-V unlawfully ceased assigning Jersey City technicians to work at other locations — particularly the Brooklyn facility — specifically to prevent “cross-pollination” of union sentiment. The site manager’s own words, credited over his later denials, established both the fact of the policy change and its union-related motivation. A-V’s proffered justification — that a remediation team handled the relevant Brooklyn power event — was found pretextual because the company offered no explanation for why it substituted that team for the Jersey City technicians who had routinely performed such work in the past.

The ALJ also found that A-V unlawfully reduced the technicians’ overtime hours, again under Wright Line, relying on credited testimony that supervisors explicitly linked the hour reductions to the organizing campaign and that A-V introduced a new documentation requirement for unscheduled overtime around the same time.

On the wage-withholding allegation, the ALJ applied NLRB v. Great Dane Trailers rather than Wright Line, finding the policy facially discriminatory because A-V implemented a market-rate wage increase companywide in spring 2023 but withheld it exclusively from the Jersey City unit while the election petition was pending. A-V’s account executive admitted as much. The ALJ rejected A-V’s argument that withholding the increase was legally required to avoid election interference, consistent with Board precedent holding that neither good-faith uncertainty nor fear of ULP charges justifies withholding increases that otherwise would have been granted. The employer’s failure to inform employees that they would eventually receive the increase — a safe harbor the Board has recognized — was undisputed.

The ALJ further found that the sudden and dramatically increased presence of higher-level managers at the Jersey City location created the impression of surveillance in violation of Section 8(a)(1), and that the account executive’s private meeting with a technician on election day, in which he discussed promotional opportunities while implying they would evaporate if the union won, constituted an unlawful implied threat of loss of promotional opportunity.

The ALJ dismissed the discipline allegations. She credited the supervisor’s account of the underlying incidents over the employee’s admittedly hazy recollection, found that the employer’s prior handling of attendance issues did not rise to condonation given the employee’s short tenure, and concluded that comparable employees had been disciplined in comparable fashion.

The Bargaining Order

The ALJ recommended a Gissel bargaining order, finding that the wage-withholding — implemented across all but the Jersey City location and not corrected until two years after the election — constituted a “hallmark” violation with lasting effects on the unit. She noted that the technicians’ compounded annual raises continued to lag because subsequent increases were calculated off the lower base rate, meaning the harm persisted through the hearing date. Combined with the other violations’ reach across all six unit members, the ALJ concluded a rerun election would be inadequate.

Significant Cases Cited

  • Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing whether protected activity was a motivating factor in an employer’s adverse employment action.

  • NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Supreme Court decision establishing that facially discriminatory employer conduct that is “inherently destructive” of employee statutory rights requires no proof of anti-union motivation to sustain a violation.

  • NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Supreme Court decision authorizing bargaining orders where employer unfair labor practices make a fair rerun election unlikely and card-based majority status is established.

  • Longmont United Hospital, 373 NLRB No. 97 (2024): Applied Great Dane Trailers to hold that withholding wage increases at facilities subject to a pending representation election, while implementing them elsewhere, violates Sections 8(a)(1) and (3).

  • Starbucks Corp., 374 NLRB No. 10 (2024): Applied impression-of-surveillance doctrine and Gissel bargaining order analysis in the context of a high-profile organizing campaign, finding that unprecedented corporate executive presence at store locations created unlawful impression of surveillance.

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Riverwood Center, LLC, JD-27-26, 12-CA-334715 (ALJ Decision)

An ALJ dismissed an unfair labor practice complaint and overruled a remaining election objection against Riverwood Center, LLC, a Jacksonville, Florida nursing and rehabilitation facility, finding that the General Counsel failed to prove by a preponderance of the evidence that the employer interrogated employees about their union activities or created an impression of surveillance during the critical period before a January 2024 representation election.

The case turned almost entirely on credibility. The key witness, Jacquelin Norris — a former concierge who had spearheaded the organizing drive by distributing and collecting over 100 authorization cards — testified that facility administrator Jessa Collins called her at home before the election and told her that her name “kept coming up” when Collins was questioning employees about the union. ALJ Michael Rosas found that testimony did not hold up. Collins credibly denied making the call, and Norris was impeached by her own sworn Board affidavit, which told a materially different story about the conversation. Norris also exhibited bias stemming from her belief that Collins had retaliated against her daughter and husband, neither of which was corroborated.

Applying the totality-of-circumstances test drawn from Rossmore House and the factors set out in Bourne v. NLRB, the ALJ acknowledged that Norris’s testimony, if credited, would have satisfied the elements of a prima facie Section 8(a)(1) coercive interrogation — the information sought went to union involvement, Collins was the highest-ranking manager, and Norris denied her activities. But because the ALJ credited Collins’s denial over Norris’s inconsistent accounts, the complaint did not survive. The election objection mirroring the interrogation allegation fell for the same reason.

Significant Cases Cited

  • Rossmore House, 269 NLRB 1176 (1984): Established the “totality of circumstances” standard for evaluating whether employer questioning of employees constitutes unlawful interrogation under Section 8(a)(1).

  • Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964): Set out the multi-factor test — including employer hostility, nature of information sought, rank of questioner, place and method of questioning, and truthfulness of reply — used to assess coercive interrogation claims.

Nielsen Dental PC, JD(SF)-10-26, 19-CA-351178 (ALJ Decision)

An ALJ has found that a Helena, Montana dental practice violated Section 8(a)(1) of the NLRA by instructing a receptionist not to discuss a collections bonus, citing that discussion as grounds for her discharge, and then discharging her.

The Bonus Discussion. Office manager Tammy Odegard told receptionist Suzanne King on September 5, 2024, not to tell back-office staff about a $500 collections bonus available only to front-desk employees. King nonetheless texted a dental assistant about the bonus and the broader question of whether compensation was fairly distributed across the office. The ALJ found the instruction unlawful under Automatic Screw Products Co. and Hobson Bearing International—both holding that prohibitions on discussing wages and bonuses violate the NLRA—and rejected the employer’s business-justification defense, citing the Third Circuit’s observation in Jeannette Corp. v. NLRB that potential jealousy among employees does not justify restricting Section 7 rights. The ALJ further found that both King’s termination letter and a post-termination conversation with Odegard independently violated the Act by linking the discharge to the protected bonus discussion, relying on Benesight, Inc.

The Huff Warning. King also told a newer dental assistant, Payton Huff, that she needed to improve her performance if she wanted to keep her job—a conversation that led Huff to resign. The ALJ found this was protected concerted activity under Hoodview Vending Co. and Component Bar Products, which hold that job-security discussions are “inherently concerted” and that warning a coworker of job-security risks is protected where the purpose is to help the coworker retain employment. The Respondent argued King spread false information because management had not yet decided to fire Huff, but the ALJ applied the Valley Hospital Medical Center standard—statements lose protection only if maliciously untrue, not merely inaccurate—and concluded King’s honest, if imprecise, warning did not cross that line.

Wright Line Analysis. Under the mixed-motive framework of Wright Line, the ALJ found the General Counsel established animus through the timing of the discharge (within days of the protected conduct), the presence of other unfair labor practices, and shifting employer explanations—attendance, never mentioned in the termination letter or the state labor agency response, was offered as a primary reason only in post-hearing briefing. The Respondent failed to carry its rebuttal burden: the tolerated attendance issues became a stated reason only after King’s protected activity, and the asserted “loss of trust” rested on the very wage discussions the NLRA protects.

The ALJ ordered reinstatement, backpay with interest compounded daily under New Horizons and Kentucky River Medical Center, compensation for other foreseeable pecuniary harms under Thryv, Inc., and tax-consequence make-whole relief under AdvoServ of New Jersey.

Significant Cases Cited

United States Postal Service, JD-26-26, 12-CA-316287 (ALJ Decision)

An administrative law judge found that the U.S. Postal Service violated the NLRA when it disciplined two Florida postal workers for social media posts and workplace photography related to their working conditions.

The Kirkconnell Case

When rural letter carrier Kellman Kirkconnell learned his pay would drop by roughly $12,000 under a route evaluation system, he recorded a short video on the workroom floor and posted it to TikTok. The video discussed the pay cuts affecting him and his colleagues. His supervisor later ordered him to remove that video and a follow-up video he recorded at home, telling him he was “being watched” and that “anything you post . . . is being watched . . . anywhere.” The Postal Service ultimately issued a notice of removal, later reduced through grievance settlement to a seven-day suspension.

The ALJ found that Kirkconnell’s TikTok posts were protected concerted activity. Though Kirkconnell posted partly to vent his frustration, the ALJ applied the objective concertedness standard from Meyers Industries and concluded the posts were aimed at other employees dealing with the same pay adjustments — an exchange of mutual concern about wages and schedules. Applying the totality-of-the-circumstances test from Pier Sixty, the ALJ found the posts did not involve misconduct sufficient to forfeit the NLRA’s protection. Kirkconnell used no profanity, made only mild implied criticism of the Postal Service, and the videos did not actually display customer addresses despite the employer’s assertions to the contrary.

The ALJ also found two of the Postal Service’s conduct standards overbroad under Stericycle. ELM 665.16 — which required employees to conduct themselves “in a manner that reflects favorably upon the Postal Service” and prohibited conduct “prejudicial” to it — was held presumptively unlawful because employees would reasonably read it to bar protected complaints about working conditions. The Postal Service failed to show the rule could not be more narrowly tailored. The ALJ separately found that the supervisor’s surveillance warning and her directives to remove protected social media posts violated Section 8(a)(1), though the ALJ dismissed the allegation of actual unlawful surveillance, finding the General Counsel did not prove the Postal Service acted in an out-of-the-ordinary manner to monitor Kirkconnell’s public posts.

The Williams Case

Mail handler Keren Williams photographed a mail-sorting machine (ADUS) overflowing onto the floor, intending to report the hazardous condition to her supervisor under Article 14 of her collective bargaining agreement. She showed the picture to a manager and deleted it when told to do so. She received a notice of removal, also reduced to a seven-day suspension through settlement.

The ALJ found Williams engaged in protected concerted activity under the Board’s Interboro doctrine: an employee’s individual assertion of a right grounded in a collective bargaining agreement constitutes concerted activity, even when acting alone. Citing NLRB v. City Disposal Systems, the ALJ noted that an employee’s honest and reasonable invocation of a contract right remains protected even if the employee turns out to be wrong about the contract’s scope. The ALJ further held that the Postal Service’s blanket no-camera rule (MI AS-882-2011-6), which prohibited cell phone cameras throughout postal facilities without any carve-out for statutorily protected uses, was overbroad under Stericycle because it failed to exclude instances where photography is protected by Section 7. The ALJ ordered both rules rescinded to the extent they sweep in protected activity, and directed that references to both employees’ discipline be expunged from their files.

Significant Cases Cited

Detrex Corporation, JD-29-26, 08-CA-343335 (ALJ Decision)

An ALJ ruled that an Ohio chemical manufacturer violated the NLRA by presenting a terminated employee with a severance agreement containing overbroad non-disparagement and confidentiality provisions. The case turns entirely on the Board’s 2023 decision in McLaren Macomb, which remains controlling law and which the ALJ declined to revisit.

The employer, Detrex Corp., presented bargaining unit employee Timothy Batanian with a “Release of All Claims” agreement upon his termination in May 2024. The agreement conditioned two weeks’ severance pay on his acceptance of a non-disparagement clause barring any negative statements — oral, written, or on social media — about a broadly defined group of corporate entities, and a confidentiality clause prohibiting him from disclosing any information he acquired during employment. Neither provision had a time limit.

The agreement included two carve-outs: language stating that employees could still file charges with the NLRB or EEOC, and language in each clause stating that nothing would “prohibit Employee from engaging in activity protected under Section 7 of the National Labor Relations Act.” The ALJ rejected both as cures. On the Section 7 carve-outs, the ALJ applied Stericycle, Inc. to hold that a mere reference to “Section 7 rights” provides no meaningful protection because rank-and-file employees cannot reasonably be expected to know what that phrase means — a point underscored when Batanian himself admitted he did not. On the NLRB/EEOC savings clause, the ALJ found it independently problematic because it explicitly prohibited employees from receiving “any form of recovery or compensation” from agency proceedings, which under Kelly Services, Inc. and 20/20 Communications, Inc. unlawfully undermines the Board’s remedial authority.

Detrex advanced three defenses. It argued McLaren Macomb should be overruled, pointing to Acting GC William Cowen’s February 2025 memorandum rescinding the earlier McLaren Macomb guidance memo. The ALJ flatly rejected this, noting that GC memoranda are not binding on ALJs or the Board, and citing Prime Communications, LP for the proposition that McLaren Macomb remains in force. Detrex next argued that changing the severance agreement language would constitute a unilateral change violating Section 8(a)(5) — an argument the ALJ dismissed because severance agreements were never addressed in bargaining or incorporated into the parties’ collective bargaining agreement. Finally, Detrex raised a timeliness defense under Section 10(b), which the ALJ rejected because the original charge, filed May 29, 2024, adequately encompassed the challenged conduct.

The ALJ ordered Detrex to rescind the offending provisions, notify affected current and former employees in writing, and post the standard Board notice for 60 days.

Significant Cases Cited

  • McLaren Macomb, 372 NLRB No. 58 (2023): Established that proffering a severance agreement with provisions that condition benefits on forfeiture of NLRA rights violates Section 8(a)(1), regardless of the circumstances under which the agreement is offered.

  • Stericycle, Inc., 372 NLRB No. 113 (2023): Held that workplace rules must be evaluated from the perspective of a reasonable non-lawyer employee, not from a legal interpretation of the text.

  • Kelly Services, Inc., 368 NLRB No. 130 (2019): Found that a severance agreement provision waiving an employee’s right to monetary remedies in Board proceedings unlawfully undermines the Board’s authority and employees’ incentive to file charges.

  • 20/20 Communications, Inc., 369 NLRB No. 119 (2020): Reaffirmed that barring employees from obtaining monetary remedies through Board proceedings violates Section 8(a)(1) by interfering with the Board’s remedial processes.

  • Prime Communications, LP, 374 NLRB No. 88 (2026): Confirmed that McLaren Macomb remains controlling Board law, notwithstanding the Acting General Counsel’s rescission of related guidance memoranda.

Trax International Corporation, 28-RC-375549 (Regional Election Decision)

A Regional Director has directed a self-determination election for 11 system administrators employed by defense contractor Trax International Corporation at the U.S. Army Yuma Proving Ground in Arizona. The International Association of Machinists and Aerospace Workers (IAM) Local SC3311, which already represents roughly 700 Trax employees at the facility, is seeking to add the system administrators to its existing bargaining unit.

Professional and Confidential Employee Claims Rejected

The employer argued the system administrators should be classified as professional employees under Section 2(12) of the NLRA — a status that would require a separate self-determination vote before they could be included in a mixed unit. The Regional Director rejected that argument on all four statutory grounds. The work, while technically demanding, is performed within established DOD security frameworks and approved tools, making it skilled technical work rather than the predominantly intellectual, varied work the Act requires. The positions also permit qualification through experience or military training in lieu of a formal degree, which means they don’t satisfy the requirement for advanced knowledge acquired through a prolonged course of specialized intellectual instruction — a bar that industry certifications like CompTIA Security+ don’t clear.

The employer’s confidential employee claim fared no better. Under the Board’s strict labor-relations nexus test, an employee must both assist individuals who formulate labor-relations policy and have regular access to confidential labor-relations information. The system administrators report to supervisors with no labor-relations authority, have no access to grievance files or bargaining strategy, and play no role in discipline or contract administration. Access to billing data and government performance evaluations — the primary basis for the employer’s claim — doesn’t meet that standard.

Community of Interest

The closer question was whether the system administrators share a sufficient community of interest with the existing bargaining unit to make inclusion appropriate. The Regional Director found that they do, though the record was mixed. Job functions, skills and training, functional integration, and contact all weighed in favor: bargaining unit help-desk employees escalate system issues to the administrators, whose maintenance work directly supports the systems that bargaining unit employees use daily. Those factors outweighed the differences — separate supervision below the department manager level, distinct pay structures (salaried and FLSA-exempt versus hourly workers covered by a DOL wage determination and a CBA), and no demonstrated interchange of duties. Having found a sufficient community of interest and an identifiable distinct voting group, the Regional Director directed an Armour-Globe self-determination election, scheduled for May 27, 2026, at the Yuma facility.

Significant Cases Cited

]]><![CDATA[05/06/2026: Sixth Circuit Applies New 10(j) Injunction Standard to Reject Injunction]]>https://www.nlrbedge.com/p/05062026-sixth-circuit-applies-newhttps://www.nlrbedge.com/p/05062026-sixth-circuit-applies-newWed, 06 May 2026 12:31:10 GMT

Elizabeth Kerwin v. Trinity Health Grand Haven Hosp., 24-1975 (Sixth Circuit)

Kerwin v. Trinity Health Grand Haven Hospital, decided May 1, 2026, marks the Sixth Circuit’s first opportunity to reconstruct its Section 10(j) injunction framework following the Supreme Court’s 2024 decision in Starbucks Corp. v. McKinney. The court reversed a district court order requiring Trinity Health Grand Haven Hospital to resume bargaining with its union, finding that the NLRB’s Regional Director failed to demonstrate irreparable harm — even though the court agreed she was likely to succeed on the merits.

Background

The dispute arose after Trinity Health acquired a small Michigan hospital in 2022. Following an unsuccessful decertification election in September 2023 — in which employees voted 89-66 to retain the union — a Trinity employee collected signatures on a “disaffection petition” purporting to show majority opposition to the union. Trinity used that petition to withdraw recognition the day before the election results were announced. An ALJ found the petition riddled with defects: 60 of its 94 signatures had been recycled from the earlier decertification petition, three of seven pages lacked any statement of purpose, and at least one employee signed believing it concerned better pay. Trinity was found to have violated NLRA Sections 8(a)(1) and 8(a)(5).

The Merits Question

Writing for the majority, Judge Readler agreed the Director was likely to succeed — but not for the Board’s stated reason. The Board argued that a properly conducted election categorically forecloses any post-election disaffection evidence as a matter of law, citing its own precedent. The court rejected that position, reasoning that under Loper Bright Enterprises v. Raimondo, courts owe no deference to the Board’s NLRA interpretations, and the statute’s text contains no categorical election-supremacy rule. Brooks v. NLRB — the Supreme Court’s New Deal-era decision upholding the Board’s one-year certification rule — was distinguished on grounds that it addressed certification elections, not decertification elections, and rested heavily on now-discarded Chevron-style deference.

The Director prevailed on her backup argument: the disaffection petition was factually insufficient regardless of any categorical rule. Its recycled signatures, missing purpose statements, and hasty verification process meant Trinity lacked “objective evidence” of majority opposition — and that finding was likely to survive the court’s deferential substantial evidence review.

The Irreparable Harm Holding

The court’s central ruling concerns irreparable harm, the “core” of any preliminary injunction. The Director argued — drawing on Ninth Circuit precedent — that courts may infer irreparable harm from the inherent nature of a refusal-to-bargain violation, without independent factual support. The majority flatly rejected that approach post-Starbucks, holding the Board must satisfy the same traditional equitable standards as any other litigant and cannot benefit from special inferences or burden-lightening rules.

Applying that standard, the court found the Director’s evidence wanting. Union meeting attendance data — hovering around 20 members before Trinity’s withdrawal and falling to 8 by March 2024 — was deemed too equivocal; Trinity’s own reading of the numbers was equally plausible. A union president’s affidavit describing employee “frustration and fear” was too vague and anecdotal to demonstrate that union support would erode to the point of defeating the Board’s eventual remedy. The Director’s claimed harm from Trinity’s unilateral policy changes also failed, partly because those changes were potentially remediable through backpay and other Board orders, and partly because Trinity had been providing pay raises since leaving the union — undercutting the notion that employees were worse off. The Director’s four-month delay between issuance of the complaint and filing the petition further undercut the urgency of the claimed harm.

The Dissent

Judge Boggs dissented on the irreparable harm issue, arguing the majority conflated permissive inferences with impermissible mandatory presumptions. In his view, the district court did exactly what Frankl v. HTH Corp. and Henderson v. Bluefield Hospital contemplate: it identified specific predicate facts — declining meeting attendance, chilled union activity, sweeping unilateral policy changes — and inferred from them that the union’s bargaining position would continue to weaken. That is ordinary predictive reasoning, Boggs argued, not a thumb on the scale. He also disputed the majority’s factual analysis, noting that post-withdrawal meeting attendance averaged just two-thirds of pre-withdrawal levels and that the Board’s years-long litigation backlog magnified the harm of any delay. Judge Bush concurred with the majority.

Significant Cases Cited

  • Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024): Supreme Court held that NLRB petitions for Section 10(j) preliminary injunctions must satisfy the traditional four-factor Winter test, rejecting the Sixth Circuit’s prior “reasonable cause” standard.

  • Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024): Supreme Court overruled Chevron deference, requiring courts to exercise independent judgment in interpreting statutes administered by agencies.

  • Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008): Established the four-factor test for preliminary injunctions — likelihood of success, irreparable harm, balance of equities, and public interest.

  • Brooks v. NLRB, 348 U.S. 96 (1954): Upheld the Board’s one-year certification rule requiring employers to honor a union election result for at least one year, notwithstanding informal employee repudiation.

  • Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011): Ninth Circuit decision affirming a Section 10(j) injunction and approving permissive inferences of irreparable harm based on factual findings about diminished union support.

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Adt, LLC, 374 NLRB No. 104, 09-CA-286214 (Published Board Decision)

The Board affirmed ALJ Andrew Gollin’s December 2022 decision finding ADT, LLC committed multiple violations of Section 8(a)(5) and (1) of the NLRA against IBEW Local 369, which has represented residential and small business installers and service technicians at ADT’s Louisville and Lexington, Kentucky facilities since 1971.

The ALJ found — and the Board adopted — that ADT unlawfully withdrew recognition from the union, ceased deducting and remitting dues both during and after the parties’ 2018–2021 collective bargaining agreement, failed or unreasonably delayed in providing requested bargaining information, and made unilateral changes to wages, overtime, job titles, pay periods, leave accrual, and attendance policy after withdrawing recognition. The ALJ also dismissed allegations that ADT had unlawfully discharged union steward Mark Frazier or constructively discharged steward Marcus Rodriguez; the Board affirmed those dismissals without exception.

Direct Dealing. The Board wrote separately to apply the three-part test from Permanente Medical Group to ADT’s communications about its Tech Force Excellence (TFE) Program. Managers across multiple levels communicated the program directly to unit employees — describing its higher wages, expanded vacation, and performance bonuses — before the union had been given the same information, and did so expressly in tandem with decertification solicitations. The Board found all three elements satisfied: direct communication with represented employees, for the purpose of changing terms or undercutting the union’s bargaining role, to the exclusion of the union. By presenting the TFE Program to employees days before providing it to the union, ADT denied the union any meaningful opportunity to review, discuss, or bargain over it.

Tainted Decertification Petition. Both the ALJ and the Board found the decertification petition — which ADT supervisors prepared, distributed, and monitored — was fatally tainted by ADT’s own unfair labor practices. Under Hearst Corp. and SFO Good-Nite Inn, an employer’s direct participation in a decertification effort creates a conclusive presumption that any resulting petition is insufficient to rebut the union’s presumption of continuing majority status. Because the petition was tainted, ADT’s withdrawal of recognition based on it was also unlawful.

Remedy. The Board adopted the ALJ’s recommendations for a broad cease-and-desist order, a bargaining order requiring ADT to bargain with the union for a reasonable period, and a notice reading by management in the presence of a Board agent. The Board also ordered ADT to make the union whole for lost dues — both during and after the contract — with interest compounded daily, and to process all pending grievances. The majority declined to order nationwide relief or notice mailing, over Member Prouty’s dissent on both points.

Significant Cases Cited

  • Permanente Medical Group, 332 NLRB 1143 (2000): Established the three-element test for unlawful direct dealing — direct employer communication with represented employees, for the purpose of changing terms or undercutting the union, to the exclusion of the union.

  • Levitz Furniture Co., 333 NLRB 717 (2001): Held that an employer may withdraw recognition from an incumbent union only upon objective evidence that the union has actually lost majority support.

  • Hearst Corp., 281 NLRB 764 (1986): Established that an employer may not rely on a decertification petition to withdraw recognition when the employer engaged in unfair labor practices directly related to the decertification effort.

  • SFO Good-Nite Inn, LLC, 357 NLRB 79 (2011): Applied a conclusive presumption that employer unfair labor practices directly advancing a decertification effort taint the resulting petition, rendering it per se insufficient to rebut the presumption of continuing majority status.

  • Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): Established the burden-shifting framework for assessing discriminatory motivation in adverse employment actions under the NLRA.

NCR Atleos Corporation, 01-RC-374776 (Regional Election Decision)

IBEW Local 2222 petitioned to represent three customer engineers — ATM technicians who work out of their homes in Maine — employed by NCR Atleos Corporation. The employer argued the smallest appropriate unit would be all 20 customer engineers in its Territory 114G, which spans Maine, New Hampshire, and parts of New York and Vermont. Acting Regional Director John D. Doyle, Jr. agreed with the employer and directed an election in the territory-wide unit.

The central question was whether the three Maine-based employees had a “distinct” community of interest from the other 17 customer engineers in Territory 114G. Because the employees work from their homes rather than a fixed facility, the Regional Director applied the multi-facility unit framework from Opici Family Distributing of New York, analyzing seven standard factors: skills and duties, terms and conditions of employment, employee interchange, functional integration, geographic proximity, centralized supervision, and bargaining history.

Skills and duties were identical across all 20 engineers and thus neutral. Terms and conditions were largely uniform, with minor differences attributable to state law and cost-of-living pay zones; the Regional Director found that factor neutral as well. Functional integration was also neutral, as all engineers work independently with no evidence of cross-location coordination. Bargaining history was neutral, with no prior collective bargaining in Territory 114G.

Three factors cut against the petitioned-for unit. On employee interchange, the record showed meaningful cross-border service calls — including 74 occasions where New Hampshire engineers performed work in Maine — with no separate supervision for those assignments. On geographic proximity, the Portland, Maine engineer is closer to several New Hampshire engineers than to the engineer in Hudson, Maine, and the Regional Director invoked Bashas’, Inc. for the principle that state boundaries alone don’t define a coherent bargaining unit. On supervision, a single territory manager oversees all 20 engineers, making the Maine-only unit appear arbitrary. Citing Odwalla, Inc. and K & N Engineering, Inc., the Regional Director concluded that excluding the non-Maine engineers would create a “fractured unit” — one with no rational basis in the employer’s operational or functional structure.

Because IBEW agreed to proceed in an alternate unit if the petitioned-for unit was found inappropriate, a mail ballot election was directed among all 20 Territory 114G customer engineers, with ballots to be mailed May 11, 2026 and counted June 2, 2026. The union was given 10 business days to demonstrate an adequate showing of interest in the enlarged unit.

Significant Cases Cited

  • Opici Family Distributing of New York, 371 NLRB No. 30 (2021): Established that home-based field employees should be analyzed under the multi-facility unit framework when determining bargaining unit appropriateness.

  • Bashas’, Inc., 337 NLRB 710 (2002): Held that a county-based store grouping was not an appropriate unit where the proposed unit failed to conform to any administrative grouping and arbitrarily excluded nearby stores.

  • Odwalla, Inc., 357 NLRB 1608 (2011): Held that where no traditional community-of-interest factor distinguishes petitioned-for employees from a larger group, there is no legitimate basis for excluding the larger group, and the resulting unit would be impermissibly fractured.

  • K & N Engineering, Inc., 365 NLRB No. 141 (2017): Reaffirmed that a proposed unit is inappropriate when it fails to track any operational or functional lines drawn by the employer.

  • Alamo Rent-A-Car, 330 NLRB 897 (2000): Found a subset of employer facilities inappropriate absent evidence of distinct administrative grouping, substantial interchange, significant functional integration, or separate supervision.

SecTek, Inc., 01-RC-347432 (Regional Election Decision)

A representation petition filed by United Federation LEOS-PBA seeking to displace incumbent union SPFPA at a security contractor’s New Hampshire facilities turned on a narrow question: did a collective-bargaining agreement expire at midnight beginning October 1, 2024, or midnight ending it?

The contract’s Scope of Agreement Article stated it would remain “in force and effect until 2400 hours on October 1, 2024.” SPFPA argued the contract expired at the close of September 30, meaning the petition—filed August 2—landed inside the 60-day insulated period when no rival petition may be filed. LEOS-PBA countered that “2400 hours on October 1” unambiguously designated the midnight concluding that date, placing the petition squarely within the preceding 30-day open period.

Acting Regional Director John D. Doyle, Jr. sided with LEOS-PBA. Applying the Board’s general rule from Hemisphere Steel Products and Williams Laundry—that an agreement effective “until” a given date does not include that date—the Regional Director nonetheless found that the “2400 hours” language constituted a “specific expression to the contrary” displacing the default rule. Citing guidance from the National Institute of Standards and Technology, he explained that while “midnight” is inherently ambiguous (it marks a boundary between days rather than a point within one), “2400” is a conventional designation for the end of a named day, just as “0000” denotes its start. The successor agreement negotiated by SPFPA itself used “2359 hours”—further confirming that the parties understood the difference.

Doyle also invoked the principle from Baltimore Transfer Company that where more than one construction is possible, the Board chooses the reading that avoids “suspension, loss, or extinguishment” of employees’ Section 7 rights—here, the right to change their bargaining representative. The burden of proving contract bar falls on the party asserting it (Road & Rail Services), and SPFPA failed to carry that burden.

An election by mail ballot was directed, with ballots to be counted June 9, 2026.

Significant Cases Cited

Traffic Management, LLC, 27-RC-381622 (Regional Election Decision)

Region 27 Regional Director Matthew Lomax has directed an election among traffic control employees at a Colorado contractor, rejecting the union’s proposed statewide unit in favor of one tied to the employer’s two existing branches.

The employer, Traffic Management, LLC, provides traffic control services for utility construction projects. Laborers Local 720 sought to represent all 107 of the employer’s Colorado employees — a unit defined by state boundaries, consistent with the union’s jurisdictional reach and the geographic scope of the incorporated Master Labor Agreements. The employer argued the unit should instead be defined by reference to its two Colorado branches, in Denver and Greeley, from which all employees are dispatched.

The Regional Director agreed with the employer on unit scope. Applying the standard from Wheeling Island Gaming and P.J. Dick Contracting, the Director emphasized that the question is not what unit is most appropriate, but whether the petitioned-for unit is appropriate at all. The 8(f) agreement between the parties contained no geographic limitation; the statewide scope derived from the Master Labor Agreements — instruments that tracked the union’s own jurisdictional boundaries, which the Board has long held irrelevant to unit determinations under Building Constructors Employer Association and CCI Construction Co.

The Director found that the record did not support a statewide unit. The employer had performed no work in 31 of Colorado’s 64 counties, and evidence of work outside a 30-mile radius of either branch was limited. Drawing on Oklahoma Installation Co., the Director declined to include territory where the employer had not worked and had no plans to work, finding that a statewide unit risked conferring representative status over employees not yet employed and depriving them of the right to choose their own representative. The parties’ bargaining history, while a relevant factor per Barron Heating & Air Conditioning, was not controlling; at most, it showed the employer had agreed the union would represent its employees in traffic control work — not that it had consented to a statewide unit scope.

Turning to the employer’s proposed alternative, the Director found it appropriate. Virtually all employees report to and are dispatched from either the Denver or Greeley branch, regardless of where in Colorado their work is performed. The unit was defined to include all full-time and regular part-time traffic control employees dispatched from those two branches.

The Director also found a multifacility unit appropriate under Exemplar, Inc., noting that employees at both branches share identical skills, duties, and working conditions; management and supervision are fully centralized; and the record showed no employee preference for per-branch representation.

An election was directed for May 14–15, 2026.

Significant Cases Cited

Universal Protection Service, LP D/B/a Allied Universal Security Services, 21-RC-378704 (Regional Election Decision)

Acting Regional Director David Selder dismissed a representation petition filed by Teamsters Local 542 seeking to represent “Escort Protection Agents” employed by Allied Universal Security Services at a confidential technology client’s San Diego facility. The sole issue was whether those employees qualify as statutory guards under Section 9(b)(3) of the NLRA — a classification that would bar their representation by the Teamsters, a union that admits non-guard employees.

The Agents’ duties centered on transporting the client’s field design engineers to public and private testing sites, but their responsibilities extended well beyond driving. They were required to maintain constant vigilance over their surroundings, prevent unauthorized persons from approaching the van, ensure that no photos were taken of vehicles or equipment, remain with the van whenever prototype devices were inside, and report security incidents to management. They held California guard licenses, received training on conflict de-escalation and body language, and signed nondisclosure agreements. They wore no uniforms and carried no weapons — deliberately, to avoid drawing attention to the client’s covert testing operations.

Selder applied the framework from The Boeing Company (1999), which holds that guard status attaches when security responsibilities are more than a minor or incidental part of an employee’s overall duties, and that reporting infractions — while insufficient alone — satisfies the enforcement requirement when coupled with other significant security responsibilities. He found the Agents’ monitoring, threat-avoidance, and public-engagement functions were their primary role, not an adjunct to driving.

The decision distinguished the Agents from the non-guard couriers in Pony Express Courier (1993) and Purolator Courier Corp. (Purolator II, 1990) on several grounds: Allied Universal holds itself out as a security company rather than a delivery service; the Agents receive substantive security training; the client’s property is of high intrinsic value dependent on confidentiality; and the Agents proactively engage with the public to neutralize threats rather than passively delivering goods. The decision drew closer analogies to Wright Memorial Hospital (1980) — where ambulance drivers who performed security rounds and reported irregularities to supervisors were found to be guards — and A.W. Schlesinger Geriatric Center (1983), where maintenance workers without uniforms or weapons who patrolled and reported incidents qualified as guards.

Because the Petitioner is a labor organization that admits non-guard employees to membership, Section 9(b)(3) bars its certification to represent a guard unit. The petition was dismissed.

Significant Cases Cited

]]><![CDATA[The President of the California State University Employees Union Is Making Strange Decisions]]>https://www.nlrbedge.com/p/the-president-of-the-california-statehttps://www.nlrbedge.com/p/the-president-of-the-california-stateMon, 04 May 2026 13:23:41 GMT

The California State University Employees Union (SEIU Local 2579) represents around 35,000 people employed by the CSU system. The small staff of CSUEU is also unionized and is represented by UAW Local 2350.

As legal counsel for UAW Local 2350, I have watched a bizarre series of events unfold over the last couple of weeks in which a fairly minor dispute about one employee’s probationary period has escalated to the point where the CSUEU staff union (UAW) is being forced to file a federal lawsuit against CSUEU (SEIU). The lawsuit would not resolve the dispute about the probationary period, but would just result in an order compelling CSUEU to arbitrate that dispute, something CSUEU is currently refusing to do.

Having the UAW and SEIU spend potentially tens of thousands of dollars of labor movement money just to get a federal judge to tell CSUEU President Catherine Hutchinson to follow the parties’ collective bargaining agreement and go to arbitration is pretty stupid. Hopefully this post will bring some attention to the issue so that the two unions can avoid that outcome.

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Timeline and Background

UAW Local 2350 has a collective bargaining agreement with CSUEU that establishes a one-year probationary period for newly hired exempt employees. During that one-year period, CSUEU is generally free to terminate probationary employees and the staff union is not permitted to grieve the terminations. If CSUEU does not terminate an employee in this period, then the employee exits probation and receives all of the protections of regular employees. Specifically, the contract states that:

Failure to terminate a probationary employee prior to the end of the probationary period shall give the employee permanent status in his/her job classification.

This is fairly standard probationary period language. Indeed, CSUEU’s own collective bargaining agreement with The California State University establishes the same thing for CSU employees. But CSUEU is currently refusing to follow this CBA provision and, more perversely, refusing to even arbitrate a grievance over it.

Here is what is happening:

On January 6, 2025, CSUEU hired a new exempt employee. This hire triggered a one-year probationary period with an end date of January 7, 2026.

On January 6, 2026, CSUEU President Hutchinson sent a letter to this employee stating that “CSUEU is extending your probationary period by 180 days.” The problem with this letter is that the CBA does not permit CSUEU to unilaterally extend the probationary period.

On January 8, 2026, a steward for the staff union filed a step-one grievance with President Hutchinson. The grievance states that “the CBA does not have a procedure for extending the probationary period of UAW employees” and concludes that, because one year has passed without this employee being terminated, this employee “has passed probation and has attained permanent status.”

On April 13, 2026, CSUEU President Hutchinson denied the step-one grievance, stating that this employee’s “probationary period was extended appropriately and in accordance with the Agreement. Her hire date is January 6, 2026, and she was notified of the extension of her probationary period within that timeframe.” The problem, once again, is that the CBA does not permit CSUEU to unilaterally extend the probationary period.

On April 16, 2026, UAW Local 2350 President Nicholas Gleichman filed a step-two grievance with President Hutchinson in which he stated that “The fact that the [probationary] extension was sent within a year is not relevant because there is no provision in the contract that allows management to unilaterally extend probation.”

Also on April 16, 2026, CSUEU President Hutchinson denied the step-two grievance, stating “the grievance is denied as untimely” because it was filed “more than three (3) months” after “the Union knew or reasonably should have known of the matter giving rise to the grievance.”

CSUEU President Hutchinson’s claim that the step-two grievance is “untimely” is clearly incorrect. The relevant part of the CBA states that:

A grievance must be presented in writing within thirty (30) days of when the employee or the Union had learned or may reasonably have been expected to have learned of its cause or within 20 days of receipt of an unfavorable response at Step 1.

In this case, the “unfavorable response at Step 1” occurred on April 13 and the step-two grievance was filed three days later on April 16. In denying the grievance as untimely, CSUEU President Hutchinson appears to simply ignore the bolded part of the provision above.

Thus, on April 16, 2026, UAW Local 2350 President Gleichman sent a response to CSUEU President Hutchinson requesting that she “please go ahead and move this to arbitration.”

On April 21, 2026, I was brought into the fray and reiterated President Gleichman’s request for arbitration and specifically requested “expedited arbitration,” which is an option in the CBA to conduct an arbitration where the arbitrator issues their ruling immediately after the hearing without requiring the parties to file post-hearing briefs.

At this point in the timeline, things were already getting a little bit silly. The CBA clearly does not permit CSUEU to unilaterally extend the probationary period. UAW Local 2350 clearly submitted both its step-one and step-two grievances within the contractual timelines for doing so. CSUEU can resolve all of this in an instant by agreeing to move the employee into permanent status. The only thing UAW Local 2350 could do to resolve it would be to stop pursuing it, but acceding to a situation where an employer can make all new hires probationary for as long as they want would essentially gut the union contract as its protections mostly apply to non-probationary employees.

Refusal to Arbitrate

It would already be a waste of UAW and SEIU money to send this sort of clear-cut dispute to arbitration, but pointless arbitration is not totally unheard of. The reason I am writing this piece is because CSUEU is refusing to even arbitrate the dispute.

On April 22, 2026, outside counsel for CSUEU sent an email stating that:

We received UAW’s arbitration demand. The grievance is not arbitrable. No grievance was presented to CSUEU at the time the employee’s probation was extended. Probationary releases are not grievable. We do not agree to expedited arbitration either.

This bit of text has several problems. A grievance was presented to CSUEU on January 8, two days after the probation was extended on January 6. While it’s true that “probationary releases” are not grievable, CSUEU did not “release” (i.e. fire) the employee. It extended their probationary period. Finally, expedited arbitration is something UAW Local 2350 has a right to. It does not require the agreement of CSUEU.

Beyond these problems though, this email appeared to be saying that CSUEU is refusing to arbitrate the grievance. I was so surprised by this that I asked CSUEU’s counsel to clarify whether this was true and on April 29, 2026, they did so in an email stating that “CSUEU does not agree to arbitrate. UAW abandoned the prior grievance. That matter is closed.”

Of course, this is not how arbitration agreements work. An employer is not permitted to just assert that they believe a union “abandoned the prior grievance” and then get out of arbitration. If that were the case, then arbitration agreements would be meaningless. If CSUEU really believes that UAW Local 2350 did not file their step-two grievance on time, then that is an argument for them to make to an arbitrator.

Of course, CSUEU knows this. As I noted already above, CSUEU’s own contract with The California State University also contains a grievance and arbitration provision and there is no world in which they would permit CSU to simply refuse to arbitrate a grievance by claiming CSUEU abandoned it.

So why is CSUEU acting like this with its own staff union? I don’t know for sure, but the most plausible explanation is that CSUEU President Hutchinson thinks that UAW Local 2350 does not have the resources or willingness to file a Section 301 lawsuit against CSUEU to secure a court order compelling CSUEU into arbitration. This is incorrect as I have been retained to do precisely that.

I guess I should be happy for the work, but I can’t help but think this is actually a tremendous waste of labor movement money. The UAW and SEIU should not send tens of thousands of dollars to outside lawyers (CSUEU has hired a law firm as well) to file papers back and forth in the Eastern District of California until a federal judge orders CSUEU into arbitration. Even arbitrating this dispute is kind of ridiculous. But litigating whether to arbitrate it before arbitrating it is truly insane.

Hopefully, someone will reach out to CSUEU President Hutchinson and talk her down from all this.

]]><![CDATA[05/01/2026: DFW Symphonies Guilty of Midterm Modifications]]>https://www.nlrbedge.com/p/05012026-dfw-symphonies-guilty-ofhttps://www.nlrbedge.com/p/05012026-dfw-symphonies-guilty-ofFri, 01 May 2026 12:25:33 GMT

Aqua-Chem Inc., 374 NLRB No. 102, 10-CA-345660 (Published Board Decision)

The Board affirmed an ALJ’s bench decision finding that a Knoxville, Tennessee employer violated Section 8(a)(1) of the NLRA by removing union organizing signs from a public right-of-way adjacent to its facility. The Board adopted the ALJ’s recommended order, modified to add a specific remedy requiring the employer to return the confiscated signs or reimburse the union for their cost.

The ALJ’s Analysis

ALJ Keltner Locke, in a bench decision issued June 16, 2025, found that Aqua-Chem removed signs placed by UA Local 102 and the Tennessee Pipe Trades Association on public right-of-way on May 28, 2024. The employer’s own position statement admitted the removal. The ALJ credited the testimony of the employer’s general counsel that she investigated whether the signs were on company property — and found they were not — but concluded the removal occurred before or regardless of that determination. The ALJ reasoned that a union retains an ownership interest in materials placed on public property, and that by removing the signs, the employer interfered with employees’ right to receive union communications during nonworking time. Relying on Troy Grove and Muncy Corp., the ALJ held the removal violated Section 8(a)(1).

The ALJ dismissed the remaining allegations. On the May 27 sign removal, the ALJ found the General Counsel failed to carry her burden of proof, crediting testimony that the employer’s facility was closed on Memorial Day and that no evidence linked any supervisor or agent to that removal. On the allegation that the employer attempted to enlist the City of Knoxville to remove union materials, the ALJ found the employer’s letter to the city’s public service director did not request any action — it merely disclaimed responsibility for the signs — and dismissed the allegation, invoking First Amendment petition principles. The ALJ also dismissed the allegation that the employer’s May 30 letter to the union promulgated an unlawful rule against logo use, finding the letter did not prohibit logo use generally and was directed at union officials rather than employees.

The Board’s Decision

The Board affirmed all of the ALJ’s rulings without additional analysis. In a footnote, the Board addressed the employer’s constitutional challenge — that Board members and ALJs are unconstitutionally insulated from presidential removal — on two independent grounds: (1) the employer waived the defense by raising it in its answer but failing to litigate it at hearing or in post-hearing briefs, citing United Government Security Officers of America International and Wisconsin Bell; and (2) the employer failed to demonstrate any harm resulting from the removal protections, citing Collins v. Yellen and related circuit authority. The Board also rejected the employer’s request to hold the case in abeyance pending Supreme Court resolution of the removal-protection issue.

Significant Cases Cited

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Garland Symphony Orchestra Association, Las Colinas Symphony Orchestra Association, and Symphony Arlington, 374 NLRB No. 103, 16-CA-264468 (Published Board Decision)

Three Dallas-Fort Worth area symphony orchestras operating as a single employer committed multiple unfair labor practices when they unilaterally modified their collective bargaining agreement mid-term and subsequently withdrew recognition from the musicians’ union, the Board held.

Mid-Term Modifications

The central legal question before the Board was whether Section 8(d)’s prohibition on mid-term modifications applied to the parties’ agreement, which the Respondent characterized as a contract of indefinite duration. The Respondent argued that Section 8(d)’s fixed-period contract language exempted indefinite-term agreements from the prohibition on unilateral modifications. The Board rejected that reading as contrary to both the plain text of the statute and the Supreme Court’s guidance in NLRB v. Lion Oil Co. that Section 8(d) serves a dual purpose — substituting collective bargaining for economic warfare and protecting employees’ rights to engage in concerted activity. Reading Section 8(d) to permit unilateral mid-term modification of an indefinite agreement, the Board concluded, would undermine both purposes. The Board further held that even assuming the Respondent could have lawfully modified the agreement after bargaining to impasse, no valid impasse existed: the Respondent had insisted to impasse over the exigent-circumstances clause (itself an unlawful subject given the clause would grant management virtually unlimited unilateral control), over the players committee structure (a non-mandatory subject), and despite the Union’s stated willingness to continue bargaining the day before implementation.

The Board affirmed violations for the wage reduction and the insertion of an overbroad exigent-circumstances clause. It reversed the ALJ, however, on the players committee allegation. Because the composition and selection procedures of the players committee are non-mandatory subjects of bargaining, the Supreme Court’s holding in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co. — that a “modification” under Section 8(d) is a prohibited unfair labor practice only when it changes a mandatory subject — precluded a Section 8(d) violation. The Board thus reversed the ALJ’s finding of a violation on that count.

Direct Dealing

The Board also reversed the ALJ’s direct-dealing finding. The ALJ had found a violation based on the Respondent’s issuance of individual contracts at below-contractual wage rates, but that theory was never alleged in the complaint or litigated by the parties. Under Pergament United Sales, an unalleged violation may be found only if it is closely connected to the complaint allegation and fully and fairly litigated. Neither condition was met here — the conduct involved different communications, different dates, different individuals, and different subject matter than what the complaint alleged, and no party briefed the issue.

Withdrawal of Recognition

The Board affirmed the unlawful withdrawal of recognition, applying Levitz Furniture‘s standard requiring proof by a preponderance of evidence that the union had actually lost majority support. Anecdotal oral complaints from musicians, without a written petition or other objective evidence, were insufficient to meet that burden.

The Board’s remedy includes make-whole relief under Thryv, Inc. for direct and foreseeable pecuniary harms, an affirmative bargaining order, rescission of unlawful contract modifications, pension fund contributions, and a notice-reading remedy.

Significant Cases Cited

South Sound Inpatient Physicians, PLLC and Joint Employer PeaceHealth, 374 NLRB No. 101, 19-RC-338479 (Published Board Decision)

The Board reversed a Regional Director’s finding that PeaceHealth, an acute-care hospital system in Washington State, was a joint employer of hospitalists formally employed by South Sound Inpatient Physicians, PLLC (Sound). The Union of American Physicians and Dentists had petitioned to represent a unit of approximately 29 physicians, nurse practitioners, and physician assistants working at two PeaceHealth hospitals, asserting joint-employer status.

The Board applied the standard set forth in Section 103.40 of its Rules and Regulations, which requires a putative joint employer to actually possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment. The Regional Director had found such control across four areas — hiring, supervision, wages, and benefits — but the Board disagreed on each.

On hiring, the Board held that PeaceHealth’s participation in a single interview and its role in credentialing hospitalists fell short of actually determining which employees would be hired. Credentialing requirements, the Board noted, amount to minimal hiring standards rather than control over individual hiring decisions.

On supervision, the Board found that PeaceHealth’s requirements — charting practices, training completion, committee participation, and patient-load management — amounted to telling employees what work to perform, not how to perform it, a distinction that Section 103.40 treats as dispositive. The Board also emphasized that Sound’s own onsite personnel directly supervised the hospitalists’ day-to-day work.

On wages, the Board rejected the Regional Director’s reliance on evidence that Sound withheld raises pending renewal of its contracts with PeaceHealth and that Sound passed along quality-metric bonuses funded by PeaceHealth. The Board found that this reflected Sound’s business decisions made in light of its contract’s financial terms — a feature common to any service-contracting relationship — not PeaceHealth’s actual determination of wage rates.

On benefits, the Board found that PeaceHealth merely required Sound to maintain malpractice insurance for the hospitalists, with no evidence that PeaceHealth selected the plan, carrier, or coverage level. The individual employment contracts between Sound and the hospitalists expressly left the amount of coverage to Sound’s discretion.

The Board reversed the joint-employer finding and remanded the matter to the Regional Director for further appropriate action.

Significant Cases Cited

City of Hope National Medical Center, 21-RC-335061 (Regional Election Decision)

SEIU United Healthcare Workers-West sought to add seventeen unrepresented radiation therapists at City of Hope’s Duarte, California acute care hospital to an existing wall-to-wall service unit that already includes a handful of radiation therapists at two affiliated outpatient clinics in Upland and Corona. The union sought the addition through a combined Sonotone/Armour-Globe self-determination election. Acting Regional Director David Selder dismissed the petition on dual grounds: the Board’s Health Care Rule bars the proposed unit, and the union failed to establish a sufficient community of interest in any event.

The Health Care Rule Problem

The Board’s Health Care Rule, 29 CFR § 103.30, limits acute care hospitals to eight defined bargaining units. The existing Duarte service unit is already nonconforming — it combines nonprofessionals, technical employees, and a small number of professionals. Adding the Duarte radiation therapists would deepen that nonconformity and invite further piecemeal organizing, precisely the unit proliferation Congress directed the Board to prevent. Under Crittenton Hospital, when nonconforming units already exist, new petitions must still conform as closely as practicable to the Rule’s prescribed units. The Regional Director rejected the union’s implicit argument that preexisting nonconformity excuses further departures.

The decision acknowledges that St. Vincent Charity Medical Center held that Armour-Globe self-determination elections do not automatically violate the Health Care Rule, because they expand an existing unit rather than create a new one. But St. Vincent still requires a showing of community of interest — a hurdle the petition could not clear.

Community of Interest

Applying the multi-factor standard from United Operations, the Regional Director found the community of interest evidence insufficient. The radiation therapists at Duarte and those at Upland/Corona share similar credentials, report to the same senior managers, and perform the same basic function of delivering radiation therapy. Those similarities, however, were outweighed by meaningful differences. Duarte is a full-service hospital handling high-complexity cases, inpatients, anesthesia, and clinical trials; Upland and Corona are outpatient clinics treating routine cancers with standard hours. Day-to-day supervision runs through separate lead therapists at each site. Interchange is infrequent and largely one-directional — Duarte therapists occasionally cover at the clinics, but the reverse is rare and difficult given differing skill sets. The record was also largely silent on the broader service unit’s composition, making it impossible to assess the Duarte therapists’ community of interest with the unit as a whole.

Common upper management and similar job duties alone were insufficient. As the Regional Director noted, citing United Operations, common supervision does not mandate unit inclusion where there is no meaningful interchange, contact, or functional integration.

The decision closes by noting that the union retains the option of pursuing a conforming unit of professional employees at the Duarte facility under the Health Care Rule.

Significant Cases Cited

  • St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Held that Armour-Globe self-determination elections do not violate the Health Care Rule because they expand existing units rather than create new ones, but still require a showing of community of interest between the voting group and the existing unit.

  • United Operations, Inc., 338 NLRB 123 (2002): Established the multi-factor community of interest test used to evaluate whether employees should be placed in a single bargaining unit, and held that common supervision alone does not mandate inclusion absent interchange, contact, or functional integration.

  • Crittenton Hospital, 328 NLRB 879 (1999): Clarified that where nonconforming units already exist at an acute care hospital, any additional petitioned-for units must conform as closely as practicable to the eight units prescribed by the Board’s Health Care Rule.

  • Warner-Lambert Co., 298 NLRB 993 (1990): Articulated the standard for Armour-Globe elections, requiring that the petitioned-for voting group share a community of interest with unit employees and constitute an identifiable, distinct segment of the workforce.

]]><![CDATA[04/29/2026: DC Circuit Construes "Labor Dispute" Narrowly]]>https://www.nlrbedge.com/p/04292026-dc-circuit-construes-laborhttps://www.nlrbedge.com/p/04292026-dc-circuit-construes-laborWed, 29 Apr 2026 12:32:05 GMT

Oncor Electric Delivery Company LLC v. NLRB, 24-1277, (DC Circuit)

The D.C. Circuit has ruled in favor of Oncor Electric Delivery Company, overturning an NLRB finding that the company committed unfair labor practices when it fired a union employee for testifying against smart meters before the Texas Senate.

Background

Bobby Reed, an Oncor trouble man and chief union spokesperson in contract negotiations, testified before a Texas Senate committee in October 2012 that Oncor’s new smart meters were causing fires and “damage to people’s homes.” Oncor fired him for violating a company policy against providing misleading information to public officials. An ALJ and then the Board found his testimony was protected concerted activity under NLRA Section 7.

The Jefferson Standard Framework

The central issue was whether Reed’s disparaging public testimony qualified for NLRA protection under the test drawn from the Supreme Court’s Jefferson Standard decision. Under that framework, an employee’s disparaging third-party communication loses protection if it either (1) fails to disclose its connection to an ongoing labor dispute, or (2) is so disloyal, reckless, or maliciously untrue as to forfeit protection. After the D.C. Circuit remanded the case in 2018 — finding the Board had skipped the first prong entirely — the Board on remand found that the “full context” of Reed’s testimony satisfied it.

The Court’s Analysis

The court rejected that reasoning. Reed introduced himself as a union representative and Oncor employee, described burned meter bases he encountered on service calls, and attributed the damage to smart meters — but said nothing about the stalled contract negotiations or any ongoing labor dispute. The court held that mere union membership, a general legislative lobbying context, or references to working conditions do not satisfy Jefferson Standard’s first prong. The Board’s reading, the court said, would “eviscerate” the requirement that protected speech actually express a connection to an employer-employee dispute.

The court also rejected the Board’s alternative rationale that Reed’s anecdote about a disgruntled customer “conveyed negative impacts on his terms and conditions of employment.” The majority found that characterization lacked substantial evidentiary support and, more fundamentally, that discussing working conditions without linking them to a labor dispute is insufficient. As the court noted, it had already faulted the Board in the 2018 remand for failing to “spell out the conditions under which a reference to an employer practice... could ‘indicate’ a link to a labor dispute” — and the Board failed again on remand.

The court declined to reach Oncor’s separate argument that the Board exceeded its remedial authority by ordering compensation for foreseeable pecuniary harms (a so-called Thryv remedy), since vacating the unfair labor practice finding made that question moot.

Significant Cases Cited

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International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied, JD(SF)-09-26, 16-CB-335527 (ALJ Decision)

An ALJ dismissed a complaint against IATSE Local 127 alleging that the union violated the NLRA by removing stagehand Aiden Whisenhunt from its exclusive hiring hall roster following an incident at a September 2023 Karol G concert in Dallas.

The complaint alleged two connected violations: that signatory employer Upstage Center unlawfully discharged Whisenhunt for concerted activity when he told a production manager that his break “wouldn’t be bullshit if y’all unionized,” and that Local 127 breached its duty of fair representation (DFR) by using that discharge to trigger removal under a last chance agreement.

ALJ Robert Ringler found that Whisenhunt’s comment plausibly constituted concerted activity — a clumsy attempt to enforce a contractual break provision under NLRB v. City Disposal Systems — and that the General Counsel made a prima facie showing under the Wright Line burden-shifting framework. The employer’s burden then shifted, however, and Ringler found that Upstage would have removed Whisenhunt regardless of the protected activity. Whisenhunt admitted to responding to a senior manager with profanity, turning his back mid-conversation, and failing to recognize the “social cue” not to repeat himself. Credible testimony from union officers confirmed that Upstage demanded his removal solely because of his rudeness. Ringler also noted that Upstage had no evident interest in avoiding unionization and that keeping Whisenhunt on the job was in its own interest — making its insistence on removal consistent only with genuine offense at his conduct.

On the DFR claim, Ringler applied the presumption of a DFR breach that arises when a union causes or contributes to a member’s discharge from an exclusive hiring hall under Stage Employees IATSE Local 720 (AVW Audio Visual). He found that Local 127 rebutted that presumption on two independent grounds: Whisenhunt’s nearly 30 workplace transgressions — including threatening coworkers and an admitted assault — had already cost the union two employer relationships, satisfying the reputation-and-employer-relationship defense drawn from Stage Employees IATSE Local 150 (Mann Theatres); and his documented volatility exposed the union to potential liability if his behavior escalated further. The ALJ also noted an absence of disparate treatment evidence, citing Stagehands Referral Service, and emphasized that Local 127 had afforded Whisenhunt far more chances than most labor organizations would.

Significant Cases Cited

Johns Hopkins Medical Associates, JD-24-26, 05-CA-319331 (ALJ Decision)

ALJ Arthur Amchan dismissed a complaint alleging that Johns Hopkins Medical Associates unlawfully discharged two registered nurses, Ashley Garcia and Chantal Lightsy, for engaging in protected concerted activity under the NLRA.

The nurses had raised workplace concerns — staffing shortages, defective equipment, and mandatory overtime — through emails, a staff meeting, and direct complaints to management. The General Counsel argued these constituted protected concerted activity under Section 7, and that the May 2023 discharges were pretextual, motivated by animus toward that activity rather than the stated reasons (improper IV administration and failure to report misconduct).

Applying the Wright Line burden-shifting framework, ALJ Amchan found that while the charging parties had engaged in protected concerted activity of which Respondent was aware, the General Counsel failed to establish animus directed at that activity or a causal link between the activity and the discharges. The ALJ found the discharges were instead driven by complaints from a departing coworker, Cathy Torgeson, whose reports to management predated most of the protected activity.

The ALJ did find troubling aspects of the employer’s conduct — including a false claim that it could not identify a fifth nurse (Abby Chen) shown in video evidence, and an investigation that appeared designed to build a case for termination rather than to fairly assess the conduct at issue. Nonetheless, under Electrolux Home Products and Cintas Corp., a finding of pretext does not automatically satisfy the General Counsel’s initial burden. Because the record showed ample personal animus toward the charging parties but no demonstrated connection to their protected workplace complaints, the complaint was dismissed.

Significant Cases Cited

Foss Maritime Company, 19-RC-379479 (Regional Election Decision)

The International Organization of Masters, Mates & Pilots petitioned to represent a unit of captains and chief mates employed in Foss Maritime’s Oceans/Project Services Division, which conducts long-haul ocean towing voyages — some lasting up to 105 days in remote or Arctic waters. The employer moved to dismiss, arguing that all 45 captains and chief mates are statutory supervisors under § 2(11) of the NLRA. Regional Director Ronald K. Hooks agreed and dismissed the petition.

Applying the framework from Oakwood Healthcare, Inc., the Regional Director found that captains and chief mates possess supervisory authority across multiple § 2(11) indicia, each exercised with independent judgment rather than as routine or clerical functions.

On hire, management testified that captains and chief mates participate in virtually every interview and that their recommendations are routinely adopted — including one instance where a manager hired a candidate over his own reservations on a captain’s say-so, and another where a captain’s assessment that a candidate wasn’t ready for a captain role resulted in that person being hired into the lesser chief mate position instead.

On reward and promote, captains conduct annual performance evaluations that serve as prerequisites for bonuses, tuition reimbursement, and promotion. Shoreside management — which has no direct visibility into crew performance during multi-month voyages — relies almost entirely on those evaluations to make promotion decisions. Chief mates’ recommendations carry similar weight; on at least one occasion, a chief mate’s recommendation produced an immediate pay raise without further investigation.

On assign and responsibly direct, the Regional Director distinguished Brusco Tug and Barge, Inc., in which the Board found no supervisory status where mates oversaw only a single deckhand and a single engineer. Here, vessels average roughly nine non-supervisory crew members per two supervisors — a ratio the Board in Brusco explicitly flagged as legally distinct from its one-to-one scenario. Captains develop and revise voyage and tow plans, issue standing orders and night orders, assign watch schedules and overtime, make “go/no-go” safety calls that shoreside management cannot override, and have been disciplined for failing to exercise their stop-work authority — a form of accountability the Board treats as evidence of responsible direction. Chief mates act as relief captains during the captain’s daily off-watch hours and, on more than four occasions in the past year, have managed vessels alone for extended periods while docked for maintenance.

On discipline, a captain issued a written warning to a cook after multiple coaching attempts failed; HR reviewed only the form of the discipline, not its substance. Captains can also confine crew members to quarters or remove them from the vessel at the next port of call without prior shoreside approval, and such removal routinely triggers a formal corrective action — and sometimes termination — by shoreside management.

The Regional Director declined to find supervisory status on the basis of suspension or discharge, finding the record insufficient on those indicia, and similarly found no evidence of involvement in transfers, layoffs, recalls, or grievance adjustment. Secondary indicia — including the absence of any other supervisor aboard vessel during lengthy remote voyages, the captains’ and chief mates’ different terms and conditions from the represented crew, and their role in policy development and customer relations — all weighed in favor of supervisory status.

Significant Cases Cited

  • Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the current three-part test for supervisory status under § 2(11), defining “assign,” “responsibly direct,” and “independent judgment.”

  • Brusco Tug and Barge, Inc., 359 NLRB 486 (2012): Held that tugboat mates overseeing only a single deckhand and single engineer were not supervisors, and set the crew-ratio benchmark that distinguishes supervisory from non-supervisory direction in the maritime context.

  • DirecTV, 357 NLRB 1747 (2011): Clarified that recommendations are “effective” for § 2(11) purposes when they are usually followed without independent investigation, and that a supervisor who merely initiates discipline must be shown to do more than trigger a review process.

  • Cook Inlet Tug & Barge, Inc., 362 NLRB 1153 (2015): Applied Brusco to find no supervisory status where vessels typically carried only one deckhand, making task assignments self-evident rather than judgmental.

  • Chevron Shipping Co., 317 NLRB 379 (1995): Held that directing work based on greater technical expertise rather than supervisory authority does not establish § 2(11) status, and that hazardous working conditions alone are not a mark of statutory supervisory authority.

Montgomery TV, 15-CA-323606 (Advice Memo)

This memo, which was issued on March 14, 2025 but only recently released publicly, is a short email indicating that the current General Counsel will not pursue charges based on non-compete agreements as the prior GC’s effort to establish such agreements as violations never resulted in a Board decision endorsing the theory.

]]><![CDATA[04/24/2026: Oddball Regional Election Decision About What Counts As a "Labor Organizations"]]>https://www.nlrbedge.com/p/04242026-oddball-regional-electionhttps://www.nlrbedge.com/p/04242026-oddball-regional-electionMon, 27 Apr 2026 12:32:10 GMT

SAAS Hotels NJ LLC D/B/a La Quinta Inn & Suites Fairfield and Rollo Hospitality LLC D/B/a Ramada By, 374 NLRB No. 99, 22-CA-315658 (Published Board Decision)

The Board entered a partial default judgment against one of two respondents — Rollo Hospitality LLC — after neither company answered a consolidated complaint alleging violations of Sections 8(a)(1), (3), and (5) of the NLRA. The case arose from charges that the two hotel operators, alleged to be alter egos, unlawfully abandoned their collective-bargaining obligations after Rollo was established in 2023 as a purported successor to SAAS.

Service and the Alter Ego Question

The Board declined to enter default against SAAS, finding that service had been made only on a co-owner of Rollo with no apparent connection to SAAS — not on any owner or agent of SAAS itself. Under Board Rules, complaints must be served on all parties. Although the Board has previously held that service on one alter ego constitutes service on the other, the Board distinguished those precedents, noting that SAAS had never admitted or been adjudicated an alter ego, and that the alter ego finding here rested solely on default. The motion as to SAAS was denied without prejudice.

As to Rollo, the Board deemed all uncontested complaint allegations admitted as true. It found Rollo to be an alter ego of SAAS, established in March 2023 as a disguised continuance of SAAS for the purpose of evading NLRA obligations.

Violations

The Board found that Rollo violated Section 8(a)(1) by prohibiting employees from discussing wages, telling employees they were no longer represented by Hotel and Gaming Trades Council, AFL-CIO, and threatening job loss if they continued to support the union. It violated Section 8(a)(3) and (1) by discharging five employees — Larissa Tosi, Kim Cochran, Milagros Payano, Jose Bernal, and Marleny Guerra — because of their union activity. It violated Section 8(a)(5) and (1) by refusing to recognize or bargain with the union, unilaterally changing multiple terms and conditions of employment upon the contract’s expiration, and refusing to furnish relevant information. The Board did carve out one information request — documents concerning any ownership interest in hotels other than the two respondents — finding that such information is not presumptively relevant to the union’s representational duties.

Remedy

The Board ordered reinstatement and full make-whole relief for the five discharged employees, including Thryv-standard compensation for direct and foreseeable pecuniary harms. Chairman Murphy and Member Mayer again noted, consistent with prior decisions, that they apply Thryv only in the absence of a majority to overrule it and remain open to reconsideration. The Board also ordered Rollo to rescind all unilateral contract changes, restore prior terms, remit withheld union dues, and furnish the outstanding information requests.

Significant Cases Cited

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Beleaf Medical, LLC, 374 NLRB No. 100, 14-RC-325871 (Published Board Decision)

This case presented the Board with a novel question: whether post-harvest cannabis workers at a Missouri cannabis company fall within the agricultural laborer exemption under Section 2(3) of the NLRA — and thus outside the Act’s protections entirely.

The United Food & Commercial Workers Local 655 petitioned to represent packaging, lab/kitchen, and fulfillment employees at BeLeaf Medical’s Cherokee Street facility in St. Louis. BeLeaf contested the inclusion of its 13 Post-Harvest employees, arguing they qualified as agricultural laborers exempt from the NLRA. Because Congress has since 1947 directed the Board to apply the FLSA Section 3(f) definition of “agriculture” in this context, the Regional Director analyzed BeLeaf’s workforce under that standard.

Applying a totality-of-circumstances, classification-by-classification analysis, the Regional Director concluded that none of the Post-Harvest classifications — Technicians, Leads, Trim Leads, or METRC Specialists — qualified for the agricultural exemption. The analysis turned on whether their work constituted “secondary” agricultural activity “incident to or in conjunction with” farming operations. Key findings cut against BeLeaf: the Post-Harvest department operates as a functionally separate unit with no employee interchange with the Cultivation or Harvest departments; the trimming, curing, and mechanized processing of harvested cannabis constituted a transformation from raw plant material into finished consumer products more analogous to manufacturing than to traditional farming; packaging cannabis into precisely measured retail units was a “preparation for sale” rather than a “preparation for market”; and Post-Harvest Technicians spend roughly 50 percent of their time on packaging and an additional 5 percent on prerolling — both squarely nonagricultural activities substantial enough to defeat the exemption even if other tasks were borderline. The METRC Specialists, spending 70–90 percent of their time on computer-based regulatory compliance work, were found to be furthest from any agricultural function.

The Board unanimously denied review, finding no substantial issues warranting it. Member Mayer wrote separately to emphasize that the agricultural/nonagricultural line remains inherently fact-specific and that the Board should apply the case-by-case inquiry with particular care in emerging industries like cannabis, whose novel operational processes may not map cleanly onto established doctrine.

Significant Cases Cited

  • Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755 (1949): Established the “two distinct branches” framework for the FLSA Section 3(f) definition of agriculture — primary meaning and the broader secondary meaning covering practices incident to farming.

  • Mitchell v. Budd, 350 U.S. 473 (1956): Held that workers engaged in transformative “bulking” of harvested tobacco were not exempt agricultural laborers under the FLSA.

  • Maneja v. Waialua Agricultural Co., 349 U.S. 254 (1954): Found, based on all the facts, that employees milling harvested sugar cane were covered by the FLSA because the process transformed the product from its raw natural state into something more akin to manufacturing.

  • Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996): Confirmed that the line between secondary agricultural activity and nonagricultural activity is not susceptible to precise definition.

  • Produce Magic, 311 NLRB 1277 (1993): Established that where employees perform both agricultural and nonagricultural work, the proper focus is whether the nonagricultural work is “substantial” enough to bring the employees within the Act’s coverage.

Strive Well-Being, Inc., JD(SF)-07-26, 21-CA-318148 (ALJ Decision)

An ALJ found that a Los Angeles wellness company violated the NLRA during a 2023 organizing campaign at its transit ambassador program, recommending the election — which the union lost 65-30 — be set aside.

Much of the decision turned on credibility. The ALJ largely discredited the General Counsel’s primary witness, a union supporter who insisted that garbled AI-transcription output accurately captured management’s statements and repeatedly defied the ALJ’s instructions during the hearing. A second General Counsel witness was fully credited, as was most of management’s testimony — except on the specific issues of benefit promises and job-loss threats.

On the merits, the ALJ sustained three categories of violations. First, management repeatedly told employees that Metro could cancel the pilot ambassador program if the union won, costing everyone their jobs — predictions the ALJ found lacked any objective basis under Gissel Packing Co. June 6 emails sent three days before the election reinforced the same message. Second, management unlawfully promised wellness benefits — massage chairs and food trucks — to employees who voted against the union. Third, asking employees at a group meeting to raise their hands for or against the union constituted unlawful polling and interrogation.

Several allegations were dismissed. Statements that employees would lose direct access to management if they unionized were evaluated under Tri-Cast, Inc. — still controlling at the time, though since overruled prospectively by Siren Retail Corp. (2024) — and deemed lawful campaign speech. Emails reminding employees of a contractual wage increase were lawful under Amazon.com Services LLC (2026) because they described an existing benefit and imposed no conditions. Two attendance policies were dismissed because evidence showed they were developed months before the employer learned of the union petition. An email criticizing the union organizer by name was protected employer speech under Section 8(c).

Significant Cases Cited

  • Gissel Packing Co., 395 U.S. 575 (1969): Employer predictions about the effects of unionization are lawful only if grounded in objective fact and framed as beliefs about consequences beyond the employer’s control.

  • NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): An employer violates Section 8(a)(1) by promising or granting new benefits during a union campaign to discourage union support.

  • Tri-Cast, Inc., 274 NLRB 377 (1985): Employer statements that direct employee-management relations would change under a union constitute lawful campaign speech. (Prospectively overruled by Siren Retail Corp., 2024.)

  • Stericycle, Inc., 372 NLRB No. 113 (2023): A facially neutral workplace rule is presumptively unlawful if employees could reasonably interpret it to restrict Section 7 activity, unless the employer shows a legitimate business interest not achievable by a narrower rule.

  • Amazon.com Services LLC, 374 NLRB No. 38 (2026): An employer may lawfully remind employees of existing benefits during an organizing campaign, so long as it does not suggest those benefits are contingent on rejecting the union.

RJ Staab Stone Company of Florida LLC, JD-22-26, 12-CA-334616 (ALJ Decision)

An ALJ has found that a small Florida stone fabrication company violated the NLRA by discharging an employee, delaying his final paycheck, and slashing his hourly rate in retaliation for protected concerted and union activity.

The case centers on Ronald Hemenway, a general laborer at RJ Staab Stone Company who began discussing wage shortages with coworkers in early January 2024, intervened when management moved to fire a colleague over pay disputes, helped organize a union meeting with the International Union of Bricklayers and Allied Craftworkers Local 8 Southeast, and ultimately texted the company owner that he would file a complaint with the Florida Department of Labor over unpaid wages. Within moments of that text, he was fired. His final paycheck arrived late, omitted reimbursable expenses and hours worked, and reflected a retroactive cut from $17 to $12 per hour — the state minimum wage.

Applying the Wright Line burden-shifting framework, ALJ Kimberly Sorg-Graves found that General Counsel established all three required elements: protected activity, employer knowledge, and animus sufficient to show a causal connection to the discharge. The ALJ credited the testimony of Hemenway and the union representative over the Staabs’ broad, conclusory denials, noting that the employer’s accounts shifted under questioning, lacked specific factual support, and were undercut by documentary evidence including a police report referencing “union matters” and text messages showing the owner fired Hemenway immediately after the Department of Labor threat. The Respondent’s claimed justifications — insubordination and responsibility for bringing back the fired coworker — were deemed pretextual, in part because Hemenway continued working without incident for eleven days after the coworker incident before being discharged.

The credibility findings were also colored by the Respondent’s near-wholesale failure to comply with a subpoena, producing only documents it deemed beneficial to its defense while offering implausible explanations for noncompliance. The ALJ drew adverse inferences accordingly.

The remedy follows standard Board formulas: reinstatement, backpay under F.W. Woolworth, interest per New Horizons compounded daily per Kentucky River Medical Center, expanded make-whole relief for foreseeable pecuniary harms under Thryv, tax gross-up under AdvoServ, and W-2 filing under Cascades Containerboard.

Significant Cases Cited

SOLERA HOLDINGS, INC. And Its Subsidiary IDENTIFIX, LLC, a Single Employer, JD-23-26, 16-CA-311941 (ALJ Decision)

An Administrative Law Judge has ruled that Solera Holdings, LLC and its subsidiary Identifix, LLC — acting as joint employers — violated Section 8(a)(1) of the NLRA by discharging a sales employee and by maintaining multiple overbroad work rules.

The Discharge

The employee, Julius Strickland, was terminated on January 5, 2023, after forwarding a text message from a former colleague to eight coworkers warning of an imminent 25 percent global layoff at Solera. The message turned out to be false, but Strickland had received it from a source he reasonably trusted and had no basis to believe was inaccurate. Respondents conceded the termination was based on the forwarded message and argued it was not protected concerted activity — and that even if it were, it was maliciously false.

ALJ Geoffrey Carter rejected both arguments. Applying Fresh & Easy Neighborhood Market, he found that forwarding the message was concerted activity because, at minimum, it was a preliminary communication seeking to induce group action about potential job security — a finding reinforced by coworkers who subsequently asked managers directly about layoffs. On the malicious-falsity defense, the ALJ applied Valley Hospital Medical Center and found Strickland acted in good faith, crediting evidence of his trust in the source. The ALJ also noted circumstantial evidence of animus: Respondents decided to terminate Strickland within roughly 20 minutes of learning about the message and never contacted him to hear his account.

Respondents’ alternate theory — that the termination was also unlawful because it was based on specific unlawful code provisions — failed on the merits. The ALJ found the record did not support that Respondents relied on any specific code provision; they used “code of conduct” only in a general sense.

The Work Rules

The ALJ applied the Stericycle framework — assessing rules from the perspective of an economically dependent employee contemplating protected activity — and found seven separate violations. Rules upheld as unlawful included: an outside-employment provision that could be read to require prior approval for union or concerted activities; a blanket no-solicitation rule containing no exceptions for nonwork time or areas; an investigation confidentiality provision prohibiting parties from discussing matters with other employees; a confidential information clause in the Employee Proprietary Information Agreement that covered compensation and personnel data without exception; nondisparagement and nonsolicitation clauses in the Non-Competition and Non-Solicitation Agreement; and a parallel confidentiality clause in the Termination Certification.

One provision survived — the bulletin board portion of the no-solicitation rule — because employees have no statutory right to use employer-owned equipment for Section 7 purposes absent evidence that it is their only reasonable communication channel. The confidential information definition in the NCNSA also survived because, unlike the EPIA, it imposed no affirmative directive on employees not to disclose.

Respondents raised a Section 10(b) timeliness defense to all work rule allegations. The ALJ sustained the defense for rules outside the code of conduct as to Strickland’s original February 2023 charges, but found the three code of conduct rules closely related to the original charge under the Redd-I framework; the remaining rules were saved by a timely May 2024 amended charge.

Respondents’ constitutional challenge to the agency’s adjudicative structure was denied, with the ALJ noting that ruling would require halting agency operations and that federal courts remain available to address the issue.

The remedy includes reinstatement, make-whole backpay calculated under F.W. Woolworth, expanded pecuniary relief under Thryv, and rescission of all unlawful work rule provisions.

Significant Cases Cited

  • Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current standard for evaluating work rules — whether a rule has a reasonable tendency to chill Section 7 rights from the perspective of an economically dependent employee — and displaced the prior Boeing categorical framework.

  • Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Defined “concerted activity” under an objective standard, holding that preliminary communications seeking to induce group action are protected even before overt group activity occurs.

  • Redd-I, Inc., 290 NLRB 1115 (1988): Set the three-part test for determining whether an untimely complaint allegation is “closely related” to a timely filed charge for purposes of the Section 10(b) limitations period.

  • Valley Hospital Medical Center, 351 NLRB 1250 (2007): Held that an employee who relays information received from another employee in good faith, reasonably believing it to be true, does not lose NLRA protection merely because the information proves inaccurate.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s make-whole remedy to include direct or foreseeable pecuniary harms beyond traditional backpay, including search-for-work and interim employment expenses.

Townsend Controls and Electric LLC, JD(SF)-08-26, 19-CA-315801 (ALJ Decision)

ALJ Mara-Louise Anzalone found that a Washington State electrical subcontractor violated Section 8(a)(1) of the NLRA by discharging a union journeyman for raising safety complaints on a construction jobsite, while dismissing a companion Section 8(a)(3) allegation for lack of evidence that decision-makers knew of the employee’s union-related plans.

Joel Leahy, an IBEW Local 191 journeyman, spent 12 days on a food processing facility expansion before being fired on April 8, 2023, ostensibly for physically assaulting a laborer from another contractor following a dispute over “trade stacking”—multiple trades working simultaneously in a confined space. He was discharged minutes after invoking Weingarten rights during an investigatory meeting.

The ALJ found Leahy’s safety complaints protected and concerted under Section 7, applying the “logical outgrowth” doctrine: though Leahy often confronted management alone, his conduct flowed from prior group safety discussions. His combative style and use of profanity did not forfeit statutory protection.

On the core liability question, the ALJ applied NLRB v. Burnup & Sims rather than Wright Line, reasoning that the alleged misconduct—a physical altercation and later combativeness at the discharge meeting—was inseparable from his ongoing protected activity. Under Burnup & Sims, good-faith belief in the misconduct is no defense; the assault must be proven. The ALJ found it was not: Leahy credibly denied physical contact, a coworker corroborated him, none of the opposing witnesses testified, and management’s own accounts were irreconcilable—most notably, testimony that the discharge decision was based on a report summarizing a meeting that had not yet taken place. Alternatively, the ALJ found Wright Line would yield the same result, citing the timing of the discharge, Respondent’s shifting rationales, a facially inadequate investigation, and the failure of the named decision-maker to testify.

The Section 8(a)(3) allegation failed because the only union activity at issue—Leahy’s statement to his foreman that he planned to contact Local 191—was met with the foreman’s open support, negating any inference that he relayed it to management. Without proof of knowledge by the decision-makers, the prima facie case collapsed.

Remedy includes reinstatement, backpay, and full make-whole relief under Thryv, Inc.

Significant Cases Cited

Pennsylvania American Water Company, 06-RC-382228 (Regional Election Decision)

A Regional Director in NLRB Region 6 has directed an election among production, maintenance, and clerical employees at Pennsylvania American Water Company’s Pittsburgh District, rejecting arguments that the petitioning independent union — Pennsylvania American Water Independent Union — lacked sufficient legal status to proceed.

The sole question before Regional Director Nancy Wilson was whether the Petitioner qualified as a “labor organization” under Section 2(5) of the NLRA, which broadly covers any organization in which employees participate that exists, at least in part, to deal with employers over wages, hours, grievances, or working conditions.

The Petitioner was formed in 2025 by a retired former union official and a local attorney after a current employee, Matthew Bails, approached them seeking to displace the incumbent Steelworkers affiliate. The organization had drafted a constitution and bylaws, filed for an IRS Employer Identification Number, and sought non-profit status — but had no dues revenue, no employee members, and had held no meetings with unit employees. Its officers were not employees of the company.

The Employer and the Intervenor (the Steelworkers local) argued this was insufficient: the Petitioner’s officers were not employees, no employees had actually joined, and the Petitioner’s attorney had a conflict of interest given his simultaneous representation of unit employees in a separate civil lawsuit seeking to invalidate the existing collective bargaining agreement. The Employer also floated an “alter ego” theory.

The Regional Director rejected all of these arguments. Under Coinmach Laundry Corp., East Dayton Tool & Die Company, and related Board precedent, an incipient union need not have actually represented employees or dealt with an employer to qualify — it is the intent of the organization that controls. Yale New Haven Hospital and Butler Manufacturing Company establish that structural formalities like a constitution, bylaws, or formal meetings are not prerequisites. The required 30% showing of interest constituted sufficient evidence of employee participation. As for the conflict-of-interest and alter ego arguments, the Regional Director found them legally irrelevant to the labor organization inquiry, noting the Employer cited no authority to support them.

A manual election is scheduled for May 13–14, 2026, with employees choosing between the Petitioner, the incumbent Steelworkers local, or neither.

Significant Cases Cited

  • Coinmach Laundry Corp., 337 NLRB 1286 (2002): An incipient union that has not yet represented employees may still qualify as a labor organization if formed for that purpose, and labor organization status does not require proof of actual dealing with an employer.

  • Electromation, Inc., 309 NLRB 990 (1992): Established that the statutory definition of “labor organization” under Section 2(5) of the NLRA is to be interpreted broadly.

  • Yale New Haven Hospital, 309 NLRB 363 (1992): Structural formalities — including a constitution, bylaws, meetings, or Department of Labor filings — are not prerequisites to labor organization status.

  • Edward A. Utlaut Memorial Hospital, 249 NLRB 1153 (1980): The intent of an organization is the critical factor in determining labor organization status, regardless of the stage of its development or activities not yet performed.

  • Comet Rice Mills, 195 NLRB 671 (1972): An organization that never represented employees still qualifies as a statutory labor organization if its efforts clearly envisaged employee participation and it existed for a statutory purpose, even if that purpose never came to fruition.

]]><![CDATA[04/22/2026: Three ALJ Decisions]]>https://www.nlrbedge.com/p/04222026-three-alj-decisionshttps://www.nlrbedge.com/p/04222026-three-alj-decisionsWed, 22 Apr 2026 15:18:38 GMT

Centers for Family Medicine, GP and HealthCare Partners Medical Group, P.C., JD(SF)-06-26, 21-CA-333729 (ALJ Decision)

An ALJ found that two Southern California physician management companies within the Optum/UnitedHealth Group corporate family violated the NLRA by conducting a mass layoff without bargaining and later withdrawing recognition of a newly certified union.

The Union of American Physicians and Dentists was certified in August 2023 to represent approximately 45 hospitalist physicians at several Orange County hospitals. Less than two months later, the employers terminated 10 unit physicians effective January 25, 2024, immediately relieving them of duties on October 26 as part of a pre-planned shift from fee-for-service to managed care.

The ALJ held the layoff decision was a mandatory subject of bargaining, rejecting the employers’ argument that it fell within the “core entrepreneurial control” exception of First National Maintenance Corp. v. NLRB. Because the employers continued providing the same services using contractors rather than employed hospitalists, the ALJ found the change more analogous to Fibreboard subcontracting — a change in degree, not kind. On effects bargaining, the ALJ found the employers’ simultaneous notification to the union and affected physicians, combined with the prior unilateral completion of the employee-selection process, foreclosed any meaningful opportunity to bargain. Post-hoc offers to discuss effects were insufficient. Under Wendt Corporation, the employers’ obligation was to bargain before implementing the change, not after.

The employers’ March 2025 withdrawal of recognition fared no better. Relying on an attorney’s unverified email claiming declarations from 70 percent of the unit, the employers failed to satisfy the objective-evidence standard under Levitz Furniture. The ALJ also found the withdrawal independently unlawful because the mass termination — which stripped 10 of approximately 45 unit members from the workplace shortly after certification — tainted any subsequent expression of lost support under the Master Slack Corp. four-factor framework. The ALJ ordered reinstatement, full backpay, make-whole relief under Thryv, and restoration of recognition.

Significant Cases Cited

  • Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964): Established that subcontracting bargaining-unit work without altering the basic nature of the business is a mandatory subject of bargaining.

  • First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Created a narrow exception to the bargaining duty for decisions involving fundamental changes to the scope and direction of the enterprise.

  • Wendt Corporation, 372 NLRB No. 135 (2023): Reaffirmed that employers must bargain before making unilateral changes during first-contract negotiations, overruling Raytheon Network Centric Systems.

  • Levitz Furniture Co., 333 NLRB 717 (2001): Required employers to possess objective evidence of an incumbent union’s actual loss of majority support before withdrawing recognition.

  • Master Slack Corp., 271 NLRB 78 (1984): Established the four-factor test for determining whether unfair labor practices tainted a decertification effort or withdrawal of recognition.

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Asarco, LLC, JD(SF)-05-26, 28-CA-255235 (ALJ Decision)

An administrative law judge (ALJ) issued a decision in a sprawling case arising from ASARCO LLC’s negotiations with the United Steelworkers and several other unions for a successor basic labor agreement (BLA). The case spans events from the 2018–2019 contract talks through the ensuing strike and its aftermath, involving allegations of bad-faith bargaining, unlawful unilateral changes, picket-line surveillance, and discriminatory post-strike discipline.

Bargaining / Impasse

The General Counsel alleged that ASARCO bargained in bad faith across numerous dimensions — including failure to meet at reasonable times, insistence on predictably unacceptable proposals (wages, health insurance, pension, and the copper price bonus), and inadequate responses to information requests — causing the October 2019 strike to be a ULP strike and the December 2, 2019 implementation of the last, best and final offer (LBFO) to be unlawful. The ALJ rejected all of these claims. Applying the five-factor impasse framework from Taft Broadcasting Co., the ALJ found the parties reached a genuine good-faith impasse on the critical economic issues of wages, health insurance, and pension after approximately a year of negotiations. ASARCO’s delays were attributed primarily to proposal preparation and responses to the union’s own information requests, and the record reflected both parties contributed to abbreviated bargaining sessions. The ALJ further found that the union’s post-impasse information requests were tactical delay devices submitted to avoid a valid impasse declaration, relying on ACF Industries, LLC. ASARCO’s LBFO implementation was therefore lawful, and the strike was an economic — not an unfair labor practice — strike.

Picket-Line Surveillance

The ALJ found that ASARCO’s contracted security firm, AFIMAC, engaged in unlawful surveillance (or gave the impression of surveillance) of picketers at the Mission and Silver Bell facilities by video recording their picketing activities, in violation of Section 8(a)(1). However, the record did not support finding surveillance at the Ray Complex or Hayden facilities.

Post-Strike Violations

The ALJ found multiple violations in the post-strike period. ASARCO continued to recruit replacement workers after the union made an unconditional offer to return to work on July 6, 2020, violating Laidlaw‘s reinstatement obligations under Section 8(a)(3) and (1); the number of affected employees was left for compliance. ASARCO also committed Section 8(a)(5) violations by unilaterally changing payroll dates at the Ray and Hayden facilities and implementing a fatigue monitoring system in haul trucks without bargaining to impasse. Additional violations were found concerning unilateral changes at the Amarillo and Hayden facilities — including reduction of rod-line shifts, position eliminations, and duty reassignments — and the discriminatory termination of seniority and layoff of employees at both facilities in 2021.

Individual Discriminatees

Applying Wright Line, the ALJ found that ASARCO violated Section 8(a)(3) and (1) by suspending and terminating employees Ben Lucero and Eli Laracuente. In Lucero’s case, the ALJ found evidence of disparate treatment — non-striking employees who committed similar or more serious safety infractions received last-chance agreements, while Lucero, a returned striker, did not — and that management’s proffered justification was unsupported by the record. Allegations concerning employees Puhara and McCray were recommended for dismissal.

Remedy

The ALJ ordered standard make-whole remedies including reinstatement and backpay computed under F.W. Woolworth Co., interest per New Horizons, compounded daily per Kentucky River Medical Center, and expanded make-whole remedies for direct and foreseeable pecuniary harms per Thryv, Inc.

Significant Cases Cited

  • Laidlaw Corp., 171 NLRB 1366 (1968): Established the framework governing an employer’s obligation to reinstate economic strikers upon their unconditional offer to return to work.

  • Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discriminatory discharge cases under Section 8(a)(3), requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the NLRB’s make-whole remedy to include direct and foreseeable pecuniary harms beyond traditional backpay.

  • Taft Broadcasting Co., 163 NLRB 475 (1967): Set forth the five-factor framework used to determine whether a genuine bargaining impasse exists.

  • ACF Industries, LLC, 347 NLRB 1040 (2006): Held that a union’s information requests submitted primarily to delay a valid impasse declaration — after months of extensive bargaining — do not forestall a lawful LBFO implementation.

Wrightsville Firewater LLC D/B/a John Wright Restaurant, JD-21-26, 05-CA-331875 (ALJ Decision)

A Pennsylvania restaurant illegally fired a server, maintained an unlawful wage-discussion policy, and interrogated employees about protected activity, an ALJ ruled April 21.

MacKenzie Caterbone worked as a server and banquet bartender at Wrightsville Firewater LLC d/b/a John Wright Restaurant. After she discussed tip distributions with coworkers and complained to a supervisor that the owner was improperly tipping himself, owner James Switzenberg fired her by text, explicitly citing “talking about pay” as grounds. At trial, Switzenberg claimed the real reason was that Caterbone had accessed a confidential tip sheet from a manager’s office — a justification ALJ Arthur Amchan rejected as fabricated, noting it appeared nowhere in the termination text or Switzenberg’s Board affidavit, and that the record did not establish Caterbone had entered the office at all.

Applying Wright Line, Amchan found the General Counsel established protected activity as a motivating factor and that the employer’s alternative explanation was pretextual. Caterbone’s wage discussions were inherently concerted under Aroostook County Regional Ophthalmology Center, and her complaints about tip distribution — including on behalf of a coworker — were independently protected under Senior Citizens Coordinating Council and Butler Medical Transport.

A staff memo prohibiting employees from discussing “salaries, hourly wages, and tip-outs” was separately found unlawful. The employer argued the memo’s author lacked authority to bind the company, but Amchan found she acted as an agent because employees would reasonably have understood her to speak for management. Before firing Caterbone, Switzenberg also questioned two coworkers about who had been discussing tips — unlawful interrogation under Rossmore House, the ALJ found, with no legitimate justification and no assurances against reprisal.

The ALJ ordered reinstatement, full backpay, search-for-work expenses, and rescission of the wage-discussion rule.

Significant Cases Cited

]]><![CDATA[04/17/2026: Fifth Circuit Rejects Coercive Subpoena Standard]]>https://www.nlrbedge.com/p/04172026-fifth-circuit-rejects-coercivehttps://www.nlrbedge.com/p/04172026-fifth-circuit-rejects-coerciveMon, 20 Apr 2026 12:14:03 GMT

Starbucks v. NLRB, 24-60500 (5th Circuit)

The Fifth Circuit vacated an NLRB order finding that Starbucks violated the NLRA by obtaining Board-issued subpoenas seeking information about protected union activity, holding that the Board applied the wrong legal standard to assess liability.

The dispute arose from a 2021 union organizing campaign at Starbucks’ La Quinta, California store. After the union won certification, Starbucks obtained subpoenas directed at two employee organizers, seeking communications related to union activity and documents provided to the Board. An administrative law judge revoked the subpoenas as overbroad. The Board then initiated a separate unfair labor practice proceeding over the subpoenas themselves, and both the ALJ and the Board found that obtaining them violated Section 8(a)(1) of the NLRA — applying the balancing test from National Telephone Directory Corp. as the governing liability standard.

The Fifth Circuit reversed. Under established Fifth Circuit precedent, the proper Section 8(a)(1) liability standard asks whether an employer’s conduct would “tend to be coercive” under the “totality of the circumstances.” The court held that National Telephone does not supply that standard — it is a discovery rule governing when subpoenas may be quashed based on confidentiality interests, balancing employees’ rights to keep protected activities private against an employer’s need for information to mount a defense. That balancing inquiry, the court explained, does not answer whether the employer’s conduct was coercive within the meaning of Section 8(a)(1).

The court rejected the Board’s argument that it had previously transformed National Telephone into a liability standard through Wright Electric, Inc., finding no such holding there. It similarly distinguished the Ninth Circuit’s decision in United Nurses Ass’ns of California v. NLRB, where that court found National Telephone was cited only for the general principle that union activity is protected from employer scrutiny — not as the governing test for liability, as the Board treated it here.

The court also flagged but declined to resolve what it called an “incongruity”: the Board itself issued the subpoenas at Starbucks’ request, included instructions explaining how recipients could petition for revocation, and then found that obtaining them was an unfair labor practice. The court left that question for the Board to address on remand, directing it to apply the totality-of-the-circumstances framework.

Significant Cases Cited

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Village Plumbing & Heating NY Inc., 374 NLRB No. 96, 29-CA-289082 (Published Board Decision)

The Board denied the General Counsel’s motion for default judgment against a New York plumbing contractor, finding that factual disputes about whether four workers were properly offered reinstatement required a hearing rather than summary resolution.

The case arose from a 2023 informal settlement agreement resolving Section 8(a)(3) and (1) charges — discrimination against union-represented workers. The settlement required the Respondent to reinstate two employees (Pejkovic and McIntosh) and offer employment to two job applicants (Cotto and Squicciarini). When the four workers showed up at the Respondent’s offices on November 27, 2023, the date they had provided in advance, they were turned away. The Regional Director ultimately issued a complaint for breach of the settlement, and the General Counsel moved for default judgment, arguing noncompliance was undisputed.

The Board majority (Chairman Murphy and Member Mayer) denied the motion, holding that the General Counsel bears the burden of showing no genuine issue of material fact before default judgment may enter. The Respondent filed affidavits asserting that the workers arrived without tools, were improperly dressed, refused to provide current contact information, used profanity, and stated they would never work for the Respondent — conduct the Respondent claimed forfeited their reinstatement rights. The majority found those conflicting accounts sufficient to require a hearing, noting that whether alleged discriminatee misconduct meets the threshold to relieve a respondent of its reinstatement obligation is a factual question not resolvable on a summary record. The proceeding was remanded to Region 29 for a hearing before an ALJ limited to the question of whether the Respondent complied with the settlement agreement.

Member Prouty dissented, arguing no genuine factual dispute existed. In his view, the record conclusively established that the discriminatees appeared at the appointed time and place and were not reinstated — the only fact relevant to the breach inquiry. He characterized the Respondent’s justifications as pretextual, noting that the Respondent never advised the workers in advance where to report, what tools to bring, or what dress was required, and that the Respondent already possessed contact information for all four individuals. He would have granted default judgment.

Significant Cases Cited

Dold Foods LLC, 374 NLRB No. 97, 14-RC-353703 (Published Board Decision)

A two-member Board majority denied the union’s request for review of a Regional Director decision setting aside a December 2024 representation election at a Wichita, Kansas food processing facility. The election, conducted under a Stipulated Election Agreement, produced a tally of 277 for and 266 against representation, with 11 void ballots — a margin exactly equal to the void ballot count.

The workforce includes a substantial number of employees whose first language is not English. The Regional Director sustained four employer objections, finding the election fatally compromised by: (1) a Swahili election notice containing a sample ballot missing the Swahili words for “yes” and “no”; (2) a Spanish election notice containing a sample ballot almost entirely in English, bearing only the Spanish word “muestra” (sample); (3) the use of English-only ballots without advising employees in the translated notices that actual ballots would not be in their language (contrary to NLRB Casehandling Manual guidance); and (4) the Region’s denial of the employer’s request for Swahili translators, despite advance notice that a substantial number of employees could not read or write in their own language and that all Board agents at the election were English-only speakers.

The Regional Director found these combined circumstances created “a high potential for voter confusion,” relying on the “laboratory conditions” standard from General Shoe Corp. and the closeness of the vote. She set aside the election and directed a rerun.

The majority denied review, declining to second-guess the Regional Director’s judgment. It distinguished prior cases — Superior Truss & Panel and Arthur Sarnow Candy — that denied objections related to the absence of translated ballots or interpreters, noting that those cases did not involve errors in the election notices themselves comparable to those here. The majority also emphasized the unusual number of void ballots.

Member Prouty dissented, arguing that review should be granted on two grounds. First, he contended the Regional Director applied the wrong legal standard: Board precedent requires evidence of actual voter confusion, not merely the “potential” or “likelihood” of confusion, to set aside an election. He read Superior Truss & Panel and Arthur Sarnow Candy as establishing this standard broadly, not just in cases involving a single type of alleged deficiency. Second, he argued the employer’s offer of proof was facially insufficient — it contained only a single, vague paragraph without identifying any witnesses, summarizing any anticipated testimony, or specifying how many voters were actually affected. Under Board rules and precedent, an offer of proof must be “reasonably specific in alleging facts which prima facie would warrant setting aside an election,” and he would have overruled the objections on that basis alone without reaching the merits.

Significant Cases Cited

RRI West Management, LLC, an Affiliate of the Westmont Hospitality Group, D/B/a Red Roof Plus+ San A, 374 NLRB No. 98, 16-CA-278283 (Published Board Decision)

The Board adopted an ALJ’s findings that a San Antonio hotel violated Section 8(a)(1) by discharging sales representative Diandra Diaz and by directing her to stop counseling coworkers about workplace concerns.

Diaz, a former assistant general manager reassigned to a sales role, raised COVID-related concerns with management and advised coworkers about quarantine and testing in early January 2021. Management then began deliberating internally about how to frame a termination, with an HR vice president suggesting the discharge could be “chalk[ed] up” to a 90-day probationary period. The ALJ found that sequence, analyzed under the Wright Line burden-shifting framework, established that Diaz’s protected concerted activity was the primary — and likely only — motive for her discharge, with the performance rationale entirely pretextual. The Board affirmed those findings and the separate violation based on the directive to stop counseling employees, substituting reliance on GC Exhs. 2 and 3 for the ALJ’s inadvertent citation to GC Exh. 5.

On remedy, the Board rejected the employer’s argument that Diaz’s backpay should be offset by unemployment compensation she received through Texas’s employer chargebacks program. Relying on NLRB v. Gullett Gin Co., the Board reaffirmed its longstanding policy against such deductions, reasoning that an employer’s mode of participation in a state unemployment program is a matter of state public policy outside the Board’s concern. The Board also amended the remedy to include make-whole relief for direct and foreseeable pecuniary harms under Thryv, Inc. Chairman Murphy and Member Mayer noted openness to reconsidering Thryv but applied it in the absence of a three-member majority to overrule it.

Significant Cases Cited

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

  • NLRB v. Gullett Gin Co., 340 U.S. 361 (1951): Supreme Court decision holding that the Board has discretionary authority to exclude unemployment compensation from backpay calculations, as such payments serve state public policy rather than any obligation of the employer.

  • Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the make-whole remedy to cover direct and foreseeable pecuniary harms beyond lost wages, including search-for-work and interim employment expenses.

  • Myers Industries, 268 NLRB 493 (1984): Defined protected “concerted activity” under Section 7 to include a single employee enlisting coworkers in mutual aid and protection.

  • Standard Dry Wall Products, 91 NLRB 544 (1950): Established the Board’s deferential standard for reviewing ALJ credibility determinations, requiring clear preponderance of evidence to overturn them.

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