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.

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

• Wright Line, 251 NLRB 1083 (1980): Establishes 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.

• Rossmore House, 269 NLRB 1176 (1984): Sets out the factors for evaluating whether employer questioning of employees constitutes unlawful interrogation under the NLRA.

• Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995): Holds that employee wage discussions are inherently concerted and protected under Section 7 of the NLRA.

• Senior Citizens Coordinating Council, 330 NLRB 1100 (2000): Holds that complaints about tip apportionment are protected concerted activity because tip distribution directly affects terms and conditions of employment.

• Butler Medical Transport, 365 NLRB 1095 (2017): Holds that an employee’s complaint on behalf of a coworker, rather than solely herself, does not strip the activity of its protected status.

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

• NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452 (5th Cir. 1983): Established the Fifth Circuit’s standard that Section 8(a)(1) liability turns on whether employer conduct would “tend to be coercive” under the totality of the circumstances.

• National Telephone Directory Corp., 319 NLRB 420 (1995): Board decision establishing a discovery balancing rule for determining when employees may withhold information from employer subpoenas based on confidentiality of protected activity.

• United Nurses Ass’ns of California v. NLRB, 871 F.3d 767 (9th Cir. 2017): Ninth Circuit decision upholding a Board finding that a quashed subpoena violated Section 8(a)(1), distinguished here because the Board cited National Telephone only for limited background principle rather than as the governing liability standard.

• Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983): Supreme Court decision holding that prosecuting a baseless lawsuit with retaliatory intent against an employee’s Section 7 activity is an enjoinable unfair labor practice, cited by the Fifth Circuit in a footnote flagging unresolved questions about employer liability for Board-issued subpoenas.

• Tesla, Inc. v. NLRB, 120 F.4th 433 (5th Cir. 2024): Recent Fifth Circuit en banc decision affirming that on remand following vacatur, the Board is free to reconsider the record and issue any decision supported by substantial evidence.

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

• ThyssenKrupp Stainless USA, LLC, 362 NLRB 621 (2015): The Board may deny a default judgment motion where genuine issues of material fact exist as to whether a settlement agreement was breached.

• Vocell Bus Co., 357 NLRB 1730 (2011): Default or summary judgment is inappropriate where a factual dispute exists concerning noncompliance with a settlement agreement.

• Hawaii Tribune-Herald, 356 NLRB 661 (2011): A respondent is generally relieved of its reinstatement obligation only in extraordinary circumstances, such as when a discriminatee has engaged in misconduct so flagrant as to render them unfit for further service.

• Key Handling Systems, Inc., 361 NLRB No. 2 (2014): A decrease in business is not a legitimate defense to noncompliance with a settlement agreement’s reinstatement terms.

• Timet, 251 NLRB 1180 (1980): Whether a discriminatee’s conduct meets the threshold to forfeit reinstatement rights is a factual determination not suited for summary resolution.

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

• General Shoe Corp., 77 NLRB 124 (1948): Established the “laboratory conditions” doctrine requiring the Board to maintain near-ideal conditions in representation elections to determine employees’ uninhibited desires.

• Superior Truss & Panel, Inc., 334 NLRB 916 (2001): Board adopted a hearing officer’s finding that neither a failure to provide translated ballots nor deficiencies in translated notices — absent evidence of actual voter confusion — warranted setting aside an election.

• Arthur Sarnow Candy, 311 NLRB 1137 (1993), enfd. 40 F.3d 552 (2d Cir. 1994): Board upheld a regional director’s conclusion that absence of an interpreter did not warrant setting aside an election where no evidence showed any eligible voter was confused or unable to make an informed choice.

• Jacmar Food Service Distribution, 365 NLRB 271 (2017): Established that an objecting party’s offer of proof must furnish evidence or descriptions of evidence that, if credited at a post-election hearing, would warrant setting aside the election.

• Lockheed Martin Corp., 331 NLRB 852 (2000): Articulated the standard that representation elections are not lightly set aside, and that the burden on a party seeking to overturn a Board-supervised election is a heavy one.

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.

Rieth-Riley Construction v. NLRB, 25-1073 (Sixth Circuit)

The Sixth Circuit denied Rieth-Riley Construction’s petition for review and enforced the Board’s order finding multiple NLRA violations arising from the company’s protracted bargaining dispute with Local 324, Operating Engineers. The relationship has been mired in a lockout, an ongoing strike, and serial litigation since 2018, making this Rieth-Riley’s third trip to the Sixth Circuit.

Unilateral Wage Increases. The court upheld the Board’s finding that Rieth-Riley violated Sections 8(a)(1) and 8(a)(5) by unilaterally raising wages in 2021 and 2022. The company argued the Union waived its right to bargain, pointing to executive testimony at a 2020 hearing about prior Davis-Bacon Act adjustments. The court agreed with the Board that general statements about possible future changes, without specifics on timing, amounts, or allocation, fell short of the “clear and unequivocal” notice required to establish waiver. The court also rejected Rieth-Riley’s constructive-notice theory, noting room remained to negotiate above the statutory floor, citing Standard Candy Co.

Withdrawal of Recognition. Substantial evidence supported the Board’s finding that Rieth-Riley withdrew recognition. The company conceded the Union’s presumption of majority support, so the only question was intent. The totality of conduct — years of unilateral wage increases, an explicit refusal-to-bargain letter, and failure to provide requested information — demonstrated an intent to completely sever the relationship, consistent with Arbah Hotel Corp. and Corson & Gruman Co.

Technical Refusal to Bargain. The court’s central holding rejected Rieth-Riley’s attempt to use a technical refusal to bargain to obtain judicial review of the Board’s affirmance of dismissed decertification petitions. The court held that circuit court jurisdiction under Section 9(d) extends only to representation decisions that create, clarify, or eliminate a bargaining obligation — typically after an election has been held and the Board has acted on its results, per Boire v. Greyhound Corp. The dismissal here merely maintained the status quo: the petitions were dismissed subject to reinstatement, ballots remained uncounted, and Rieth-Riley’s preexisting duty to bargain was unchanged. Citing Heartland Human Services, the court held that until a union is actually decertified, the employer’s obligations remain intact. The court distinguished cases Rieth-Riley relied on, including Transportation Maintenance Services (involving a final petition withdrawal that closed the case), older cases decided under the since-superseded good-faith-doubt standard replaced by Levitz Furniture, and unit-clarification cases where the representation decision directly controlled the unfair labor practice outcome. The court also rejected the argument that the Board endorsed Rieth-Riley’s theory by declining make-whole damages under Ex-Cell-O Corp., reading that as reflecting concerns about speculative damages rather than a jurisdictional concession.

Bargaining Order. The court declined to reach Rieth-Riley’s challenge to the scope of the bargaining order, finding it forfeited under Section 10(e) for failure to raise it before the Board.

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Significant Cases Cited

• Boire v. Greyhound Corp., 376 U.S. 473 (1964): Circuit courts may review Board certification orders only where the dispute results in an unfair labor practice finding, and Section 9(d) contemplates review only after an election and Board action on its results.

• Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Requires proof of actual loss of majority support for withdrawal of recognition, replacing the prior good-faith-doubt standard.

• Heartland Human Services v. NLRB, 746 F.3d 802 (7th Cir. 2014): Until a union is decertified following an election, the employer’s bargaining obligations remain unchanged and refusing them is an unfair labor practice.

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Rejected make-whole remedies in technical-refusal-to-bargain cases as too speculative where no successor agreement exists.

• Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983): A union’s waiver of statutory rights must be “clear and unmistakable.”

Earlier this month, Citizen Computing launched CheckMyHandbook.com, a website where you can upload your company’s handbook, your employment agreement, or any other document really to see whether it contains any provisions that might violate the National Labor Relations Act under the Stericycle standard.

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I did not make the website but I did help with the underlying inputs for it. In order to produce these inputs, I used the NLRB Law database at NLRBResearch.com to grab all of the ALJ Decisions and Published Board Decisions that cite to Stericycle. Each of those decisions were fed to a large language model with the instruction to pull out the exact text of every rule analyzed, to determine whether the decision found that the rule violated the NLRA or not, and then to provide a brief summary of the reasoning used by the ALJ or Board for its conclusion. All of that information is contained on this page of the CheckMyHandbook.com website.

Citizen Computing then took that information and did the heavy lifting of actually using it to build this tool. Once you upload your document, the tool spends a few minutes analyzing it and then produces a report like this one that flags any rules that appear problematic in light of the Stericycle case law.

For example, it flagged these two rules — a no-recording rule and a confidentiality rule — from an old Cumulus Media handbook as potential violations of the NLRA.

Try it out and see what you think. I think this is another great example of the ways in which Large Language Models can help make labor law more accessible to non-lawyers.

Korean Resource Center, Inc., 374 NLRB No. 94, 31-CA-282645 (Published Board Decision)

The Board adopted an ALJ’s dismissal of an unfair labor practice complaint against a Los Angeles nonprofit, finding that the discharge of a communications manager did not violate the NLRA.

The employer, KRC, discharged Sangho Hwang — its communications manager and a union representative — after he sent an unsolicited email to a third-party community activist critiquing a mural design being installed on KRC’s building. The union and General Counsel argued the email was protected concerted activity aimed at shielding coworkers from racially offensive imagery.

The ALJ found that while Hwang’s email grew out of prior concerted activity among KRC employees and thus qualified as “concerted,” it failed on two independent grounds. First, applying the “mutual aid and protection” standard, the ALJ concluded the email’s thrust was not employees’ working conditions but rather KRC’s public image and its relationships with community partners and funders — an entrepreneurial prerogative belonging to management. Second, applying Jefferson Standard, the ALJ found that even if the email had been initially protected, it lost that protection because it failed to put the third-party recipient on notice of an ongoing labor dispute — instead reading as an internal management disagreement, requiring an impermissible “inferential leap” to infer a labor-management conflict.

On the Section 8(a)(5) bargaining obligation, the ALJ applied 800 River Road and found no duty to bargain before discharging a unit employee under an established disciplinary policy, even absent prior comparable discipline.

The Board affirmed all findings without additional analysis, but two footnotes are notable. First, the Board declined to overrule 800 River Road (though Member Prouty signaled openness to revisiting it), mooting the Acting GC’s motion to withdraw an exception seeking that result. Second, the Board found it unnecessary to reach the Jefferson Standard disloyalty analysis, having agreed with the ALJ that the email lacked the required labor-dispute nexus.

Significant Cases Cited

• NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953): Employee communications with third parties lose NLRA protection if they fail to disclose the existence of an ongoing labor dispute or are so disloyal as to constitute “cause” for discharge.

• 800 River Road Operating Co., 369 NLRB No. 109 (2020): Employers are not required to bargain with a newly certified union before disciplining unit employees under an established disciplinary policy or practice.

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Defines the outer limits of Section 7’s “mutual aid or protection” clause, holding that the connection between employee conduct and their interests as employees can become too attenuated to qualify for protection.

• Xcel Protective Services, 371 NLRB No. 134 (2022): Third-party appeals retain NLRA protection only when they provide sufficient context to put the recipient on notice of an ongoing labor dispute without requiring an inferential leap.

• In re American Golf Corp. (Mountain Shadows), 330 NLRB 1238 (2000): Establishes the two-part test for determining whether third-party communications retain NLRA protection: the communication must signal a labor dispute and must not be so disloyal, reckless, or maliciously untrue as to forfeit protection.

University of Dayton, JD-20-26, 09-CA-362228 (ALJ Decision)

The University of Dayton notified 45 professional staff members, including biology lecturer Lis Regula, that their annual employment agreements would not be renewed, then presented them with a Separation and Release Agreement. The General Counsel challenged the agreement’s nondisclosure provision as an unlawful interference with Section 7 rights under Section 8(a)(1) of the NLRA.

ALJ Amchan dismissed the complaint on two grounds. First, he read McLaren Macomb narrowly, concluding its holding applies only where the employer has committed other unfair labor practices — a circumstance not present here. Any broader implication that a facially overbroad confidentiality clause alone violates the NLRA, he held, is dicta he was not obligated to follow. Second, applying the reasonable-employee standard, he found the nondisclosure clause not coercive on its face: a reasonable employee would understand “confidential personnel information” to refer to information about other employees — not to their own protected concerted activity such as discussing wages. He also distinguished McLaren Macomb factually, noting that the agreements there contained a broad non-disparagement clause absent here.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): The Board held that proffering a severance agreement whose terms have a reasonable tendency to interfere with Section 7 rights violates Section 8(a)(1) of the NLRA.

• Baylor University Medical Center, 369 NLRB No. 43 (2020): The Board held that a facially overbroad severance agreement does not violate the NLRA absent independently coercive circumstances surrounding its proffer.

• IGT, 370 NLRB No. 50 (2020): Companion decision to Baylor University applying the same standard permitting facially overbroad severance terms absent coercive circumstances.

• Clark Distribution Systems, 336 NLRB 747 (2001): Earlier Board precedent that Baylor University and IGT departed from, cited to illustrate the doctrinal history underlying McLaren Macomb.

Accenture D/B/a Accenture Flex, and Google, LLC/Alphabet Inc., as Joint Employers, 374 NLRB No. 86, 20-CA-353557 (Published Board Decision)

The Board granted summary judgment against Google, LLC, finding it violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Alphabet Workers Union-CWA Local 9009, which had been certified as representative of remote content creation workers supplied by joint employer Accenture Flex. Google contested the certification on the grounds that it was not a joint employer, but the Board held that joint employer status had been fully litigated in the underlying representation proceeding and could not be relitigated here. Google’s argument that changed circumstances — specifically, that it had stopped setting wage and benefit standards for Accenture Flex employees after the hearing — did not qualify as newly discovered or previously unavailable evidence. The Board extended the certification year under Mar-Jac Poultry Co. and declined to overrule Ex-Cell-O Corp., though Member Prouty dissented on that point, citing his position in Longmont United Hospital.

Significant Cases Cited

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

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Holds that the certification year begins running from the date the employer commences good-faith bargaining.

• East Michigan Care Corp., 246 NLRB 458 (1979): Evidence of circumstances that changed after the representation hearing does not constitute newly discovered or previously unavailable evidence.

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Declined to impose make-whole monetary remedies for an employer’s unlawful refusal to bargain.

• Longmont United Hospital, 374 NLRB No. 52 (2026): Recent Board decision reaffirming the denial of expanded make-whole remedies for refusal-to-bargain violations under Ex-Cell-O Corp.

Prime Communications, LP, 374 NLRB No. 88, 16-CA-309916 (Published Board Decision)

The Board adopted the ALJ’s findings that Prime Communications violated Section 8(a)(1) by issuing and maintaining severance agreements with unlawfully overbroad nondisparagement and confidentiality provisions. The Board’s analysis centered on McLaren Macomb, which the ALJ applied as controlling precedent. Notably, Chairman Murphy and Member Mayer applied McLaren Macomb as extant precedent while signaling openness to reconsideration in a future appropriate case — but with no three-member majority to overrule it, they applied it here.

The nondisparagement provisions required employees to refrain from any negative remarks about Prime, its business, and affiliated personnel; prohibited former employees from contacting any Prime employee; barred voluntary assistance to any agency or third party in actions adverse to Prime; and directed employees to notify Prime if contacted for information related to pending or future adverse actions. The ALJ found these provisions more restrictive than the language condemned in McLaren Macomb and not narrowly tailored. The confidentiality provisions — prohibiting disclosure of even the existence of the agreements, backed by $5,000-per-breach penalties — were also found unlawfully broad. The Board ordered Prime to rescind the overbroad language and notify all affected former employees in writing.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 48 (2023): Established that proffering or maintaining severance agreements with provisions that restrict employees’ Section 7 rights violates the NLRA, and that the agreement’s language — not the circumstances of its proffer — is the primary consideration.

• NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.), 346 U.S. 464 (1953): Supreme Court decision establishing that Section 7 protects employee communications with third parties related to ongoing labor disputes, provided the communications are not disloyal, reckless, or maliciously untrue.

• Baylor University Medical Center, 369 NLRB No. 43 (2020): Board decision overruled by McLaren Macomb that had shifted focus away from agreement language to the circumstances of the proffer.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Applied the principle that retroactive application of a new standard is not manifestly unjust where the remedy is merely an order to rescind overbroad language.

• Metro Networks, Inc., 336 NLRB 63 (2001): Pre-Baylor precedent cited approvingly in McLaren Macomb for the proposition that severance agreement provisions restricting Section 7 rights are independently unlawful regardless of other employer conduct.

International Longshoremen's Association, Local 1526 (Florida International Terminals), 374 NLRB No. 87, 12-CB-299858 (Published Board Decision)

The Board adopted an ALJ’s findings that ILA Local 1526 violated the NLRA in two respects. First, Local President Johnnie Dixon made repeated threats to retaliate against hiring hall users who filed NLRB charges or testified in Board proceedings — telling members that those who filed charges “would be dealt with” and telling a witness in a prior proceeding “I always get get-backs” — in violation of Section 8(b)(1)(A). Second, the Local breached its duty of fair representation to member Tony Williams in connection with his seniority claim for the 2019–2020 contract year, in violation of Sections 8(b)(1)(A) and 8(b)(2). The ALJ found the breach under both a fair representation analysis and a Wright Line discrimination analysis. The Board affirmed without addressing the General Counsel’s exception seeking additional, more specific findings, concluding they would not materially affect the remedy.

The Board modified the ALJ’s make-whole remedy to apply the Ogle Protection Service formula rather than F.W. Woolworth Co., applicable where the violation does not involve loss of employment or interim earnings that would reduce backpay over time. The Board also declined to order a letter of apology to Williams. Applying Thryv, Chairman Murphy and Member Mayer noted they would be open to reconsidering that precedent but applied it in the absence of a majority to overrule it.

Significant Cases Cited

• Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation when its conduct is arbitrary, discriminatory, or in bad faith.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discriminatory motivation in adverse employment actions.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded Board remedies to include compensation for direct and foreseeable pecuniary harms beyond lost wages.

• Ogle Protection Service, 183 NLRB 682 (1970): Established the make-whole remedy formula applicable where the violation does not involve loss of employment status or interim earnings.

• Ford Motor Co. v. Huffman, 345 U.S. 330 (1953): Held that a union must make an honest effort to serve the interests of all members without hostility in performing its representative function.

JetStream Ground Services, Inc., 374 NLRB No. 89, 10-CA-324158 (Published Board Decision)

The Board granted summary judgment against Jetstream Ground Services, an aviation ground support company at Charlotte Douglas International Airport, for refusing to bargain with SEIU Local 32BJ following the Union’s certification in May 2023.

Jetstream admitted its refusal to bargain but challenged the certification on two grounds: that the bargaining unit was inappropriate, and that the NLRA did not apply because the company was subject to the Railway Labor Act. The Board rejected both arguments, holding that all representation issues were litigated — or could have been litigated — in the underlying representation proceeding and could not be relitigated in an unfair labor practice case.

Jetstream also argued the case was moot because it had dissolved its business and no longer employed unit employees. The Board rejected that argument as well, reaffirming that business discontinuance does not automatically moot unfair labor practice allegations, and that a Board order binds successors regardless of closure.

The Board ordered Jetstream to bargain on request, with the certification year to begin running from the date good-faith bargaining commences.

Significant Cases Cited

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

• Redway Carriers, 301 NLRB 1113 (1991): Held that mere discontinuance of business does not necessarily render unfair labor practice allegations moot.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the certification year begins running from the date an employer commences good-faith bargaining, not from the certification date.

• New Process Steel v. NLRB, 560 U.S. 674 (2010): Confirmed the Board’s authority to issue decisions with a two-member quorum when a panel member is recused.

• Bluefield Hospital Co., LLC, 361 NLRB 1389 (2014): Clarified that an employer cannot defend an earlier refusal to bargain by pointing to subsequent events, though subsequent events may be raised in compliance proceedings.

Century Linen & Uniform, Inc., 374 NLRB No. 94, 03-CA-283806 (Published Board Decision)

The Board affirmed in part and reversed in part an ALJ decision arising from a commercial laundry employer’s September 2021 withdrawal of recognition based on a decertification petition.

Withdrawal of recognition: The Board found the decertification petition tainted by unlawful employer assistance. Departing from the ALJ—who relied solely on the employer’s tolerance of petition circulation during work time—the Board based its finding on a direct solicitation theory: Plant Manager Hathaway personally solicited employees to sign the petition alongside the employee circulating it. The Board invoked Pergament United States to reach this unalleged violation, finding it closely connected to the complaint and fully litigated. Because the petition was tainted, the withdrawal violated Section 8(a)(5).

Union access: The Board found three specific access violations the ALJ had not squarely resolved: (1) refusal on June 17, 2021 to send new employees to the breakroom to meet the union agent, departing from established practice; (2) prohibition in early September 2021 of a union steward from meeting employees outside the Belzano facility; and (3) denial of access to Belzano and Johnstown in mid-September 2021. The Board also grounded the September violations in Bottom Line Enterprises, holding that during active successor bargaining, the employer could not implement any unilateral change absent overall impasse—regardless of whether notice and opportunity to bargain had been given. The Board rejected the employer’s argument that the management-rights clause authorized unilateral access changes, finding that argument foreclosed under both Endurance Environmental Solutions (clear-and-unmistakable waiver) and MV Transportation (contract coverage), because the recognition clause expressly addressed union access rights. Chairman Murphy and Member Mayer reserved judgment on whether Endurance was correctly decided.

Unilateral wage increase: The Board adopted the ALJ’s finding that the employer’s August 2021 wage increase violated Section 8(a)(5), rejecting the employer’s contract-based defense because the agreement had expired before the increase was implemented.

Surveillance: The Board affirmed the ALJ’s dismissal. Gamble’s presence at a public bus stop was consistent with his normal duties, and no atypical conduct suggested deliberate observation of union activity. Member Prouty dissented on this point, finding that a supervisor’s follow-up inquiry the next day would lead reasonable employees to believe their union activity had been reported and monitored.

Interrogation: Reversing the ALJ, the Board found a Section 8(a)(1) interrogation where a supervisor approached an employee one-on-one and asked whether employees had received union voting materials, shortly after the unlawful withdrawal of recognition.

Statements about union status: Reversing the ALJ, the Board found violations based on statements by management on and after September 9, 2021, telling employees the union was “gone” and dues would no longer be deducted—conduct that amplified the unlawful withdrawal and further negated the union’s representative status in employees’ eyes.

Subpoena threat: The Board adopted the ALJ’s finding that Plant Manager Hathaway violated Section 8(a)(1) by telling employee Wilson she would not comply with a Board subpoena “because Dick’s got lawyers,” constituting an implied threat of retaliation. The Board rejected the employer’s repudiation defense under Passavant Memorial Area Hospital, finding Hathaway’s later statement that Wilson “had to go” did not address or retract the retaliation threat.

Significant Cases Cited

• Pergament United States, 296 NLRB 333 (1989): Establishes that the Board may find and remedy an unalleged violation if it is closely connected to the complaint’s subject matter and was fully litigated.

• Bottom Line Enterprises, 302 NLRB 373 (1991): During active bargaining for a successor agreement, an employer must refrain from all unilateral changes absent overall impasse, not merely provide notice and an opportunity to bargain.

• SFO Good-Nite Inn, LLC, 352 NLRB 268 (2008): When an employer unlawfully assists a decertification effort, the resulting petition is tainted and reliance on it to withdraw recognition violates Section 8(a)(5).

• Passavant Memorial Area Hospital, 237 NLRB 138 (1978): To effectively repudiate unlawful conduct, an employer’s disavowal must be timely, unambiguous, and specifically address the coercive conduct.

• Turtle Bay Resorts, 355 NLRB 1272 (2010): A unilateral change in an employer’s policy permitting union access to its premises impairs representation rights and violates Section 8(a)(5).

International Longshoremen's Association Local 1694, AFL-CIO (GT USA Wilmington, LLC), 374 NLRB No. 90, 04-CB-280810 (Published Board Decision)

The Board affirmed the ALJ’s findings that ILA Local 1694 violated NLRA Section 8(b)(1)(A) by threatening Standford Fowler after he wrote a letter to the ILA International complaining about a local merger, and violated Sections 8(b)(1)(A) and (2) by refusing to refer him through its exclusive hiring hall from March 31, 2021 through March 1, 2022, and again on March 5, 2022. Both violations were sustained under the Wright Line discriminatory-motivation framework and the duty-of-fair-representation framework.

The Board reversed the ALJ on one issue: whether the Local’s unlawful conduct caused Fowler to reasonably stop seeking referrals after March 5, 2022. The ALJ had dismissed this allegation, concluding Fowler voluntarily chose not to return. The Board disagreed, applying the futility doctrine: where a respondent’s unlawful conduct reasonably leads an applicant to believe that seeking referrals would be futile, a refusal-to-refer violation exists even without a specific referral request. The Board found that the Local’s year-long refusal to refer Fowler, followed by his forcible removal from the Port just days after being readmitted, combined with the Local’s failure to clarify the scope of GT USA’s limited administrative suspension, collectively gave Fowler a reasonable basis to believe further attempts would be futile. The Board also rejected the ALJ’s inference that Fowler’s decision to pursue an unfair labor practice charge rather than attend a belated grievance hearing demonstrated intent to abandon seeking work.

The remedy includes backpay, Thryv expanded make-whole relief for direct or foreseeable pecuniary harms, and a public notice reading at a union meeting — the last remedy ordered in light of the seriousness and duration of the violations and the involvement of the Local’s senior officers.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discriminatory-motivation unfair labor practice allegations.

• Vaca v. Sipes, 386 U.S. 171 (1967): Supreme Court decision holding that a union breaches its duty of fair representation when its conduct toward a unit employee is arbitrary, discriminatory, or in bad faith.

• Pipeline Local Union No. 38 (Hancock-Northwest, J.V.), 247 NLRB 1250 (1980): Held that a refusal-to-refer violation can be found even where an applicant stopped seeking referrals, if the respondent’s unlawful conduct made doing so futile.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established the Board’s expanded make-whole remedy requiring compensation for all direct or foreseeable pecuniary harms beyond lost wages.

• Construction & General Laborers, Local 304 (Associated General Contractors of California, Inc.), 265 NLRB 602 (1982): Found a refusal-to-refer violation where a union’s failure to clarify a misunderstanding about its referral procedures foreseeably discouraged an applicant from seeking work.

Browning-Ferris Industries of California, Inc., D/B/a BFI Newby Island Recyclery and FPR-II, LLC, D/, 374 NLRB No. 93, 32-CA-160759 (Published Board Decision)

The Board denied Browning-Ferris’s motion for reconsideration of its Second Supplemental Decision and Order finding Browning-Ferris a joint employer of Leadpoint Business Services employees and requiring it to bargain with Teamsters Local 350.

Browning-Ferris argued that any bargaining obligation should be limited to the specific terms and conditions it was found to actually control or co-control. The Board rejected this, explaining that the threshold question of whether a joint employer must bargain is analytically distinct from what it must bargain about. The Board applied the same standard bargaining order language it has long used in test-of-certification cases for joint employers generally, noting that the scope of Browning-Ferris’s specific bargaining obligations was not properly before the Board in this proceeding and could not be resolved on the existing record.

Significant Cases Cited

• Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015): Established the Board’s joint-employer standard holding that indirect or reserved control over employees can be sufficient to find joint-employer status.

• Browning-Ferris Industries of California, Inc., 363 NLRB 883 (2016): Found Browning-Ferris violated Section 8(a)(5) by refusing to recognize and bargain with the union as representative of the joint-employer unit.

• Retro Environmental, Inc./Green JobWorks, LLC, 365 NLRB 1327 (2017): Applied standard test-of-certification bargaining order language to joint employers.

• Joint Employer Status Under the National Labor Relations Act, 85 Fed. Reg. 11184 (2020): Rulemaking noting that the duty to bargain as a joint employer is analytically prior to and distinct from the scope of that bargaining obligation.

• Greyhound Corp., 153 NLRB 1488 (1965): Ordered joint employer respondents to bargain over standard terms and conditions of employment following the Supreme Court’s joint-employer ruling in Boire v. Greyhound Corp.

American Postal Workers Union, Local 512 (United States Postal Service), 374 NLRB No. 92, 05-CB-241037 (Published Board Decision)

The Board reversed an ALJ’s dismissal and found that American Postal Workers Union, Local 512 violated Section 8(b)(1)(A) by failing to process a member’s grievances and by providing her with fabricated tracking and case numbers in response to her requests for grievance documentation.

Union steward Curt Kretzer promised member JoAnn Britt he would file grievances over her 2017 emergency placement and discharge, then spent two years lying about having done so — ultimately texting her fake tracking and case numbers. The ALJ agreed that Kretzer’s conduct would have violated the Act but dismissed the complaint as time-barred under Section 10(b), finding that Britt had constructive notice of the violation by late 2017 or early 2018 when she learned the National Union had no record of her grievances.

The Board majority disagreed on the timeliness question. It held that the Respondent — which bears the burden on a Section 10(b) affirmative defense — failed to establish that Britt had clear and unequivocal notice before November 8, 2018 (six months before her charge was served). The majority emphasized that Kretzer’s continuous false assurances, his active involvement in Britt’s parallel EEO matter, and the equivocal nature of what she heard from other union representatives created conflicting signals that reasonably delayed her filing. On the merits, the Board found both violations: the failure to process grievances was arbitrary and in bad faith under Vaca v. Sipes, and the provision of false information independently violated Section 8(b)(1)(A) under Postal Workers, 328 NLRB 281 (1999).

Member Prouty dissented, agreeing with the ALJ that by early 2018 Britt possessed facts sufficient to trigger the limitations period and that her inaction for eight or more months thereafter rendered the charge untimely.

The remedy requires the Union to request that USPS consider Britt’s grievances, permit her to retain personal counsel at any grievance proceeding at the Union’s expense, and — if the grievances cannot be pursued and the General Counsel demonstrates they would have succeeded — make Britt whole with interest.

Significant Cases Cited

• Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation by acting toward bargaining unit employees in a manner that is arbitrary, discriminatory, or in bad faith.

• Airline Pilots Association v. O’Neill, 499 U.S. 65 (1991): Held that a union’s conduct must fall outside a wide range of reasonableness — that is, be wholly irrational or arbitrary — to constitute a breach of the duty of fair representation.

• Postal Workers, 328 NLRB 281 (1999): Found that a union steward violated Section 8(b)(1)(A) by lying about grievance filings and activity, thereby willfully misinforming an employee about the status of her representation.

• St. Barnabas Medical Center, 343 NLRB 1125 (2004): Held that the Section 10(b) limitations period does not begin until the charging party has clear and unequivocal notice — actual or constructive — of facts supporting a ripe unfair labor practice charge.

• A & L Underground, 302 NLRB 467 (1991): Established that a charging party’s delay in filing will not bar a charge when that delay results from conflicting signals or otherwise ambiguous conduct by the other party.

Rieth-Riley Constr. Co. V. NLRB, 25-1082, (Circuit Court)

The Sixth Circuit denied Rieth-Riley Construction Company’s petition for review and enforced the NLRB’s order requiring the company to bargain in good faith with Local 324, International Union of Operating Engineers. The case stemmed from a dispute that began in 2018 when the Union withdrew from a multiemployer bargaining arrangement to negotiate individually with Rieth-Riley and others.

Withdrawal from multiemployer bargaining. The court upheld the Board’s finding that the Union timely withdrew from the multiemployer unit. Drawing on Retail Associates and Charles D. Bonanno Linen Service, the court held that withdrawal is permissible any time before negotiations actually commence — regardless of whether a contract-modification deadline has passed. Because no real bargaining had begun when the Union gave notice in May 2018, the withdrawal was lawful. The court rejected Rieth-Riley’s argument that the Union had to satisfy both the contract-modification deadline and the pre-negotiations window, noting that Retail Associates‘s use of the disjunctive “or” permits withdrawal under either condition.

Unfair labor practices. Because the withdrawal was valid, the court affirmed that Rieth-Riley violated §§ 8(a)(1) and (5) of the NLRA by: (1) continuing to insist on multiemployer bargaining, (2) unilaterally granting wage increases in 2018 and 2020 without providing the Union notice and an opportunity to bargain, and (3) locking out bargaining-unit employees. On the 2018 benefit-fund clawback, the court found no economic exigency excusing the unilateral action — the company had known for at least a month before acting that it was in a §9(a) bargaining relationship and had effectively created the problem itself.

Strike characterization. The Board reversed the ALJ and found the 2019 strike was an unfair-labor-practice strike, at least in part. The Sixth Circuit affirmed. Evidence showed that employees remained aggrieved by the prior lockout, picket signs referenced the company’s unfair labor practices, and the General Counsel’s complaint had been distributed and discussed at the pre-strike membership meeting. Under Larand Leisurelies, unfair labor practices need only be “contributing causes” — not the primary driver — for a strike to qualify as an unfair-labor-practice strike.

Bargaining order. The court declined to review Rieth-Riley’s challenge to the Board’s affirmative bargaining order because the company failed to raise it before the Board, and identified no extraordinary circumstances excusing that failure under § 10(e) of the NLRA.

Significant Cases Cited

• Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404 (1982): Established that parties may withdraw from a multiemployer bargaining unit at any time before negotiations commence, provided adequate notice is given.

• Retail Associates, Inc., 120 NLRB 388 (1958): Board decision setting the framework for permissible withdrawal from multiemployer bargaining units, requiring notice prior to the contract-modification deadline or the commencement of negotiations.

• Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814 (6th Cir. 1975): Held that a strike qualifies as an unfair-labor-practice strike when employer misconduct is a contributing cause, even if not the primary motivation.

• NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer’s unilateral change to mandatory subjects of bargaining violates § 8(a)(5) of the NLRA because it circumvents the duty to bargain.

• Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991): Held that an employer commits an unfair labor practice by altering wages, hours, or working conditions without bargaining with the union.

Rieth-Riley Construction Co. V. Operating Engineers Local 324, 25-1823 (Sixth Circuit)

Rieth-Riley Construction Co. v. Operating Engineers Local 324 is a Sixth Circuit decision about whether a federal court could hear an ERISA claim that was, at its core, a dispute about obligations under the NLRA.

Rieth-Riley, a Michigan road construction company, had contributed to Local 324’s health, pension, and other benefit funds under a collective bargaining agreement that expired in 2018. The parties never reached a new contract. Under Sections 8(a)(5) and 8(d) of the NLRA, an employer must maintain the status quo of an expired CBA — including benefit fund contributions — while bargaining for a successor agreement. Rieth-Riley believed this obligation was mutual, meaning the funds were equally required to keep accepting its contributions. For years the funds agreed. Then in late 2024, the trustees reversed course and demanded Rieth-Riley sign a new compliance agreement before they would continue accepting contributions. Rieth-Riley refused, the funds stopped accepting payments, and Rieth-Riley sued in federal district court under ERISA, arguing the trustees had breached their fiduciary duties by refusing contributions they were obligated to accept.

The Sixth Circuit affirmed the district court’s dismissal, holding that the Garmon doctrine barred federal court jurisdiction over the claims.

The Garmon Doctrine

In San Diego Building Trades Council v. Garmon (1959), the Supreme Court established that when conduct is even arguably protected or prohibited by Sections 7 or 8 of the NLRA, courts must defer to the NLRB’s primary jurisdiction rather than adjudicate the dispute themselves. The rationale is twofold: preserving uniformity in national labor policy and making use of the Board’s specialized expertise. Critically, the doctrine focuses on the conduct being challenged, not the legal label a plaintiff puts on its claim. A party cannot escape Garmon simply by framing an NLRA dispute as an ERISA violation.

Rieth-Riley advanced two arguments for why Garmon should not apply. First, it argued the doctrine only applies to state-law claims — after all, Garmon was originally developed to prevent states from interfering in federal labor relations. The Sixth Circuit rejected this, noting that the Supreme Court applied Garmon to ERISA claims in Advanced Lightweight Concrete under nearly identical circumstances. Second, Rieth-Riley argued that because the NLRB has no jurisdiction to hear ERISA claims, Garmon deference makes no practical sense here. The court disagreed: the relevant question is not whether the NLRB can grant the specific relief requested, but whether the underlying conduct — the funds’ refusal to accept contributions — is arguably regulated by Sections 7 or 8 of the NLRA. It is, and that is enough to trigger Garmon.

The Independent Federal Remedy Exception

Garmon has a recognized exception for cases where the labor law question arises only as a collateral issue in a suit brought under an independent federal remedy. In those situations, the labor law question is just background context, and the federal court can resolve the case without wading into the NLRB’s domain. Rieth-Riley argued its ERISA fiduciary duty claims fit that description — the NLRA status quo obligation was merely a background fact, not the heart of the case.

The court rejected this framing by looking at what the complaints actually said. Both Rieth-Riley and the employee plaintiffs had explicitly alleged that the funds themselves had a statutory obligation under the NLRA to accept contributions. That made resolution of the NLRA question a necessary element of the ERISA claims, not a collateral one. As the court put it, the claims could succeed “only if” the funds’ conduct violated the NLRA — which placed the dispute squarely within the NLRB’s primary jurisdiction and outside the independent federal remedy exception.

Because the ERISA claims were preempted, the preliminary injunction failed for lack of any likelihood of success on the merits, and the proposed amended complaint — which relied on the same NLRA-dependent theory — was futile for the same reason.

The Concurrence

Judge Hermandorfer concurred in the judgment but wrote separately to flag what he described as serious tensions in Garmon doctrine. His primary concern is structural: federal courts have a virtually unflagging obligation to hear cases within their jurisdiction, and Garmon strips that jurisdiction based not on clear statutory text but on the NLRA’s policy penumbras. He also raised the Supreme Court’s recent decisions in Loper Bright Enterprises v. Raimondo — which requires courts to exercise independent judgment on statutory interpretation rather than deferring to agencies — and SEC v. Jarkesy — which limits agencies’ ability to adjudicate claims that resemble traditional legal causes of action. Both decisions, he suggested, may put pressure on Garmon‘s going-forward viability. He was careful to say the doctrine remains binding, but signaled that courts should resist expanding it mechanically beyond its established scope.

Significant Cases Cited

• San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959): Established that when conduct is arguably subject to Section 7 or 8 of the NLRA, courts must defer to the NLRB’s exclusive competence.

• Laborers Health & Wellness Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539 (1988): Applied Garmon preemption to ERISA claims where the underlying conduct was arguably an unfair labor practice.

• Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004): Articulated the “independent federal remedy” exception and held that Garmon bars federal claims that can succeed only upon proof of an NLRA violation.

• Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local 174, 598 U.S. 771 (2023): Clarified that the “arguably subject” standard asks whether the NLRA arguably protects or prohibits the conduct at issue, not whether a remedy exists before the Board.

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Held that courts must exercise independent judgment on statutory interpretation, which the concurrence invokes to question whether Garmon‘s deference to the NLRB on statutory questions remains valid.

International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and All, JD-19-26, 09-CB-318209 (ALJ Decision)

ALJ Sarah Karpinen dismissed a complaint alleging that IATSE Local 5, a Cincinnati stagehands union, unlawfully stopped referring hiring hall participant Noah Pabst to jobs and failed to provide him with information about job availability and referral requirements.

The case turned entirely on Section 10(b)’s six-month statute of limitations. Under Board precedent, that period runs from the date the charge is served on the respondent — not the date it is filed. Pabst filed his charge on April 21, 2023, but it was not served on the Union until May 17, 2023, making November 17, 2022 the operative cutoff date.

The ALJ found that Pabst was on notice of the alleged unfair labor practices by no later than September 22, 2022 — more than seven months before service. By that date, Pabst knew he was being bypassed for referrals in favor of lower-seniority participants, that Union officials were not responding to his messages, and that he was not receiving information about executive board proceedings. He had already threatened legal action and filed a complaint with the International Union. Under Encore Event Technologies, LLC and Local 25, IBEW (SMG), official notification of ineligibility is not required when the charging party already has clear and unequivocal notice of the facts underlying the charge.

The ALJ also rejected the argument that some ambiguity existed through December 5, 2022 — the date Pabst filed for unemployment — which the General Counsel sought to use as the start of the limitations period. While the Union’s acceptance of Pabst’s fine payment on August 15 and its mistaken September 6 job notification created some initial ambiguity, that ambiguity had fully dissipated by September 22. Nothing new happened on December 5.

The General Counsel attempted to salvage the complaint by moving mid-trial to amend it to allege December 5 as the operative start date. The ALJ denied the motion under the three-factor test from Stagehands Referral Service, LLC, finding no justification for the delay: the timeliness problem was apparent on the face of the original complaint, and the evidence cited as the basis for the amendment came from the General Counsel’s own witness and exhibit — not any surprise disclosure.

Significant Cases Cited

• Dun & Bradstreet Software Services, Inc., 317 NLRB 84 (1995): The Section 10(b) six-month limitations period runs from the date of service of the charge, not the date of filing.

• John Morell & Co., 304 NLRB 896 (1991): The Section 10(b) clock begins when the charging party receives clear and unequivocal notice — actual or constructive — that their statutory rights have been violated.

• Encore Event Technologies, LLC, 371 NLRB No. 161 (2022): A charging party is on notice of an unfair labor practice even without official notification when the underlying facts clearly indicate a statutory violation.

• IATSE Local 412 (Asolo Center for the Performing Arts), 308 NLRB 1084 (1992): Notice of an unfair labor practice will not be found where the respondent sent mixed signals or concealed facts preventing the charging party from understanding the basis for a charge.

• Stagehands Referral Service, LLC, 347 NLRB 1167 (2006): A motion to amend a complaint should be evaluated based on whether there was surprise or lack of notice, whether the General Counsel offered a valid excuse for the delay, and whether the matter was fully litigated.

InDyne, Inc., 19-UC-374516 (Regional Election Decision)

Regional Director Ronald K. Hooks clarified an existing bargaining unit at a U.S. Space Force Station in Clear, Alaska to include the Contract Special Security Representative (CSSR) classification, rejecting the employer’s argument that the position should be excluded as a statutory guard.

Timeliness

The Regional Director first addressed whether a unit clarification proceeding was appropriate mid-contract. Applying Bethlehem Steel Corp. and Premcor, Inc., he found the petition timely because the CSSR’s duties had shifted after the CBA took effect — specifically, the position had begun performing Information System Security Officer (ISSO) work already covered by the unit.

Guard Status

The employer argued the CSSR qualified as a guard under Section 9(b)(3) of the NLRA, which bars mixed units that include guards together with non-guards. The Regional Director disagreed. Applying the multi-factor test from Boeing Co., he found that the CSSR’s security-related duties — verifying clearances in a government database, performing daily SCIF facility walkthroughs, and processing a handful of access badges per week — were largely administrative and clerical. The CSSR carries no weapon, wears no uniform, and does not patrol the facility in any traditional sense. Crucially, the CSSR does not make final access decisions; those are reserved for military officials or the employer’s security manager. The Regional Director distinguished the CSSR’s relay-of-information function from the security dispatchers in Rhode Island Hospital, who actively monitored closed-circuit cameras and dispatched security personnel in response.

Unit Placement under Premcor

Turning to unit placement, the Regional Director applied Premcor, Inc. to find that the CSSR was not a new addition to the unit requiring accretion analysis, but rather a classification that should be viewed as already remaining in the unit. The record showed that the CSSR performs ISSO duties every workday, shares an office with the lead ISSO, serves as the lead ISSO’s alternate in several capacities, and collaborates with him on what he described as the “lion’s share” of his work. That overlap with existing unit functions, combined with the CBA’s broad historical work language covering administrative support and electro-mechanical systems operation, placed the CSSR within the unit’s existing scope. The Regional Director distinguished Walt Disney World Co. and AT Wall Company, where new classifications performed genuinely different work under different conditions.

Alternative Accretion Analysis

As an alternative holding, the Regional Director found that even if traditional accretion analysis applied, the CSSR shares an overwhelming community of interest with the existing unit under United Operations, Inc. The CSSR and unit ISSOs share a supervisor (the CE Manager), common skills and training, a physical workspace, daily contact, and significant job interchange.

Significant Cases Cited

• Premcor, Inc., 333 NLRB 1365 (2001): A new classification performing the same basic functions as existing unit employees should be viewed as remaining in the unit rather than added by accretion.

• Boeing Co., 328 NLRB 128 (1999): Sets out the multi-factor test for determining guard status, requiring that traditional security functions constitute more than a minor or incidental part of an employee’s responsibilities.

• Rhode Island Hospital, 313 NLRB 343 (1993): Security dispatchers who monitor closed-circuit systems and dispatch officers in response to incidents are guards because their observation-and-reporting function is a primary responsibility central to the employer’s security enforcement.

• Developmental Disabilities Institute, 334 NLRB 1166 (2001): A new classification performing the same type of work as existing unit employees at the same location falls within the unit without requiring a traditional accretion analysis.

• United Operations, Inc., 338 NLRB 123 (2002): Establishes the community-of-interest factors — including supervision, skills, job overlap, functional integration, and terms of employment — used to determine whether a group of employees belongs in an existing bargaining unit.

UPMC Washington, 06-RD-374370 (Regional Election Decision)

Acting Regional Director Tara Yoest dismissed a decertification petition filed by an individual employee on contract bar grounds.

The decertification petition was filed on October 1, 2025, by Gavin McNally, a unit employee seeking to remove SEIU Healthcare Pennsylvania as the exclusive bargaining representative of a large service and maintenance unit at UPMC Washington in Washington, Pennsylvania. The central dispute was whether a contract bar precluded the Board from processing the petition.

The Union and the Employer reached a tentative agreement (TA) on February 6, 2025, following about fifteen bargaining sessions over a successor contract. The TA expressly made ratification a condition precedent to any agreement. The unit voted to ratify on February 10, 2025, and the Union immediately notified both the Employer and the unit of ratification. Contract terms — including wage increases, bonuses, and scheduling changes — were implemented following ratification. A formal final contract document was not executed until November 2025, after the petition was filed.

The Regional Director applied the standard five-part test from Appalachian Shale Products Co. and found that the February TA satisfied all requirements: it was in writing, signed by both parties, covered the unit, and contained substantial terms and conditions of employment. The only contested issue was whether the effective and expiration dates were sufficiently ascertainable from the document itself. The Regional Director found that, read together, the TA’s three-year duration clause and its ratification-as-condition-precedent language established — within the four corners of the document — that the agreement became effective upon ratification. Under Swift & Co., parol evidence of the actual ratification vote was then permissible to confirm the effective date. Because the petition was filed approximately eight months after ratification, it was untimely regardless of whether the effective date was February 1 or February 10, 2025.

The Regional Director rejected the Petitioner’s argument that post-TA modifications to the draft contract showed the parties had not reached a meeting of the minds in February 2025. Applying St. Mary’s Hospital, she found that changes to a handful of seniority provisions during the drafting process were minor and did not undermine the comprehensive agreement already reached on substantial terms and conditions.

The Regional Director also rejected the Petitioner’s argument that the contract bar doctrine deserves no deference under Loper Bright Enterprises v. Raimondo, finding that Loper Bright governs the standard of judicial review of agency action and does not bind a Regional Director, who remains bound by existing Board precedent.

Significant Cases Cited

• Appalachian Shale Products Co., 121 NLRB 1160 (1958): Established the five basic requirements a collective bargaining agreement must meet to serve as a contract bar, including that ratification, when expressly made a condition precedent, must occur before the filing of a petition.

• St. Mary’s Hospital, 317 NLRB 89 (1995): Held that informal documents may serve as a contract bar so long as they are signed and contain substantial terms and conditions, and that minor changes made during finalization of a formal document do not necessarily show the parties failed to reach a meeting of the minds.

• Swift & Co., 213 NLRB 49 (1974): Held that where ratification is expressly a condition precedent, parol evidence may be used to establish that ratification in fact occurred, and that a report to the employer of ratification is normally sufficient to bar a petition.

• Cooper Tire & Rubber Co., 181 NLRB 509 (1970): Held that the duration and effective dates of a contract may be deduced from multiple provisions within the document itself, without resort to parol evidence.

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Supreme Court decision overruling Chevron deference; held inapplicable here because it governs judicial — not agency — review of agency action.

San Ramon Regional Medical Center, LLC, 32-RC-380462 (Regional Election Decision)

Regional Director Christy J. Kwon directed two Armour-Globe self-determination elections at San Ramon Regional Medical Center to determine whether groups of technical and professional employees wish to join an existing SEIU-UHW multi-facility unit covering service and maintenance employees at seven Tenet Healthcare hospitals.

Under Warner-Lambert Co. and Specialty Healthcare, reinstated by American Steel Construction, Inc., the Regional Director found both voting groups distinct and identifiable based on their primary work location in the main hospital building, and found that the employer failed to show that excluded outpatient employees shared an “overwhelming community of interest” with either group. For the technical employees, the Regional Director classified cardiovascular and anesthesia techs as technical despite the employer’s objections, distinguishing both from cases like Southern Maryland Hospital based on SRRMC-specific certification requirements and job duties. For the professional employees, the Regional Director excluded Registered Nurse First Assistants from the non-nurse, non-physician voting group, finding that their California RN licensure and scope of practice placed them in the registered nurse category under the Health Care Rule.

In both cases, differences in job duties and absence of interchange weighed against a community of interest with the existing unit, but strong functional integration and frequent contact — particularly among transporters, distribution techs, and pharmacy techs working different phases of the same patient care processes — outweighed those factors. Because professionals would be joining a mixed unit, they will receive a Sonotone ballot. Elections are set for April 15, 2026.

Significant Cases Cited

• Specialty Healthcare and Rehabilitation Center of Montgomery, 357 NLRB 934 (2011), reinstated by American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the “overwhelming community of interest” standard a party must meet to expand a petitioned-for voting group beyond the union’s proposed unit.

• Warner-Lambert Co., 298 NLRB 993 (1990): Established that an Armour-Globe election is the proper mechanism for adding unrepresented employees to an existing unit, requiring both a community of interest and a distinct, identifiable segment.

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Held that an Armour-Globe election may add employees to a nonconforming unit without violating the Health Care Rule, and that Regional Directors may rely on Health Care Rule community-of-interest determinations for nonconforming units.

• Rush University Medical Center v. NLRB, 833 F.3d 202 (D.C. Cir. 2016): Held that the Health Care Rule’s unit restrictions apply only to petitions for new units, not to Armour-Globe elections adding employees to an existing unit.

• Sonotone Corp., 90 NLRB 1236 (1950): Established the two-question ballot procedure by which professional employees may consent to inclusion in a unit with non-professional employees.

Amazon.com Services LLC, 374 NLRB No. 82, 29-CA-310869 (Published Board Decision)

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case arising from Amazon Labor Union’s 2022 election victory at Amazon’s JFK8 fulfillment center in Staten Island, New York.

Amazon contested the Union’s certification and refused to bargain, arguing that the Union was not a valid exclusive bargaining representative. The Board rejected that argument, finding that all representation issues raised by Amazon either were or could have been litigated in the underlying representation proceeding, and that Amazon offered no newly discovered evidence or special circumstances justifying reconsideration.

Amazon also argued the charge was untimely under Section 10(b) of the NLRA because the Union’s initial bargaining demand predated the charge by more than six months. The Board disagreed, reasoning that the Union had requested bargaining immediately after the election, that the Regional Director had certified the Union in January 2023, and that the Union filed its charge within weeks of that certification. Because Amazon openly acknowledged it was “testing certification” and had no intention of bargaining, any further bargaining demand would have been futile. The Board also relied on the principle that a continuing refusal to bargain following certification constitutes an ongoing unlawful act.

Amazon raised several constitutional defenses, including challenges to Board member removal protections and the Board’s combined prosecutorial and adjudicatory functions. The Board rejected all of these, citing Supreme Court and circuit court precedent holding that such structures do not violate due process and that constitutional removal protections claims require a showing of actual harm, which Amazon did not demonstrate.

On remedy, the Board ordered Amazon to bargain on request and to begin the one-year certification bar from the date it commences good-faith bargaining. The Board declined to impose additional remedies requested by the General Counsel, such as a notice reading in English and Spanish. Member Prouty dissented in part, arguing for the notice reading remedy, multilingual posting, and consequential damages under a standard he advocated in Longmont United Hospital.

Significant Cases Cited

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins running from the date the employer commences good-faith bargaining, not from the date of certification.

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice proceeding.

• Bally’s Park Place, Inc., 356 NLRB 1147 (2011): A continuing refusal to bargain following a union’s certification constitutes an ongoing unlawful act.

• Children’s Hospital of Michigan, 302 NLRB 235 (1991): An employer’s overt declaration that it will not bargain renders further bargaining demands by the union futile and itself constitutes a refusal to bargain.

• Ex-Cell-O Corp., 185 NLRB 107 (1970): The Board declined to award consequential damages for an employer’s unlawful refusal to bargain; the Board majority reaffirmed this precedent, while Member Prouty dissented in favor of overruling it.

Curaleaf Massachusetts, Inc., 374 NLRB No. 83, 01-CA-349176 (Published Board Decision)

Curaleaf Massachusetts, a cannabis dispensary in Oxford, Massachusetts, refused to bargain with UFCW Local 1445 following the union’s certification after an April 2024 election. The Regional Director certified the union in July 2024, and the Board denied Curaleaf’s request for review in January 2026.

The General Counsel moved for summary judgment after Curaleaf admitted it refused to bargain but contested the validity of the certification based on objections to the election. The Board granted the motion, finding that all representation issues had been or could have been litigated in the underlying representation proceeding. Because Curaleaf offered no newly discovered evidence and identified no special circumstances, the Board held that no representation issues remained properly litigable in the unfair labor practice proceeding, and found a violation of Section 8(a)(5) and (1) of the NLRA.

The Board also rejected Curaleaf’s due process affirmative defense — that the complaint was premature because the representation case was not yet final — holding that the duty to bargain attached upon issuance of the certification, not at the conclusion of any further proceedings. The Board ordered Curaleaf to bargain on request and, consistent with standard practice, tolled the certification year to begin running from the date good-faith bargaining commences.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice case.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins to run from the date the employer commences good-faith bargaining, not from the date of certification.

• Allstate Insurance Co., 234 NLRB 193 (1978): An employer’s duty to bargain attaches upon issuance of the certification of representative.

UPS Supply Chain Solutions, Inc., 374 NLRB No. 61, 32-CA-309933 (Published Board Decision)

The Board issued a brief supplemental decision in this test-of-certification refusal-to-bargain case, resolving the one remedial question it had previously held in reserve.

UPS Supply Chain Solutions had already been found to have violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Teamsters. The sole issue here was whether the Board should overrule Ex-Cell-O Corp. and require employers in test-of-certification cases to compensate employees for the economic harm caused by the unlawful failure to bargain — a remedy the General Counsel had requested.

The majority declined, citing its February 2026 decision in Longmont United Hospital, which had already rejected that expansion of remedial practice. Because that question was now settled, the Board also dismissed as moot the General Counsel’s subsequent motion to withdraw the overruling request.

Member Prouty dissented on the remedy, reiterating his position from Longmont United Hospital that Ex-Cell-O Corp. should be overruled and that employers should be required to make employees whole for quantifiable economic harm flowing from an unlawful refusal to bargain.

Significant Cases Cited

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Established that the Board will not order compensatory relief for employees when an employer unlawfully refuses to bargain in a test-of-certification case.

• Longmont United Hospital, 374 NLRB No. 52 (2026): Reaffirmed Ex-Cell-O Corp. and declined to expand remedies for refusal-to-bargain violations in test-of-certification cases.

Peco Foods, Inc., 374 NLRB No. 81, 15-RC-343034 (Published Board Decision)

This is a representation case in which the Board denied the employer’s requests for review of the Regional Director’s decisions directing a union election.

The central dispute concerned the location of the election. The Regional Director initially scheduled the election at the employer’s facility, but the employer refused to allow it to proceed as directed. In response, the Regional Director ordered an off-site election. The Board majority upheld that decision as a proper exercise of the Regional Director’s discretion, while declining to rely on the Regional Director’s application of Austal USA, LLC or her reference to unproven allegations against the employer from separate proceedings.

Member Prouty concurred in the result but wrote separately to argue that the Regional Director had correctly applied Austal USA, LLC and that the Board should reconsider its longstanding practice of defaulting to employer-premises elections. In his view, Regional Directors should weigh the Austal factors in all representation elections and should give serious consideration to mail ballot elections, which he argued enhance accessibility and reduce concerns that employer control of the election site could compromise laboratory conditions.

The Board also addressed procedural issues with the employer’s filings, noting that incorporating prior filings by reference violates Board rules requiring requests for review to be self-contained documents, and that filing more than one request for review of the same Regional Director action is prohibited under Board rules. Even setting aside those procedural defects, the Board denied the third request on the merits, finding the employer had not presented evidence of disenfranchisement sufficient to warrant a hearing.

Significant Cases Cited

• Austal USA, LLC, 357 NLRB 329 (2011): Established factors for Regional Directors to consider when determining the location of representation elections.

• Omnisource, LLC, 373 NLRB No. 134 (2024): Recent decision in which Member Prouty dissented to argue that the Board’s default preference for employer-premises elections inadequately accounts for employer partiality in representation proceedings.

• Wolf Creek Nuclear Operating Co., 365 NLRB 574 (2017): Addressed the standard for relitigating unit appropriateness where a prior determination has already been made.

• 2 Sisters Food Group, Inc., 357 NLRB 1816 (2011): Recognized that employers are parties to representation proceedings and are not neutral actors with respect to election conditions.

Blue Tarp reDevelopment, LLC D/B/a MGM Springfield, 374 NLRB No. 84, 01-CA-356311 (Published Board Decision)

MGM Springfield operates a casino in Springfield, Massachusetts. Following a secret ballot election in March 2024, the Regional Director certified New England Joint Board, UNITE HERE as the exclusive bargaining representative of the casino’s table games dealers and poker staff. The employer refused to bargain, contesting the validity of the certification based on election objections.

The Board granted summary judgment. It found that all representation issues raised by the employer had been, or could have been, litigated in the underlying representation proceeding. Because the employer offered no newly discovered evidence and no special circumstances warranting reexamination, those issues were not properly relitigable in an unfair labor practice proceeding. The Board also rejected several affirmative defenses, including a Section 10(b) statute of limitations argument (unsupported by facts), a claim that the complaint was void due to the Board lacking a quorum (the General Counsel has independent authority to issue complaints), and a claim that the employer had previously stipulated to the bargaining unit’s appropriateness (which precluded later denial).

The Board found a violation of Section 8(a)(5) and (1) of the NLRA and ordered the employer to bargain on request. Following Mar-Jac Poultry Co., the certification year was reset to begin running from the date the employer commences good-faith bargaining.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues previously litigated cannot be relitigated in a subsequent unfair labor practice proceeding.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Holds that the certification year begins to run from the date the employer first bargains in good faith, not the date of certification.

• Frontier Hotel, 265 NLRB 343 (1982): Authorizes the Board to take official notice of the record in an underlying representation proceeding in a subsequent unfair labor practice case.

• Pallet Cos., 361 NLRB 339 (2014): Confirms that the General Counsel has independent authority to issue unfair labor practice complaints regardless of whether the Board has a valid quorum.

• Wismettac Asian Foods, Inc., 370 NLRB No. 62 (2020): Holds that a respondent’s denial of a fact previously stipulated to in a representation proceeding raises no litigable issue in a test-of-certification proceeding.

26-05 CY26QTR2 - Interest Rates, OM 26-05, (OM Memo)

The interest rate applied to monetary remedies at the Board has ticked down from 7 percent to 6 percent for dates between April 1, 2026 and June 30, 2026.

World Shipping Council v. FMC, 24-1298 (DC Circuit)

The D.C. Circuit’s decision in World Shipping Council v. Federal Maritime Commission drew on NLRA and NLRB precedent to resolve a key question: whether an agency lacking ratemaking authority can nonetheless consider pricing in evaluating reasonableness.

The court drew on this precedent when responding to the World Shipping Council’s argument that no agency without ratemaking power can permissibly use rate levels as a measure of reasonableness. The court rejected that argument by analogy to the NLRA. It noted that the NLRA contains no grant of power to set wages, yet imposes a duty to bargain in good faith — and that this duty functions similarly to the Shipping Act’s prohibition on unreasonable refusals to deal or negotiate. Because the NLRB is permitted to examine the terms of a party’s bargaining proposals when evaluating whether it fulfilled its good-faith bargaining obligation, the court concluded the FMC likewise need not have ratemaking authority to consider a carrier’s rate proposal in assessing whether the carrier unreasonably refused to deal.

The court also drew on the NLRB’s “totality of conduct” standard to address a related concern — that price might become the sole factor in any FMC reasonableness determination. The court noted that under the NLRA, an unreasonably low wage offer alone is rarely sufficient to establish a bargaining violation precisely because the Board considers the totality of an employer’s conduct. It then pointed to the FMC rule’s similar commitment to examining the totality of circumstances in each case, using the NLRB framework to support the conclusion that price would function as one factor among many, not a standalone basis for liability.

Significant Cases Cited

• NLRB v. Blevins Popcorn Co., 659 F.2d 1173 (D.C. Cir.) (1981): Held that in determining whether a party fulfilled its good-faith bargaining obligation under the NLRA, the terms of its bargaining proposals may be examined.

• District Hospital Partners, L.P. v. NLRB, 141 F.4th 1279 (D.C. Cir.) (2025): Affirmed that the NLRB evaluates alleged bargaining violations by examining the totality of the employer’s conduct.

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Held that courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority, overruling Chevron deference.

• Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Auto Insurance Co., 463 U.S. 29 (1983): Established the framework for arbitrary-and-capricious review of agency rulemaking under the APA.

• K-Mart Corp. v. NLRB, 626 F.2d 704 (9th Cir.) (1980): Affirmed that wage proposals characterized as meager — particularly during periods of high inflation — can support an inference that an employer was not bargaining seriously.

American President Lines, LLC, 21-RC-337981 (Regional Election Decision)

The International Longshore and Warehouse Union petitioned for an election in a unit of eight employees at American President Lines’ Long Beach, California facility — four job classifications collectively called “the Supervisors” — who directly oversaw a pre-existing bargaining unit of clerical workers represented by Local 63. The employer moved to dismiss, arguing all eight were statutory supervisors under Section 2(11) of the NLRA.

Acting Regional Director David Selder dismissed the petition, finding the employer met its burden on three of the four asserted supervisory functions — responsible direction, grievance adjustment, and effective recommendation of hiring — though not on the fourth, assignment.

On responsible direction, the Regional Director found the Supervisors accountable for their teams’ performance. Their performance evaluations incorporated metrics tied directly to the clerks’ output, including storage-fee management and collections productivity, and they faced merit-pay consequences based on team results. The Regional Director applied Oakwood Healthcare, Inc. and found that the Supervisors exercised independent judgment in guiding their teams, not merely performing routine oversight.

On grievance adjustment, the key evidence was the Supervisors’ role in adjudicating “time-in-lieu” (TIL) grievances — contractual claims alleging that non-unit employees performed bargaining-unit work. The Supervisors independently researched and validated or denied each TIL, interpreting ambiguous job descriptions and weighing facts, before upper management’s limited and largely non-independent review. The Regional Director found this constituted meaningful grievance adjustment under Section 2(11).

On effective recommendation of hiring, the Regional Director credited the 2024 hiring process in which the Supervisors constituted the sole interview panel for ten new clerk positions. Although the union argued the process was a formality because the candidates came from a pre-approved class A list, the Regional Director found the memorandum of understanding did not guarantee automatic hiring from that list, and upper management relied on the Supervisors’ evaluations without independent investigation.

On assignment, the Regional Director found the employer did not meet its burden, concluding the Supervisors’ day-to-day task direction involved discrete assignments rather than the designation of employees to locations, shifts, or significant overall duties required under Oakwood Healthcare, Inc.

The Regional Director separately rejected the employer’s confidential-employee claim as to two of the Supervisors, finding insufficient evidence of regular access to advance bargaining strategy information, and rejected the managerial-employee claim as to two others, finding no evidence they formulated, as opposed to implemented, employer policy.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the three-part test for supervisory status under Section 2(11) and defined the terms “assign” and “responsibly direct,” including the accountability requirement for the latter.

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Supreme Court decision holding that the party asserting supervisory status bears the burden of proof.

• NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): Supreme Court decision defining managerial employees as those who formulate and make operative the decisions of their employer.

• NLRB v. Yeshiva University, 444 U.S. 672 (1980): Supreme Court decision clarifying that managerial exclusion requires that an employee represent management interests by taking or recommending discretionary actions that effectively control or implement employer policy.

• NLRB v. Hendricks County Rural Electric Membership Corporation, 454 U.S. 170 (1981): Supreme Court decision affirming the Board’s “labor nexus” test for determining confidential-employee status.

Starbucks Corporation, JD-18-26, 13-CA-322871 (ALJ Decision)

ALJ Keltner W. Locke dismissed all allegations against Starbucks arising from its enforcement of a dress code at a unionized Chicago store.

The ALJ dismissed two allegations that supervisors made unlawful statements after employee Russell Dahlman invoked his Weingarten rights. Store Manager Campbell’s comment that he “wouldn’t want anyone knowing his business” was protected employer speech under Gissel Packing — no threat or promise of benefit was communicated. District Manager Davis’s statement that management would “let [Dahlman] know” when he needed representation was found, in context, to mean only that the employer would flag investigatory interviews — not that it was controlling when Dahlman could invoke his rights.

The dress code — which bars logos other than a small manufacturer’s mark but permits one union pin or button — was found facially lawful. Under Tesla, Inc., any restriction on union insignia triggers the “special circumstances” requirement. The ALJ found those circumstances satisfied: Starbucks is a customer-facing retailer where employee appearance is integral to the brand experience, and the Second Circuit had previously upheld this same dress code. The ALJ applied Tesla notwithstanding the Fifth Circuit’s vacatur, as the relevant store is in the Seventh Circuit.

The disparate enforcement allegation failed on credibility grounds. Dahlman testified he regularly wore a White Sox cap to work without discipline, but the ALJ found that testimony outweighed by the failure of union-supporting coworker Nathan Wilson — who had both motive and opportunity to corroborate — to mention it.

The Section 8(a)(3) claims arising from employees being sent home on April 18, 2023, for wearing union T-shirts were dismissed. Because the employer undisputedly acted based on protected activity, Wright Line was inapplicable under Gross Electric, Inc. The discipline was lawful because the dress code itself was lawful. In the alternative, the ALJ found the April 18 action constituted an unprotected partial strike, as compliance with the dress code was a required job duty given Starbucks’s retail environment.

Significant Cases Cited

• Tesla, Inc., 371 NLRB No. 131 (2022): Any employer restriction on union insignia — even partial — triggers the “special circumstances” requirement; permitting alternative union expression is irrelevant to that threshold.

• Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established the Board’s role in balancing employees’ Section 7 rights against employers’ rights to maintain workplace rules.

• Wright Line, 251 NLRB 1083 (1980): Burden-shifting framework for Section 8(a)(3) mixed-motive discrimination claims.

• NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Recognized represented employees’ right to union representation during investigatory interviews that could lead to discipline.

• Ohio Bell Telephone Co., 370 NLRB No. 29 (2020): Addressed the line between protected concerted activity and unprotected partial or intermittent strikes where employees report to work out of compliance with a uniform policy.

HBC Management Services, Inc., 05-RC-382491 (Regional Election Decision)

A Regional Director in NLRB Region 5 dismissed a representation petition filed by Governed United Security Professionals seeking to represent security officers employed by HBC Management Services, Inc. at a Social Security Administration facility in Urbana, Maryland, where Union Rights for Security Officers already held bargaining rights.

The dismissal turned on the Board’s successor-bar doctrine. When HBC took over as a successor employer in July 2025, it did not expressly adopt the existing terms and conditions of employment — instead implementing some changes of its own. The incumbent union and the new employer began bargaining on September 5, 2025. The petition was filed approximately six months later, on March 9, 2026.

Under UGL-UNICCO Service Co., a successor employer who expressly adopts existing terms and conditions triggers a fixed six-month bar period from the first bargaining session. Where, as here, the successor establishes its own initial terms, the bar period instead ranges from six months to one year, with the precise duration determined by weighing five factors: (1) whether the parties are bargaining for an initial agreement; (2) the complexity of the issues and bargaining procedures; (3) the total time elapsed and number of sessions; (4) progress toward agreement; and (5) the presence or absence of impasse.

The Regional Director issued a Notice to Show Cause on March 16, 2026, inviting any party to argue why the petition should not be dismissed. No party responded by the March 20 deadline. The Regional Director accordingly dismissed the petition and withdrew the previously issued Notice of Representation Hearing, finding the filing barred under the successor-bar framework established in St. Elizabeth Manor, Inc. and elaborated in UGL-UNICCO.

Significant Cases Cited

• St. Elizabeth Manor, Inc., 329 NLRB 341 (1999): Established that after a successor employer recognizes an incumbent union, any representation petition is barred for a “reasonable period of time.”

• UGL-UNICCO Service Co., 357 NLRB 801 (2011): Defined the successor-bar period as a fixed six months when a successor expressly adopts existing terms and conditions, and a flexible six-month-to-one-year range when it does not, with five enumerated factors guiding the determination.

True Concord Voices and Orchestra, Inc., 28-RC-344449 (Regional Election Decision)

Regional Director Cornele A. Overstreet issued a Decision and Direction of Election ordering a mail ballot election among orchestra musicians employed by True Concord Voices and Orchestra, Inc., a Tucson, Arizona-based nonprofit choral and orchestral organization. The Tucson Federation of Musicians, AFM, Local 33 seeks to represent the unit.

Jurisdiction

The principal dispute concerned whether the Board’s discretionary jurisdictional standard for symphony orchestras under Rule 103.2 — requiring gross annual revenue of at least $1 million, excluding contributions “not available for use for operating expenses” — was satisfied. The Employer argued that revenue restricted by grantors to specific projects, such as recording albums, fell outside the rule’s threshold because such funds were not available for general “operating expenses.” The Regional Director rejected that argument. Drawing on the Board’s 1973 rulemaking commentary and Magic Mountain, Inc., the Regional Director reasoned that the Rule 103.2 exclusion was intended for non-recurring capital expenditures — such as contributions to endowments or building funds — not for funds tied to activities at the core of an employer’s recurring operations. Because recording is central to True Concord’s mission and is carried out regularly, contributions restricted to recording projects were deemed available for “operating expenses” under the rule. Applying that interpretation, gross revenues for fiscal year 2023–2024 exceeded $1 million even after excluding endowment contributions. Statutory jurisdiction was separately established based on the Employer’s receipt of a $25,000 NEA grant in June 2024, which constituted a direct interstate transfer of federal funds.

The Regional Director also noted that the Employer had failed to substantially comply with the Board’s subpoena duces tecum, which complicated the jurisdictional analysis but was ultimately not outcome-determinative.

Appropriate Unit

Applying the three-part framework from American Steel Construction, Inc., the Regional Director found the petitioned-for unit of full-time and regular part-time orchestra musicians to be homogeneous, identifiable, and sufficiently distinct. The orchestra musicians share common skills, training, and job function, and are used in only 10–15% of the Employer’s productions, giving them distinct terms and conditions of employment compared to the choral musicians. The choir and orchestra constitute separate departments with different skill sets, and the choir’s presence in all productions while the orchestra appears in only a fraction further underscores the rational basis for the unit line.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the three-part test — homogeneous, identifiable, and sufficiently distinct — for determining whether a petitioned-for unit is appropriate for collective bargaining.

• Magic Mountain, Inc., 123 NLRB 1170 (1959): Distinguished between an employer’s recurring operations and non-recurring capital expenditures for purposes of the Board’s jurisdictional analysis, providing the interpretive foundation for the Rule 103.2 exclusion.

• Aspirus Keweenaw, 370 NLRB No. 45 (2020): Articulated the Board’s preference for manual elections while recognizing circumstances — including employee schedules that are “scattered” in time — that may justify mail ballot elections.

• Juilliard School, 208 NLRB 153 (1974): Established the voter eligibility standard for intermittently employed performing artists, requiring participation in two productions over one year or 15 days of employment over two years.

• Overnite Transportation Co., 322 NLRB 723 (1996): Confirmed that a petitioner need only seek an appropriate unit, not the most appropriate unit, in a representation proceeding.

Netflix Inc., 32-CA-315576 (Advice Memo)

A Netflix employee was discharged in 2022 after posting a password-protected link to an internal all-hands meeting recording on Blind, a social media platform where employees can discuss their companies anonymously. The meeting had covered sensitive business information. The employee posted the link in response to a comment thread, identifying themselves as the person who had asked a question during the meeting about demotions, attrition, and pay. Netflix’s IT security team flagged the post, the link was disabled, the employee apologized and removed it, and the employee was nonetheless terminated the following day.

The NLRB’s Division of Advice concluded that the discharge was lawful on two independent grounds. First, Advice applied a balancing test — asking whether the employee’s interest in sharing the information outweighed Netflix’s interest in keeping it confidential. Under this framework, established in Beckley Appalachian Regional Hospital, when an employee is disciplined for conduct that is intertwined with otherwise protected activity and a confidentiality policy is in place, neither the employee’s nor the employer’s interest automatically wins; the Board weighs them against each other. Even though the underlying Blind post — raising concerns about working conditions — was Section 7-protected activity, the inclusion of the link stripped the post of NLRA protection. Advice reasoned that the employee had adequate alternative means to engage coworkers on those concerns without sharing the link, that the employee’s own apology made it difficult to argue the violation was unintentional, and that Netflix’s confidentiality interests were substantial given the sensitive business content of the meeting. The fact that Netflix had previously shared similar links with third parties did not materially undercut this analysis, because those instances primarily involved employee benefits information rather than core business strategy.

Second, Advice concluded the discharge was independently lawful under Continental Group, Inc., because the policy under which the employee was terminated — Netflix’s Confidential Information and Communications Guidelines — was itself facially lawful. Applying Stericycle, Inc., Advice evaluated the policy from the perspective of a reasonable employee. Although the Protecting Confidential Information section contains broad language covering anything an employee “learns” or “obtains” while at Netflix, Advice found that the specific examples enumerated — financial data, content strategies, subscriber counts, business plans — would lead a reasonable employee to understand “confidential information” as limited to legitimate business secrets, not terms and conditions of employment. Accordingly, the prohibition on discussing such information on social media would not reasonably tend to chill Section 7 activity.

Advice similarly found the policy’s media-contact provisions lawful. The broad prohibition on initiating contact with press or answering media questions was, in context, reasonably read as restricting employees from speaking as Netflix’s representative on business matters — not from discussing labor disputes or working conditions with the media. Citing LA Specialty Produce Co., Advice noted that employees have no Section 7 right to serve as a company spokesperson on business matters. The Region was instructed to dismiss all allegations absent withdrawal.

Significant Cases Cited

• Continental Group, Inc., 357 NLRB 409 (2011): Establishes the standard under which an employee’s discharge pursuant to a facially lawful confidentiality policy is assessed for NLRA compliance.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Sets the current Board standard for evaluating work rules, asking whether a rule would reasonably tend to chill employees in the exercise of Section 7 rights from the perspective of a reasonable employee.

• Beckley Appalachian Regional Hospital, 318 NLRB 907 (1995): Articulates the balancing test for determining the lawfulness of discipline imposed for conduct intertwined with Section 7-protected activity where a confidentiality rule is in place.

• LA Specialty Produce Co., 368 NLRB No. 93 (2019): Holds that employees have no Section 7 right to act as a spokesperson for their employer on business matters.

Center for Economic and Policy Research, 05-CA-352812 (Advice Memo)

The NLRB’s Division of Advice recommended dismissal of an unfair labor practice charge alleging that a workplace-harassment provision in a collective-bargaining agreement between the Center for Economic and Policy Research and the International Federation of Professional and Technical Engineers (Local 70) violated the NLRA.

The charge was evaluated under the framework established by Stericycle Inc. for assessing potentially unlawful workplace rules. However, the Division noted that the Board has not clearly applied Stericycle — or its predecessor handbook-rule standards — to collectively bargained provisions. Instead, the governing framework for CBA provisions is derived from NLRB v. Magnavox Co., under which a union may not waive employees’ individual, nonwaivable Section 7 rights, particularly those implicating employees’ right to oppose or support their bargaining representative. The Division distinguished between waivable rights (such as the right to strike, which is primarily economic) and nonwaivable rights (such as the right to express views about unionization).

Applying Magnavox, the Division concluded that employees would not reasonably construe the harassment provision as restricting Section 7 activity. The provision’s examples of prohibited conduct are directed at workplace misconduct unconnected to protected concerted activity or union-related expression. The Division distinguished cases where the Board had invalidated overbroad CBA provisions, such as Universal Fuels (restricting communications about contractual pay and benefits) and Teachers AFT New Mexico (restricting participation in the employer’s “internal politics”), finding those provisions actually chilled employees’ right to voice views about their union representation — something not present here. The Division also noted DTM Corp. as instructive, even though it was issued by an improperly constituted panel under NLRB v. Noel Canning, citing DHL Express, Inc. v. NLRB for the proposition that voided Board decisions may still be persuasive authority.

Significant Cases Cited

• NLRB v. Magnavox Co., 415 U.S. 322 (1974): The Supreme Court held that a union cannot waive employees’ individual Section 7 right to distribute union-related literature on employer property, as that right is nonwaivable because it implicates employees’ freedom to choose or oppose their bargaining representative.

• Stericycle Inc., 372 NLRB No. 113 (2023): The Board established a revised standard for evaluating potentially overbroad employer workplace rules, assessing whether employees would reasonably interpret a rule to chill Section 7 activity.

• Universal Fuels, 298 NLRB 254 (1990): The Board applied Magnavox to invalidate a CBA provision restricting employee communications about contractual pay and benefits, finding it destructive of employees’ nonwaivable right to oppose or support their union.

• Teachers AFT New Mexico, 360 NLRB 438 (2014): The Board found a CBA provision prohibiting employee participation in the employer’s “internal politics” unlawfully interfered with employees’ Section 7 rights related to union representation and collective bargaining.

• DTM Corp., 358 NLRB 974 (2012): The Board (though later invalidated as improperly constituted) found a CBA provision lawful because, under the most reasonable construction, it restricted only strike-related Section 7 activity — a waivable right.

St. John's College, 374 NLRB No. 72, 28-RM-337949 (Published Board Decision)

The Board reversed a Regional Director’s dismissal of an employer-filed representation petition (RM petition), clarifying that the timeliness framework established in Cemex Construction Materials Pacific, LLC applies only to unfair labor practice proceedings — not to representation proceedings.

The dispute arose after the Communications Workers of America presented a recognition demand to St. John’s College in December 2023. The College filed an RM petition in March 2024, more than two weeks after that demand. The Regional Director dismissed the petition as untimely under Cemex, which requires employers to file RM petitions “promptly” — normally within two weeks of a union’s recognition demand — to shield themselves from potential Section 8(a)(5) liability.

The Board found this was an error. Under Cemex, an employer that fails to file promptly may lose a potential defense to an unfair labor practice charge, but the Cemex timeliness rule does not independently authorize dismissal of an otherwise procedurally compliant RM petition. The Board drew a sharp line between representation proceedings, which are governed by Section 102.61(b) of the Board’s Rules and Regulations, and ULP proceedings, where Cemex defenses are properly litigated. It also invoked the long-standing principle from Times Square Stores Corp. that unfair labor practice issues cannot be litigated in representation proceedings. Whether an employer filed “promptly” or whether “unforeseen circumstances” excuse a later filing are, accordingly, questions reserved for ULP cases.

The Board remanded the petition to the Regional Director for processing under standard representation case procedures.

Significant Cases Cited

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established a framework under which an employer violates Section 8(a)(5) by refusing to recognize a union with majority support, but may avoid liability by promptly filing an RM petition — normally within two weeks of a recognition demand.

• Times Square Stores Corp., 79 NLRB 361 (1948): Established the principle that unfair labor practice issues may not be litigated in representation proceedings.

St. Anthony Community Hospital, 374 NLRB No. 77, 02-CA-278511 (Published Board Decision)

St. Anthony Community Hospital, a New York acute care facility, discharged radiology technician Andrea Roe in May 2021 — shortly after she led a successful union organizing campaign and attended the virtual ballot count — citing a HIPAA violation. The General Counsel alleged the discharge was pretextual and motivated by union animus. ALJ Benjamin Green agreed, finding the HIPAA rationale a pretext and ordering reinstatement and full make-whole relief. The Board majority (Members Murphy and Mayer, with Member Prouty dissenting in part) affirmed the ALJ’s finding of an unlawful Section 8(a)(1) interrogation but reversed the Section 8(a)(3) discriminatory discharge finding.

Where the Board and ALJ diverged

The central split concerned whether the hospital met its burden under Wright Line of proving it would have discharged Roe absent her union activity. The ALJ concluded it had not, citing the hospital’s failure to contact the ordering physician or other medical staff who might have explained Roe’s April 15 chart access, the exclusion of Roe’s supervisor Robert Yates (who had corroborated her explanations) from the May 7 decision-making call, inconsistent external statements about the nature of the HIPAA breach, and the hospital’s post-discharge assurances to other technicians that accessing patients’ charts without performing imaging was acceptable. The ALJ found these facts collectively demonstrated pretext and discriminatory motive.

The Board majority disagreed on the Wright Line rebuttal, finding the hospital had a legitimate and reasonable basis for its discharge decision. It credited the triggering report from Christine Faline — an employee of the hospital’s parent company who had no knowledge of the union campaign — as a good-faith, partially corroborated basis for investigation. The audit confirmed Roe had accessed the patient’s ICU records with no imaging performed that day, and Roe herself could not recall why she had done so or provide any doctor’s name to corroborate her explanation. The majority held that an employer need not prove the misconduct actually occurred — only that it held a reasonable belief the employee committed it. It further found the hospital’s prior HIPAA discipline record, including a 2019 discharge for combined unauthorized access and disclosure, supported the conclusion that Roe would have been discharged regardless of her union activity.

On the Section 8(a)(1) interrogation, the Board affirmed the ALJ’s finding that supervisor Yates unlawfully interrogated employee Jeanne Saeli by asking her to identify the “ringleader” of the organizing campaign, applying the totality-of-circumstances standard from Rossmore House.

Member Prouty dissented from the discharge reversal, agreeing with the ALJ that the hospital’s investigation was so incomplete — particularly its failure to contact the ordering physician despite telling Roe it would — that the Wright Line defense could not be sustained in the face of demonstrated antiunion animus.

Remedy: The Board adopted the ALJ’s recommended Order as modified, deleting the reinstatement, backpay, and related make-whole remedies applicable to the discharge, and retaining only the notice-posting remedy for the Section 8(a)(1) interrogation violation.

Significant Cases Cited

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

• Rossmore House, 269 NLRB 1176 (1984): Sets the totality-of-circumstances test for determining whether employer questioning of employees constitutes unlawful interrogation under Section 8(a)(1).

• DTR Industries, 350 NLRB 1132 (2007): Holds that an employer need not prove an employee actually committed misconduct to satisfy its Wright Line burden — only that it had a reasonable belief the employee did so and acted on that belief.

• Intertape Polymer Corp., 372 NLRB No. 133 (2023): Summarizes the elements of the General Counsel’s prima facie case under Wright Line and the types of circumstantial evidence that may establish discriminatory motive, including timing, shifting reasons, and investigative failures.

• Wendt Corp., 369 NLRB No. 135 (2020): Clarifies that to meet the Wright Line rebuttal burden, an employer must prove it would have disciplined the employee absent protected activity, not merely that it could have identified legitimate grounds for discipline.

Forepeak Steel, LLC, 374 NLRB No. 80, 04-CA-340084 (Published Board Decision)

The Board affirmed, with modifications, an ALJ’s decision finding that Forepeak Steel, a New Jersey structural steel contractor, violated Section 8(a)(5) and (1) of the NLRA by laying off its five ironworker unit employees in April 2024 without notice to or bargaining with the recently certified Iron Workers union, and by closing the business in July 2025 without affording the union an opportunity to bargain over the effects of that closure.

The Board addressed three issues on exception from the General Counsel. First, the Board granted the General Counsel’s exception correcting a technical error: the ALJ had inadvertently dismissed a decision-bargaining allegation regarding the closure that was never actually alleged in the complaint. Because the complaint alleged only an effects-bargaining violation with respect to the closure — not a decision-bargaining violation — the ALJ’s dismissal of the unalleged decision-bargaining count was corrected accordingly.

Second, and more consequentially for the remedy, the Board modified the ALJ’s order to include full make-whole relief for the five laid-off employees covering the period from their April 2024 layoff through the July 2025 closure of the business. The ALJ had applied only the limited Transmarine Navigation Corp. effects-bargaining remedy. The Board agreed that Transmarine governs the period after the business closed, but held that standard make-whole relief — not the more limited Transmarine formula — applies for the period between the unlawful layoff and the closure, because that violation concerned the failure to bargain over the layoff decision itself. The remedy also incorporates Thryv, Inc. make-whole relief for direct and foreseeable pecuniary harms beyond lost wages, including search-for-work expenses, though Members Murphy and Mayer noted their openness to reconsidering Thryv in a future case.

Third, the Board declined to reach the General Counsel’s exception regarding the onset of the employer’s financial difficulties, finding it would not affect the outcome given the absence of exceptions to the underlying violation findings.

The ALJ’s underlying legal analysis — that layoff decisions are mandatory subjects of bargaining under NLRB v. Katz, that the employer’s pre-union past practice of discretionary layoffs provided no defense under Wendt Corp., and that purely economic business closure decisions need not be bargained over under First National Maintenance Corp. while effects bargaining remains mandatory — was adopted without modification.

Significant Cases Cited

• Transmarine Navigation Corp., 170 NLRB 389 (1968): Establishes the limited make-whole remedy for effects-bargaining violations, under which backpay runs from a fixed point until the parties bargain to agreement, impasse, or union default.

• First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Holds that an employer’s decision to close a business entirely for economic reasons is not a mandatory subject of bargaining, though bargaining over the effects of that decision remains required.

• NLRB v. Katz, 369 U.S. 736 (1962): Establishes that an employer violates the NLRA by making unilateral changes to employees’ terms and conditions of employment without providing the union notice and an opportunity to bargain.

• Wendt Corp., 372 NLRB No. 135 (2023): Reaffirms that an employer cannot defend a unilateral change by invoking a pre-union past practice developed before the union was certified and before the duty to bargain arose.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expands the Board’s make-whole remedy to include compensation for direct and foreseeable pecuniary harms beyond lost wages, such as search-for-work and interim employment expenses.

BJ's Wholesale Club, Inc., 374 NLRB No. 79, 29-CA-317035 (Published Board Decision)

BJ’s Wholesale Club defeated a union organizing drive among meat and deli employees at its Brooklyn location by a 14–7 vote in April 2023. The union filed post-election objections and the General Counsel issued a complaint alleging pre-election misconduct. ALJ Michael Silverstein issued his decision in August 2024; the Board adopted it with modifications in March 2026.

The ALJ dismissed allegations that BJ’s violated Section 8(a)(1) by holding captive-audience meetings and by sending a letter warning that unionization would erode its open-door policy, applying Babcock & Wilcox Co. and Tri-Cast, Inc. respectively. The Board affirmed both dismissals but noted that the Board had since overruled both precedents in Amazon.com Services LLC and Siren Retail Corp. d/b/a Starbucks — holding captive-audience meetings unlawful and requiring open-door-policy statements to be grounded in objective fact — though each new rule was applied prospectively only, leaving the dismissals intact.

The ALJ found that club manager Andre Batts had unlawfully interrogated two employees about their union sympathies during closed-door individual meetings, violating Section 8(a)(1) under the totality-of-circumstances test from Rossmore House. However, the ALJ declined to set aside the election, finding the interrogations de minimis because neither employee disseminated the conversations to other voters and the margin of defeat was seven votes. A separate election-day threat by a fresh manager was similarly found credible but too isolated to affect the election. The Board affirmed all of these findings.

The Board also rejected BJ’s argument — raised for the first time on exceptions — that the Board should replace its objective interrogation standard with the subjective test from Counterman v. Colorado, a criminal-law decision, finding the argument both untimely and substantively inapplicable under Apple, Inc. The Board issued a Certification of Results and required bilingual notice posting given the Spanish-speaking workforce.

Significant Cases Cited

• Rossmore House, 269 NLRB 1176 (1984): Established the totality-of-circumstances test for evaluating whether employer interrogation of employees about union sympathies violates the NLRA.

• Babcock & Wilcox Co., 77 NLRB 577 (1948): Held that employers may compel employees to attend anti-union speeches during working hours; overruled prospectively by Amazon.com Services LLC (2024).

• Tri-Cast, Inc., 274 NLRB 377 (1985): Held that employer statements predicting a change in the direct employee-management relationship upon unionization do not violate the NLRA; overruled prospectively by Siren Retail Corp. d/b/a Starbucks (2024).

• Amazon.com Services LLC, 373 NLRB No. 136 (2024): Overruled Babcock & Wilcox to hold that compelling attendance at captive-audience meetings under threat of discipline interferes with Section 7 rights, with prospective effect only.

• Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024): Overruled Tri-Cast to require that employer statements about unionization’s effect on the employee-management relationship be grounded in objective fact, with prospective effect only.

Paragon Systems Inc., 374 NLRB No. 73, 21-RD-343514 (Published Board Decision)

The Board declined to reconsider a 1984 precedent that bars mixed guard-nonguard unions from intervening in representation elections involving security guard units, affirming a Regional Director’s denial of a motion to intervene filed by United Trades & Transportation Workers Union Local 323.

Background

Local 323 — an admitted mixed guard-nonguard union — sought to intervene in a decertification proceeding involving a unit of guards employed by Paragon Systems. The Acting Regional Director denied the motion under University of Chicago, which held that Section 9(b)(3) of the NLRA bars mixed guard-nonguard unions not only from certification but from participating in Board election processes altogether. The Board granted review to consider whether to overrule that precedent but ultimately declined to do so, leaving the denial intact.

The Majority. Members Murphy and Mayer issued a brief decision declining to reconsider University of Chicago without elaborating on their reasoning. The stay previously entered was lifted.

The Dissent

Member Prouty wrote at length in dissent, arguing that University of Chicago should be overruled and that the Board should return to the pre-1984 framework established in William Burns Detective Agency and Bally’s Park Place.

Prouty’s central argument was textual: Section 9(b)(3) expressly prohibits only Board certification of a mixed guard-nonguard union, not participation in Board election processes. The University of Chicago majority itself acknowledged this, characterizing the question as one of statutory construction — whether to read the provision broadly or narrowly — rather than one of statutory command. Prouty argued the Board should construe Section 9(b)(3) narrowly, consistent with its plain language, rather than extending the prohibition beyond what Congress wrote.

Prouty also grounded his dissent in NLRA policy. Section 7 guarantees employees — including guards — the right to bargain through “representatives of their own choosing.” By prohibiting noncertifiable unions from appearing on the ballot, University of Chicago forecloses employees from expressing a preference for a union that may in fact be their preferred representative. Prouty characterized this as an unjustified infringement on employee free choice, made worse because the limitation lacks a statutory basis. He noted the harm applies equally whether the precluded union is an incumbent or a nonincumbent, making even the partial exception briefly recognized in Wackenhut Corp. — which permitted only incumbent mixed unions to intervene — insufficient.

Prouty further argued that the legislative history of Section 9(b)(3) does not support the University of Chicago outcome, citing the dissent in that case and subsequent Board decisions that questioned its rationale. He contended that certifying only the “arithmetical results” of an election in which a noncertifiable union prevails — the procedure used under Burns and Bally’s — is entirely consistent with the statutory scheme and promotes stable labor relations by honoring employee free choice without granting a certification the statute prohibits.

The Board’s decision leaves University of Chicago intact, and Local 323’s motion to intervene was denied. The case is remanded to the Regional Director for further proceedings.

Significant Cases Cited

• University of Chicago, 272 NLRB 873 (1984): Held that Section 9(b)(3) bars mixed guard-nonguard unions not only from certification but from intervening or participating in Board representation elections involving guard units.

• William Burns Detective Agency, 138 NLRB 449 (1962): Held that nothing in Section 9(b)(3) prohibits mixed guard-nonguard unions from participating in guard-unit elections and that the Board may certify arithmetical results when such a union wins.

• Bally’s Park Place, Inc., 257 NLRB 777 (1981): Reaffirmed the Burns framework and overruled Wackenhut, permitting nonincumbent mixed guard-nonguard unions to intervene in guard-unit elections.

• Wackenhut Corp., 223 NLRB 83 (1976): Permitted only incumbent mixed guard-nonguard unions to appear on the ballot as intervenors, a position later overruled by Bally’s.

• Loomis Armored US, Inc., 364 NLRB 144 (2016): Examined the legislative history of Section 9(b)(3) and questioned whether that history supports the broad preclusion rule adopted in University of Chicago.

ArrMaz Products, Inc., 374 NLRB No. 70, 12-CA-294086 (Published Board Decision)

The Board issued a brief supplemental decision resolving a lingering remedial question in a test-of-certification refusal-to-bargain case. The underlying violation — the employer’s failure to bargain with the Union in violation of Section 8(a)(5) and (1) of the NLRA — had already been established in a 2022 decision and enforced by the Eleventh Circuit in 2024.

The only remaining issue was whether the Board should overrule Ex-Cell-O Corp. and impose a make-whole remedy compensating employees for economic losses caused by the employer’s unlawful refusal to bargain. The Board declined to do so, citing its February 2026 decision in Longmont United Hospital, in which the Board majority had already rejected departing from established remedial practice in test-of-certification cases. The General Counsel’s pending motion to withdraw the overruling request was denied as moot.

Member Prouty dissented on the remedial question, reiterating his position from Longmont United Hospital that Ex-Cell-O Corp. should be overruled and that employers should be required to make employees whole for provable, quantifiable economic harm flowing from unlawful bargaining refusals, as contemplated by Section 10(c) of the NLRA.

Significant Cases Cited

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Established the Board’s longstanding rule declining to impose make-whole economic remedies on employers who unlawfully refuse to bargain in test-of-certification cases.

• Longmont United Hospital, 374 NLRB No. 52 (2026): Reaffirmed Ex-Cell-O Corp. and declined to expand remedies for refusal-to-bargain violations in test-of-certification cases.

• ArrMaz Products Inc., 372 NLRB No. 12 (2022): The underlying Board decision finding the employer violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Union.

Universal Protection Services, LLC D/B/a Allied Universal Security Services, 374 NLRB No. 67, 12-CA-305972 (Published Board Decision)

Same as ArrMaz above.

United Scrap Metal PA, LLC, 374 NLRB No. 69, 04-CA-315904 (Published Board Decision)

Same as ArrMaz above.

VTCU Corp., 374 NLRB No. 64, 27-CA-320744 (Published Board Decision)

Same as ArrMaz above.

Siren Retail Corporation D/B/a Starbucks, 374 NLRB No. 66, 19-CA-299478 (Published Board Decision)

Same as ArrMaz above.

OAKRHEEM, INC. D/B/a HAYWARD CONVALESCENT HOSPITAL, 374 NLRB No. 65, 32-CA-294577 (Published Board Decision)

Same as ArrMaz above.

Nexstar Media, Inc. (Denver Hub), 374 NLRB No. 68, 27-CA-342707 (Published Board Decision)

Same as ArrMaz above.

Rhode Island CVS Pharmacy, L.L.C., 01-RC-342728 (Unpublished Board Decision)

The NLRB denied CVS Pharmacy’s request to review a Regional Director’s decision directing an election for a unit of pharmacists represented by The Pharmacy Guild, affiliated with the International Association of Machinists & Aerospace Workers.

The sole legal issue was whether CVS pharmacists qualify as supervisors under Section 2(11) of the NLRA — specifically, whether they hold the pharmacy technicians “accountable” for their performance in a legally meaningful sense. The Board agreed with the Regional Director that CVS failed to meet this burden. While Rhode Island law makes licensed pharmacists broadly responsible for medication dispensing and requires technicians to work under pharmacist direction, the Board held that state-law accountability does not establish that CVS itself would impose adverse employment consequences on a pharmacist based on a technician’s performance. Without non-conclusory evidence of such employer-imposed consequences — such as discipline, poor performance ratings, or other adverse effects — the accountability prong of the supervisory test is not satisfied.

Significant Cases Cited

• Lynwood Manor, 350 NLRB 489 (2007): Established that accountability under Section 2(11) requires evidence that an employer would impose adverse consequences on an employee for a subordinate’s performance failures, not merely general oversight responsibilities.

• Pain Relief Centers, P.A., 371 NLRB No. 70 (2022): Held that state-law accountability of a nurse for medical actions does not establish that the employer holds that nurse accountable for subordinates’ performance within the meaning of Section 2(11).

Overseas Shipholding Group, Inc., 12-RM-327039 (Unpublished Board Decision)

The National Labor Relations Board denied an employer’s request for review in a representation case involving Overseas Shipholding Group (OSG) and its subsidiary, Alaska Tanker Company (ATC). The International Organization of Masters, Mates & Pilots had demanded recognition for a unit of licensed deck officers (LDOs) working specifically on OSG-branded vessels, excluding those working on ATC-branded vessels. OSG argued the appropriate unit should be employer-wide, encompassing LDOs from both fleets.

The Board affirmed the Regional Director’s conclusion that the petitioned-for unit — limited to OSG-branded vessel LDOs — was a proper fleetwide unit under NLRA unit-determination principles. The key legal issue was whether “fleetwide” necessarily means “employer-wide.” The Board said no. Citing Moore-McCormack Lines, the Board reaffirmed that while seagoing personnel units should generally be fleetwide, an employer can operate more than one fleet. The OSG and ATC operations were found to be distinct fleets based on separate vessel branding, non-overlapping geographic routes, different wages and policies, separate reporting structures, and minimal employee transfers between the two operations.

The Board also clarified that OSG’s reliance on Inter-Ocean Steamship was misplaced because that case involved vessels that were uniformly branded, had uniform wages, and operated within the same geographic area — facts sharply distinguishable from the OSG/ATC situation. The Board further noted that a single-employer finding does not automatically make an employer-wide unit appropriate or required, citing Lawson Mardon U.S.A. and South Prairie Construction.

On a separate issue, the Board upheld the Regional Director’s finding that chief mates are not statutory supervisors. Applying the Oakwood Healthcare framework, the Board found OSG failed to show chief mates exercise independent judgment in assignment, discipline, or direction. Generalized and self-serving testimony about evaluating subordinate skill levels was deemed insufficient without concrete examples, consistent with SR-73 And Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation and Croft Metals.

Significant Cases Cited

• Moore-McCormack Lines, Inc., 139 NLRB 796 (1962): Established that units of seagoing personnel should generally be fleetwide in scope, while recognizing that special circumstances may warrant deviation from that rule.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Set the standard for determining supervisory status under the NLRA, including what constitutes independent judgment in assignment, direction, and discipline.

• South Prairie Construction Co. v. Operating Engineers Local 627, 425 U.S. 800 (1976): Held that a single-employer finding does not compel the conclusion that an employer-wide bargaining unit is appropriate.

• Lawson Mardon U.S.A., Inc., 332 NLRB 1282 (2000): Reaffirmed that a single-employer determination does not require or even necessarily make appropriate a unit encompassing all employees of the combined entity.

• SR-73 And Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation, 365 NLRB 1188 (2017): Held that general testimony about a putative supervisor considering employee skill in making assignments is insufficient to establish independent judgment without specific examples.

Phoenix Energy Management / PEM Manufacturing, 29-RD-351215 (Regional Election Decision)

Region 29 Regional Director Teresa Poor dismissed two petitions seeking a decertification election at Phoenix Energy Management, Inc. and PEM Incorporated on March 18, 2026, finding that pending unfair labor practice charges require deferral of any election.

The employer had filed an RM petition and an individual named Garrett Hansen had filed an RD petition, both seeking an election among production and maintenance employees to determine whether they wished to continue union representation by Regional Shop Local Union No. 852, Ironworkers. Before those petitions could be processed, the Region issued a consolidated complaint alleging a wide range of NLRA violations, including that the employer created an alter ego entity to divert bargaining unit work, threatened employees with layoffs, promised better wages in exchange for withdrawing union support, refused to apply the expired collective bargaining agreement to new hires, denied the union access to its Brooklyn facility, and — critically — that the employer or its agent actively assisted employees in circulating the very decertification petition at issue.

The Regional Director applied the “merit-determination dismissal” framework, which permits dismissal of a representation petition when the General Counsel has found merit in ULP charges alleging conduct that would both interfere with employee free choice and is inherently inconsistent with the petition itself. Because the complaint seeks an affirmative bargaining order — which would preclude a question concerning representation — further processing of the petitions is not currently warranted. Additionally, because the RD petitioner was alleged to have acted as an agent of the employer in soliciting signatures, the showing of interest supporting the petition was itself tainted. The Regional Director noted that in cases involving an 8(a)(5) refusal to bargain with an incumbent union, a causal nexus between the unlawful conduct and any subsequent loss of majority support may be presumed, obviating the need for a separate nexus analysis.

The dismissals are without prejudice; the petitioners may seek reinstatement only if the ULP allegations are ultimately found to be without merit.

Significant Cases Cited

• Rieth-Riley Construction Co., 371 NLRB No. 109 (2022): Defined “merit-determination dismissals” and articulated the standard for dismissing representation petitions when the General Counsel finds merit in ULP charges that would irrevocably taint the petition or related election.

• Overnite Transportation Co., 333 NLRB 1392 (2001): Established that the Board will dismiss a representation petition, subject to reinstatement, where a concurrent ULP complaint alleges conduct that would interfere with employee free choice and is inherently inconsistent with the petition itself.

• Wire Products Mfg. Co., 326 NLRB 625 (1998): Held that an employer violates Section 8(a)(1) of the NLRA by actively soliciting, encouraging, or assisting employees in initiating, signing, or filing a decertification petition.

• Lee Lumber & Building Materials Corp., 322 NLRB 175 (1996): Established that in cases involving an 8(a)(5) refusal to recognize and bargain with an incumbent union, a causal relationship between the unlawful conduct and a subsequent loss of majority support may be presumed.

• Eastern States Optical Co., 275 NLRB 371 (1985): Articulated the standard for evaluating whether employer assistance with a decertification petition was unlawful by asking whether the preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees.

Meow Wolf, Inc., 28-RM-341292 (Regional Election Decision)

Meow Wolf, Inc., an immersive arts and entertainment company based in Santa Fe, New Mexico, filed an RM petition challenging the appropriateness of a bargaining unit sought by the Communications Workers of America. The union had demanded voluntary recognition for a unit of Creative Directors (CDs) and Art Directors (ADs) in all classifications. The employer argued these employees were managerial and therefore excluded from NLRA coverage, and separately argued that the sole Senior Art Director (SAD) did not share a community of interest with the proposed unit.

Managerial Status

Regional Director Cornele Overstreet applied the standard from Republican Co. and NLRB v. Yeshiva University, under which managerial employees are those who formulate and effectuate high-level employer policies or exercise discretion independent of established employer policy. The burden rests on the party asserting managerial status.

The Regional Director found the employer failed to meet that burden for either the CD or AD classifications. The record showed that CDs at all levels — including Principal CDs and Senior CDs — operate within parameters set by the employer’s executive leadership, Creative Council, and Controls Gate, and that their work is subject to approval at each stage. Citing Holly Sugar Corp., the decision noted that making some decisions “within established limits set by higher management” does not confer managerial status. The employer’s argument that CDs align with management interests and effectuate high-level policy was rejected because the record demonstrated that their creative proposals could be rejected by leadership just as readily as those of lower-level employees.

As for the SAD, the employer’s argument rested almost entirely on the fact that the sole SAD, Benjamin Geary, is also a company co-founder and sits on the employer’s Creative Council. The Regional Director found this argument unavailing because the record failed to establish any connection between the SAD job classification and co-founder duties. Geary did not testify, and the SAD job description contained no reference to co-founder responsibilities. The decision noted that Geary reports to a supervisor — as do nine other CDs — while no evidence showed other co-founders have supervisors or report within the same chain of command.

Community of Interest

Applying the American Steel Construction, Inc. framework, the Regional Director found that the CDs and SAD across all classifications share a community of interest. The employees are organized within the same department structure, perform similar creative work, are subject to the same Creative Council and Controls Gate oversight, and several share the same direct supervisor. The employer offered no meaningful evidence to distinguish the SAD from the broader unit.

The Regional Director directed a mixed manual-mail ballot election — manual voting at the Santa Fe facility on April 2, 2026, and mail ballots for two remote employees — citing San Diego Gas & Electric as authority for using mixed-method elections where a portion of the unit is geographically scattered.

Significant Cases Cited

• NLRB v. Yeshiva University, 444 U.S. 672 (1980): Established the Supreme Court’s definition of managerial employees as those who formulate and effectuate management policies and whose alignment with management creates a potential conflict of interest with fellow employees.

• Republican Co., 361 NLRB 93 (2014): Restated the Board’s standard for managerial employee status and confirmed that the party asserting such status bears the burden of proof.

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare community-of-interest standard for determining appropriate bargaining units, overruling the more restrictive PCC Structurals framework.

• Holly Sugar Corp., 193 NLRB 1024 (1971): Held that an employee does not acquire managerial status merely by making decisions or exercising judgment within limits established by higher management.

• San Diego Gas & Electric, 325 NLRB 1143 (1998): Set forth the criteria under which mail or mixed manual-mail ballot elections are appropriate, including where eligible voters are geographically scattered.

Mid-Western Car Carriers, Inc., 14-RC-376290 (Regional Election Decision)

Regional Director Andrea J. Wilkes found that a single-facility unit of approximately 41 drivers at the employer’s Kansas City hub is appropriate under the NLRA, rejecting the employer’s argument that the unit must include all drivers across its nine-hub national network.

Applying the five-factor test from Trane and J & L Plate, the Regional Director found the employer failed to rebut the presumptive appropriateness of the single-facility unit under Hilander Foods. Although Kansas City exercises centralized control over hiring, firing, HR, and training, local dispatchers and operations supervisors retain meaningful day-to-day authority over drivers at each hub, per Esco Corporation. On interchange, the employer’s evidence — driver logs covering only 14 of 78 drivers over roughly four months — lacked the contextualizing data required by New Britain Transportation Co., and driver testimony showed transfers were largely voluntary. On distance, all other hubs are at least 255 miles from Kansas City, strongly favoring the petitioned-for unit. Working conditions in Kansas City also differ meaningfully from other hubs, as drivers there run up to four loads daily, never require sleeper cabs, and have on-site maintenance access. Bargaining history was neutral. A secret-ballot election is scheduled for April 10, 2026.

Significant Cases Cited

• Hilander Foods, 348 NLRB 1200 (2006): Centralized control alone does not rebut the single-facility presumption where significant local autonomy exists.

• New Britain Transportation Co., 330 NLRB 397 (1999): Interchange data lacking contextualizing percentages or totals has insufficient evidentiary value to rebut the single-facility presumption.

• Esco Corporation, 298 NLRB 837 (1990): Limited local oversight by a non-statutory supervisor can still support a single-facility unit finding.

• Trane, 339 NLRB 866 (2003): Articulated the multi-factor test for determining single-facility unit appropriateness.

• Starbucks Corp., 371 NLRB No. 71 (2022): Cross-location interchange covering roughly two percent of shifts was too limited to establish regular interchange among employees at different locations.

American Postal Workers - Union 238 Kansas Kaw Valley Area Local (United States Postal Service), JD-17-26, 14-CB-332603 (ALJ Decision)

ALJ Charles J. Muhl found that APWU Local 238 Kansas Kaw Valley Area Local violated Section 8(b)(1)(A) of the NLRA by refusing to provide a retired postal custodian with information about grievance settlement distributions.

Eva Ayalla, who retired in November 2022 after serving as a union steward, sought information about how the local Union had distributed settlement payments under two “Line H” grievances — contractual claims that the Postal Service had failed to schedule sufficient custodial work hours. After receiving her own payment under the 2021/2022 grievance settlement, Ayalla compared notes with current employees and suspected the distributions were miscalculated. She made repeated requests between June and October 2023 for the total settlement amounts, the number of custodians receiving payments, and each custodian’s individual payment. The Union refused on grounds that the information was private and that disclosure would cause workplace division.

The ALJ first addressed a Section 10(b) timeliness defense, finding that the six-month limitations period began running not when Ayalla received her payment or first raised questions, but when the Union clearly and unequivocally refused to provide the requested information — which occurred on July 6, 2023, inside the limitations window. The ALJ also held, extending doctrine developed under Section 8(a)(5), that each new request and refusal constitutes a separate and distinct violation, meaning later refusals were independently actionable regardless of earlier ones.

On the merits, the ALJ applied the duty of fair representation framework from Union Tank Car Co. and National Nurses Organizing Committee–Texas/National Nurses United, asking whether the Union’s refusal was arbitrary — that is, so far outside a wide range of reasonableness as to be irrational. Noting that Ayalla was a covered grievant for the relevant fiscal years and was also acting on behalf of current employees, the ALJ concluded she retained a sufficient connection to trigger the duty of fair representation even after retirement.

The ALJ found the Union’s privacy and workplace-harmony rationales insufficient to outweigh employees’ interest in verifying fair treatment. Relying on Auto Workers Local 909 (General Motors Corp.–Powertrain), the ALJ held that employees are entitled to an accounting of grievance settlement payments, and that Ayalla’s offer to accept redacted information further undermined the Union’s position. The remedy requires the Union to immediately disclose the requested settlement information to Ayalla.

Significant Cases Cited

• Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation by engaging in arbitrary, discriminatory, or bad faith conduct toward a bargaining unit employee.

• Air Line Pilots Association v. O’Neill, 499 U.S. 65 (1991): Held that the duty of fair representation extends to all union activity in its capacity as bargaining representative, and that a union’s conduct is arbitrary only if it falls outside a wide range of reasonableness.

• National Nurses Organizing Committee–Texas/National Nurses United (Bay Area Healthcare Group), 371 NLRB No. 132 (2022): Articulated the standard for when a union’s duty of fair representation includes an obligation to provide requested information, and the balancing test between employee interest and union countervailing interest.

• Auto Workers Local 909 (General Motors Corp.–Powertrain), 325 NLRB 859 (1998): Held that a union violated Section 8(b)(1)(A) by refusing to provide employee grievants with an accounting of grievance settlement payments.

• Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971): Held that retired workers are not statutory “employees” within the meaning of Section 2(3) of the NLRA, raising the threshold question of whether a union owes a duty of fair representation to retirees.

University of Southern California, 31-RC-356388 (Regional Election Decision)

The NLRB’s Region 31 Regional Director issued a Decision and Direction of Election on March 20, 2026, finding that approximately 2,750 non-tenure track faculty at the University of Southern California (USC) constitute an appropriate bargaining unit under the NLRA and directing a secret ballot election.

Managerial Status

USC argued its shared governance structure — through the Academic Senate, university-wide committees, and school-level faculty councils — rendered the petitioned-for research, teaching, practitioner, clinical, and continuing appointment track faculty (collectively “RTPC Faculty”) managerial employees under NLRB v. Yeshiva University and the Pacific Lutheran University framework. The Regional Director rejected this argument across all five Pacific Lutheran decision-making areas. On academic programs, the curriculum committee (UCOC) applied only ministerial review for technical compliance rather than substantive judgment; on enrollment management, the faculty finance committee (COFE) was consulted on two questions but administered no independent review and simply aligned with administration’s position; on finances, COFE and the benefits advisory committee (EBAC) were overridden when they disagreed with administration; on academic policies, the CAPP committee’s involvement was too vague and limited to establish effective control; and on personnel policies, committee recommendations — including those of the professional responsibility committee (COPR) — were routinely subject to multi-level administrative review and override. The Regional Director applied the Elon University modification to Pacific Lutheran, which eliminated the requirement that a disputed subgroup constitute a majority of a committee, but concluded that the faculty bodies did not exercise effective control in the first instance.

Supervisory Status

USC argued RTPC faculty are statutory supervisors under Section 2(11) of the NLRA because of their roles overseeing teaching assistants, research assistants, and students in clinical settings. The Regional Director disagreed, finding that TA assignments, discipline, and removal were controlled by administrators rather than faculty, and that faculty involvement with students in clinical settings amounted to instruction rather than supervision. Relying on Fordham University, the Regional Director further rejected USC’s theory that collective participation in faculty governance committees confers individual supervisory status.

Community of Interest

The Regional Director found the petitioned-for unit appropriate under the American Steel Construction, Inc. community of interest standard. Factors supporting the unit included RTPC faculty’s shared employment category distinct from tenured faculty, similar skills and training, overlapping job functions centered on teaching and mentoring, common terms and conditions including identical benefit eligibility and a uniform faculty handbook, and frequent contact through university-wide committees. Two factors — common supervision and interchange — did not support the unit, but were outweighed by the others.

USC also raised constitutional challenges to the Board’s structure and election rules, which the Regional Director declined to address substantively, noting the Board recently rejected identical arguments in Portillos Hot Dogs, LLC. A manual election was directed for the week of April 13 or April 20, 2026, at two polling locations.

Significant Cases Cited

• NLRB v. Yeshiva University, 444 U.S. 672 (1980): Supreme Court established the standard for evaluating when university faculty are managerial employees excluded from NLRA coverage.

• Pacific Lutheran University, 361 NLRB 1404 (2014): Board set forth the five-factor framework for assessing faculty managerial status, requiring actual control or effective recommendation in academic programs, enrollment, finances, academic policies, and personnel policies.

• Elon University, 370 NLRB No. 91 (2021): Board modified Pacific Lutheran by eliminating the requirement that a disputed faculty subgroup constitute a majority of a governance committee for the managerial finding to extend to it.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Board defined the independent judgment requirement for supervisory status under Section 2(11), holding that a supervisor must act free of others’ control and form opinions by discerning and comparing data.

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Board reaffirmed the community of interest standard for unit appropriateness, requiring only that a petitioned-for unit be appropriate, not the most appropriate unit.

Midwest Division-Rmc, LLC v. NLRB, 24-1680, (Eighth Circuit)

This caseaddressed two distinct disputes at Research Medical Center in Kansas City, Missouri, arising from separate unfair labor practice charges filed by two unions.

The SEIU Decertification Dispute

The central legal question was whether an employer automatically violates NLRA Sections 8(a)(1) and (5) by withdrawing recognition of a union after employees vote to decertify — but before the Board formally certifies the election results. The Board, relying on W.A. Krueger Co., had held that an employer must continue recognizing the union until certification issues, making any pre-certification withdrawal a per se violation. The ALJ agreed.

The Eighth Circuit reversed. Drawing on the Board’s own subsequent decision in Johnson Controls, Inc., the court found that Krueger had been undermined, if not overruled. In Johnson Controls, the Board itself said that an employer who withdraws recognition after a decertification vote but refrains from unilateral action “makes changes at its peril” — the same “act at your peril” standard applied to employers in the initial certification context under Mike O’Connor Chevrolet. The court found no basis in the NLRA for treating employee choice differently depending on whether a union wins or loses an election.

Aligning with the Fifth Circuit’s analysis in Arkema, Inc. and Dow Chemical Co. v. NLRB, the Eighth Circuit held that Midwest “acted at its peril” by withdrawing recognition before certification — but because the Board ultimately certified the decertification results and overruled SEIU’s objections, no NLRA violation occurred. The court declined to enforce the Board’s order on the SEIU claims and directed dismissal of the related complaint.

The NNOC Grievance Representative Dispute

The second dispute concerned whether Midwest violated the NLRA by excluding a second union representative — NNOC Labor Representative Lisa Perry — from a Step 1 grievance meeting. Midwest argued the CBA permitted only one union representative. Both the ALJ and the Board found a violation.

The Eighth Circuit enforced the Board’s order. Applying de novo review to the CBA’s language, the court found the agreement was at best silent on the number of union representatives permitted. Under Section 7 of the NLRA, employees retain the right to freely select their grievance representatives absent a clear contractual waiver. The court also noted that because the grievance was filed on behalf of a group, Broeker could plausibly have attended as a grievant-witness, leaving Perry to serve as the union representative — meaning Midwest’s exclusion of Perry lacked even a textual foundation.

The court granted enforcement of the Board’s order as to NNOC, reversed as to SEIU, and remanded with instructions to dismiss the SEIU-related portions of the complaint.

Significant Cases Cited

• W.A. Krueger Co., 325 NLRB 1225 (1990): Board held that an employer violates the NLRA by withdrawing recognition of a union after a decertification vote but before the Board certifies the election results.

• Mike O’Connor Chevrolet, 209 NLRB 701 (1974): Board established the “act at your peril” standard, holding that employers who make unilateral changes while election objections are pending must bargain retroactively if the union is ultimately certified.

• Johnson Controls, Inc., 368 NLRB No. 20 (2019): Board held that an employer who withdraws recognition after a decertification vote but refrains from unilateral action makes any subsequent changes at its peril, effectively undermining the Krueger rule.

• NLRB v. Arkema, Inc., 710 F.3d 308 (5th Cir. 2013): Fifth Circuit denied enforcement of a Board order, holding that an employer does not automatically violate the NLRA by acting on decertification election results before they are formally certified.

• Dow Chemical Co. v. NLRB, 660 F.2d 637 (5th Cir. 1981): Fifth Circuit rejected the Krueger/Presbyterian Hospital rule, holding there is no basis in law or justice for applying different standards to initial certification and decertification elections.

Jones Lang LaSalle Americas, Inc., 374 NLRB No. 62, 20-CA-328308 (Published Board Decision)

The Board issued a brief supplemental decision in Jones Lang LaSalle Americas, Inc., resolving a remedial question it had set aside from its March 2024 ruling. In that earlier decision, the Board had found the employer violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the union following certification — a so-called “test-of-certification” case — and ordered bargaining. The Board had severed for later consideration whether to overrule Ex-Cell-O Corp., the 1970 precedent holding that employers who refuse to bargain while challenging a union’s certification face no monetary make-whole remedy for the delay.

The General Counsel had urged the Board to abandon Ex-Cell-O and instead require employers to compensate employees for the lost opportunity to bargain collectively at the time and in the manner the NLRA contemplates. The Board declined, citing its February 2026 decision in Longmont United Hospital, which had just reaffirmed Ex-Cell-O‘s remedial framework.

Member Prouty dissented on the remedy, arguing the Board should overrule Ex-Cell-O and make affected employees whole for any provable, reasonably quantifiable economic harm caused by the unlawful refusal to bargain — consistent with his dissent in Longmont United Hospital.

Significant Cases Cited

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Established that the Board will not impose monetary make-whole remedies against employers who refuse to bargain while challenging a union’s certification in test-of-certification cases.

• Longmont United Hospital, 374 NLRB No. 52 (2026): Reaffirmed the Ex-Cell-O remedial framework, declining to expand make-whole relief in test-of-certification refusal-to-bargain cases.

• Jones Lang LaSalle Americas, Inc., 373 NLRB No. 37 (2024): The underlying Board decision finding an 8(a)(5) violation and ordering the employer to bargain with the union, subsequently enforced by the D.C. Circuit.

Blue School, 374 NLRB No. 63, 02-CA-294227 (Published Board Decision)

Same basic thing as the prior case.

Young Brothers, LLC, 20-RC-378244 (Regional Election Decision)

International Longshore and Warehouse Union, Local 142 petitioned to represent approximately ten tugboat captains employed by Young Brothers, LLC, a Hawaii inter-island cargo shipping company. The employer argued the captains are statutory supervisors under Section 2(11) of the NLRA, which would exclude them from coverage and require dismissal of the petition. The sole issue litigated was supervisory status.

The Acting Regional Director found the employer failed to prove, by a preponderance of the evidence, that the captains hold any of the Section 2(11) supervisory indicia — hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, responsibly direct, or adjust grievances — with independent judgment.

On discipline, the employer presented testimony that captains could issue oral and written warnings, but the evidence was conflicting: the two management witnesses described different progressive discipline systems, most disciplinary exhibits involved captains who did not testify, and the one documented written warning involved conflicting evidence about whether it was self-initiated or directed by the port captain. Per Matson Terminals v. NLRB, conflicting testimony is resolved in favor of those occupying the alleged supervisory role — here, the captains themselves — who indicated they acted at management’s direction.

On responsible direction, the employer relied on the captains’ safety authority, issuance of standing orders, and discretion to “short sail” with reduced crews. The Acting Regional Director found these insufficient: safety and equipment responsibilities alone do not confer supervisory status, accountability for crew failures was established only by conclusory testimony without concrete examples, and the captains’ own testimony indicated short-sail decisions required consultation with crew and approval from management.

On assignment, the employer pointed to captains’ discretion over lay-day scheduling, watch assignments, and temporary crew transfers. The Acting Regional Director found the testimony vague and conflicting, and noted that the employer’s MobileOps system largely directs daily crew tasks automatically, reducing any claim of independent judgment.

On hiring, promotion, reward, and grievance adjustment, the decision found only paper authority or insufficient evidence in each category. Captains’ evaluations played some role in promotions but the employer failed to show promotion decisions were made based solely on captain input without further management review.

The Acting Regional Director also noted secondary indicia of supervisory status — captains’ attendance at management meetings, input into the SMS Manual, and the absence of any other supervisor aboard the vessel — but held these cannot substitute for a showing of at least one primary Section 2(11) indicum. The decision directed a mail-ballot election, finding that the captains’ varying schedules and geographic dispersion across the Hawaiian islands made a manual election impractical.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the Board’s definitions for the Section 2(11) supervisory indicia, including the standard for “independent judgment.”

• Brusco Tug & Barge, 359 NLRB 486 (2013): Defined “assign” and “responsibly direct” in the maritime context, requiring that a purported supervisor be held accountable for a crew’s performance failures.

• Veolia Transportation, 363 NLRB 1879 (2016): Held that disciplinary authority confers supervisory status only where it leads to personnel action without independent investigation by higher management, and that verbal reprimands or reportorial warnings are insufficient.

• Cook Inlet Tug & Barge, 362 NLRB 1153 (2015): Found that vague or hypothetical testimony about captains directing crew tasks based on individual strengths is insufficient to establish supervisory assignment authority.

• San Diego Gas & Electric, 325 NLRB 1143 (1998): Set forth the conditions under which mail-ballot elections are appropriate, including where eligible voters are geographically scattered or have significantly varying work schedules.

Windstream Florida, LLC D/B/a Kinetic, 12-RD-375660 (Regional Election Decision)

Region 12 Regional Director David Cohen directed a mail ballot election in this decertification proceeding involving approximately 148 telecommunications field employees spread across 15 reporting sites in north central Florida. The sole dispute was whether the election should be conducted manually or by mail.

The employer and the individual petitioner favored a manual election, proposing three polling locations with satellite-site employees traveling up to 84.9 miles to reach the nearest poll. The union favored mail balloting, citing concerns that distance and traffic could suppress participation. The Regional Director noted at the outset that election mechanics — including the choice between manual and mail voting — are not litigable issues at a representation hearing under NLRB rules and relevant precedent, including Halliburton Services and Manchester Knitted Fashions. Accordingly, the parties were limited to submitting factual representations rather than witness testimony.

Applying the framework from San Diego Gas & Electric, the Regional Director found that a mail ballot was appropriate because unit employees are “scattered” across nine counties due to the nature of their field work. The decision rejected the employer’s argument that employees’ regular job-related travel made a manual election practicable, finding that fact unpersuasive given the logistical burdens a manual election would impose. The Regional Director also dismissed concerns about infrequently checked post office boxes, noting that the employer — not the union — would supply the voter list with accurate addresses, and would be required to post and electronically distribute notices at all 15 sites. Administrative efficiency also weighed in favor of mail balloting: a manual election would have required three of the five Tampa-based NLRB agents to travel extensively.

Significant Cases Cited

• San Diego Gas & Electric, 325 NLRB 1143 (1998): Established that Regional Directors have broad discretion over election mechanics and identified “scattered” workforce as a factor favoring mail ballot elections.

• Nouveau Elevator Industries, 326 NLRB 470 (1998): Held that a Regional Director’s election mechanics determinations will not be overturned absent a clear abuse of discretion.

• Halliburton Services, 265 NLRB 1154 (1982): Established that election mechanics, including voting method, are not litigable issues at representation hearings.

• Manchester Knitted Fashions, 108 NLRB 1366 (1954): Early precedent affirming that parties cannot litigate election details such as manual versus mail voting.

• London’s Farm Dairy, Inc., 323 NLRB 1057 (1997): Recognized the Board’s longstanding authority to conduct mail ballot elections when circumstances warrant.

Wuji World Inc. D/B/a Off Broadway Car Wash, 374 NLRB No. 59, 29-CA-319174 (Published Board Decision)

The Board granted the General Counsel’s motion for default judgment against Wuji World Inc., an Elmhurst, New York car wash, after the employer failed to comply with the terms of an informal settlement agreement resolving Section 8(a)(5) and (1) charges.

The underlying dispute arose from Wuji World’s 2023 acquisition of a predecessor business, D&K Star LLC, whose car wash employees had been represented by the Retail, Wholesale and Department Store Union, UFCW under successive collective-bargaining agreements. Because Wuji World reopened the business in substantially unchanged form and retained a majority of D&K’s employees, the Board found it to be a successor employer obligated to recognize and bargain with the Union under Section 9(a) of the NLRA. The employer refused repeated bargaining requests beginning in April 2023.

The parties entered into an informal settlement agreement in early 2024 requiring the employer to bargain on a structured schedule (at least two days per week, six hours per session), post and read a Notice to Employees, and submit monthly written progress reports to the Region. The agreement included a standard noncompliance clause permitting the General Counsel to seek default judgment if the employer failed to cure any breach within 14 days of notice.

After the employer failed to bargain as required, submit progress reports, or return completed certification forms, the Regional Director issued the required 14-day notice in April 2024. The employer still did not comply, leading to reissuance of the complaint in October 2024 and the filing of the motion for default judgment. The employer did not respond to the Board’s show-cause order, leaving all allegations uncontested.

The Board’s remedy is limited to enforcing the unmet terms of the settlement agreement — structured bargaining, monthly progress reports, and a sworn compliance certification — rather than imposing a “full remedy.” The Board declined to award make-whole relief or a Mar-Jac Poultry Co. certification-year extension because the General Counsel’s motion, despite technically preserving those options under the settlement’s default clause, was construed as seeking only enforcement of the agreement’s existing terms rather than additional relief.

Significant Cases Cited

• U-Bee, Ltd., 315 NLRB 667 (1994): Under a settlement agreement’s noncompliance clause, the Board may deem all complaint allegations admitted and enter findings of fact without a hearing.

• Continental Packaging Corp., 327 NLRB 400 (1998): Where a respondent refuses to produce subpoenaed jurisdictional documents, the General Counsel need only establish statutory jurisdiction to support assertion of Board jurisdiction.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): The Board may extend the certification year as a remedy when an employer’s refusal to bargain has prevented the union from demonstrating its majority status.

• Benchmark Mechanical, Inc., 348 NLRB 576 (2006): The Board will not, sua sponte, impose remedies beyond those requested by the General Counsel in a default judgment motion.

• Opal Care, 368 NLRB No. 103 (2019): A General Counsel’s motion to “comply with the terms of a settlement” is construed as a request to enforce unmet settlement terms, not as a request for a full unfair labor practice remedy.

Portillo's Hot Dogs, LLC, 374 NLRB No. 58, 13-CA-354045 (Published Board Decision)

The Board granted summary judgment against Portillo’s Hot Dogs in a straightforward refusal-to-bargain case under Section 8(a)(5) and (1) of the NLRA. The Ironworkers union had been certified as bargaining representative of production and maintenance employees at the company’s Addison, Illinois food production facility following an election in April 2023, but Portillo’s refused to bargain after the Board denied its request for review of the certification in August 2024.

Portillo’s challenged the certification by arguing the union had improperly promised employees work permits, green cards, and citizenship in exchange for their votes. The Board rejected that argument as having been raised and resolved in the prior representation proceeding, and declined to revisit it in the unfair labor practice context under the rule of Pittsburgh Plate Glass Co. v. NLRB. The company also raised several constitutional defenses — including removal protections for Board members and ALJs, separation of powers, and a Seventh Amendment challenge to the Board’s adjudication of private rights — all of which the Board rejected as unsupported and meritless.

On remedy, the Board declined the General Counsel’s request to impose make-whole relief for employees’ lost opportunity to bargain, reaffirming the longstanding bar established by Ex-Cell-O Corp. and citing its recent decision in Longmont United Hospital. Member Prouty dissented on that point alone, urging the Board to overrule Ex-Cell-O and award economic make-whole relief to affected employees. The Board ordered Portillo’s to bargain on request and tolled the certification year until good-faith bargaining begins.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues that were or could have been litigated in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case.

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Held that the Board lacks authority to impose make-whole monetary remedies on employers for employees’ lost opportunity to bargain resulting from an unlawful refusal to bargain.

• Longmont United Hospital, 374 NLRB No. 50 (2026): Reaffirmed Ex-Cell-O’s bar on make-whole relief in test-of-certification refusal-to-bargain cases.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the one-year certification bar period begins running only from the date the employer commences good-faith bargaining, not from the certification date itself.

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Upheld the constitutionality of the NLRA and rejected the argument that Board adjudication of labor disputes violates the Seventh Amendment right to jury trial.

Honeywell International Inc., JD-16-26, 09-CA-327389 (ALJ Decision)

ALJ Christal J. Key found that Honeywell violated Section 8(a)(1) of the NLRA by maintaining overbroad provisions in two agreements: an Employment Agreement required as a condition of hire, and a Severance Agreement proffered to terminated employees.

Employment Agreement

Honeywell required employees to sign a confidentiality agreement prohibiting disclosure of “confidential information” both during employment and for two years after termination. The ALJ applied the Stericycle two-step test, finding that the provision’s sweeping definition of confidential information — including “knowledge, data, information,” “compilations of data,” “financial information, operating and cost data,” and “the identities and competencies of Honeywell’s employees” — would reasonably chill employees from discussing wages, working conditions, or coworker identities with a union or fellow employees. The ALJ then found Honeywell failed to rebut the presumption of unlawfulness because, while it established a legitimate business interest in protecting proprietary product information, the rule swept far more broadly than necessary to serve that interest. The absence of any savings language in the Employment Agreement was also noted; Honeywell’s argument that savings language in its Severance Agreement cured the defect failed because employees are bound by the Employment Agreement independently of whether they ever receive or sign the Severance Agreement.

Severance Agreement

The ALJ analyzed three provisions under McLaren Macomb: (1) a confidentiality clause barring employees from disclosing the agreement’s terms to other employees or third parties; (2) a cooperation and nondisclosure clause requiring employees to notify Honeywell before providing information to any non-governmental third party regarding potential legal claims, and to permit Honeywell’s representative to be present during any such communications; and (3) a non-disparagement clause broadly prohibiting statements tending to create a negative impression of Honeywell, its management, culture, or employees, with no temporal limitation. All three were found unlawful. The ALJ rejected Honeywell’s argument that the agreement’s savings clause — printed in bold on page 4, expressly preserving NLRA-protected activity — cured the overbreadth. The savings language failed because the restrictive provisions directly contradicted it, and because rank-and-file employees cannot be expected to resolve such contradictions through legal analysis. The ALJ cited Stericycle‘s standard that rules are read from the perspective of a non-lawyer employee. The cooperation clause was particularly problematic because it effectively required Honeywell’s involvement before employees could assist coworkers, unions, or attorneys investigating employment claims, subject to significant financial penalties including attorney’s fees.

On remedy, the ALJ declined to order backpay for charging party Stephen Ferguson, finding he would not have signed even a lawful severance agreement given that he was simultaneously pursuing a race discrimination claim over his termination. The remedy is limited to rescission of the unlawful provisions, notice to affected employees, and posting.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): The Board held that severance agreements conditioning benefits on overbroad confidentiality and non-disparagement provisions violate Section 8(a)(1), regardless of whether the employee accepts or declines the agreement.

• Stericycle, Inc., 372 NLRB No. 113 (2023): The Board established a two-step test for evaluating facially neutral work rules, presuming a rule unlawful if it has a reasonable tendency to chill Section 7 rights, with the burden on the employer to show a legitimate business interest that cannot be advanced by a more narrowly tailored rule.

• Double Eagle Hotel & Casino, 341 NLRB 112 (2004): The Board found that a workplace rule prohibiting employees from communicating confidential or sensitive company information to non-employees without management approval violated Section 8(a)(1).

• Quicken Loans, Inc., 361 NLRB 904 (2014): The Board held that employees have a Section 7 right to share employee information, including lists, rosters, and schedules, with a labor union.

• U-Haul Co. of California, 347 NLRB 375 (2006): The Board held that savings language purporting to preserve legal rights does not cure overbroad restrictions on protected conduct when the language requires employees to apply legal analysis to understand their rights.

Great Pacific Iron Works, 02-RC-381600 (Regional Election Decision)

Region 2 Regional Director John D. Doyle, Jr. issued a Decision and Direction of Election on March 11, 2026, ordering a union election among approximately 20 employees at the New York City retail store of Great Pacific Iron Works, an outdoor apparel and accessories retailer. The petitioning union is the Retail Wholesale Department Store Union (RWDSU).

The decision turns largely on a procedural preclusion ruling. The employer was required to file and serve a Statement of Position by noon on March 2, but filed it at 12:17 p.m. and served it on the petitioner at 12:36 p.m. — both untimely. Under Section 102.66(d) of the Board’s Rules, a party that misses the Statement of Position deadline is precluded from raising any issue at the pre-election hearing other than the Board’s statutory jurisdiction. As a result, the employer was barred from litigating its contention that the Team Leader classification consists of statutory supervisors under Section 2(11) of the NLRA. The Regional Director affirmed that preclusion ruling and found that no litigable issues remained.

On the appropriate unit question, the Regional Director found the petitioned-for unit — all full-time and regular part-time Customer Experience Guides and Team Leaders at the Crosby Street location — appropriate as a wall-to-wall, single-facility unit. Relying on the Board’s longstanding presumption that plant-wide and store-wide units are appropriate, and noting that the only excluded classifications were those typically excluded by policy or statute (supervisors, guards, professionals, and office clericals), the Regional Director directed an election in the unit as proposed.

Significant Cases Cited

• Williams-Sonoma Direct, Inc., 365 NLRB 111 (2017): Established that a Regional Director may reject an employer’s Statement of Position and preclude litigation of issues raised therein when the SOP is not timely served, and reaffirmed the Board’s obligation to find record support for the appropriateness of a proposed unit before directing an election.

• Brunswick Bowling Products, LLC, 364 NLRB 1233 (2016): Held that a Statement of Position filed on time but served only hours late is still untimely, establishing a strict standard for SOP service deadlines.

• Allen Health Care Services, 332 NLRB 1308 (2000): Affirmed that the Board has a statutory obligation to determine the appropriate bargaining unit and must have record evidence supporting unit appropriateness before directing an election.

• Kalamazoo Paper Box Corp., 136 NLRB 134 (1962): Established the presumption that a plant-wide bargaining unit is appropriate under the NLRA and that a community of interest inherently exists among employees in such a unit.

• May Department Stores Co., 97 NLRB 1007 (1952): Recognized the store-wide unit as presumptively appropriate in the retail industry, describing it as the “optimum unit” for collective bargaining purposes.

Doctors Hospital of Manteca, Inc. D/B/a Doctors Hospital of Manteca, 32-RC-379650 (Regional Election Decision)

NLRB Region 32 Regional Director Christy J. Kwon issued a Decision and Direction of Election on March 9, 2026, directing an Armour-Globe self-determination election among approximately seven Emergency Department Technicians (EDTs) at Doctors Hospital of Manteca (DHM), a facility owned by Tenet Healthcare. The union, SEIU-United Healthcare Workers West, petitioned to add the EDTs to an existing multi-facility, multi-employer bargaining unit spanning seven Tenet hospitals in California.

The employer argued the petition should be dismissed on three grounds: the existing unit is non-cognizable because it is a nonconforming unit under the Board’s Health Care Rule (29 C.F.R. § 103.30); the EDTs lack a community of interest with the existing unit; and they do not constitute a distinct and identifiable segment. The Regional Director rejected all three arguments.

On the nonconforming unit question, the Regional Director relied on St. Vincent Charity Medical Center and Rush University Medical Center v. NLRB to confirm that an Armour-Globe election may be directed even where the existing unit already fails to conform to the Health Care Rule, because such a proceeding adds employees to an existing unit rather than creating an additional unit.

On distinctness, the Regional Director found the EDTs constitute a clearly defined group sharing the same job classification, department, duties, and supervision — and noted that the existing CBA already includes EDTs at two other signatory hospitals, confirming a rational basis for treating them as a discrete segment.

On community of interest, the Regional Director applied the multi-factor test from United Operations, Inc. and found several factors weighed in favor of inclusion. Job duties overlapped substantially with those of monitor technicians and CNAs, both already in the unit. Functional integration was found to be high: EDTs and unit employees perform different steps of the same patient care process and necessarily depend on one another — for example, phlebotomists draw blood, EDTs transport specimens, and phlebotomists test them. Contact was near-constant, with EDTs interacting with unit employees on nearly every routine task. Interchange was regular, with EDTs substituting as monitor technicians approximately weekly and performing patient sitting duties (a bargaining unit role) roughly monthly. Common supervision, shared terms and conditions, and bargaining history — including the CBA’s existing coverage of EDTs at other Tenet hospitals — further supported inclusion. The skills and training factor was neutral due to an undeveloped record. The Regional Director concluded that adding DHM’s EDTs to the existing unit would move the unit closer to Health Care Rule conformity and avoid unnecessary unit proliferation.

Significant Cases Cited

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): An Armour-Globe self-determination election may add employees to an already nonconforming unit under the Health Care Rule, and nonprofessionals at an acute care hospital have a presumptive community of interest with all other nonprofessionals.

• United Operations, Inc., 338 NLRB 123 (2002): Sets out the multi-factor community of interest test used to evaluate whether employees should be grouped into a single bargaining unit, with no single factor being determinative.

• Warner-Lambert Co., 298 NLRB 993 (1990): Establishes that an Armour-Globe self-determination election is the proper mechanism for adding unrepresented employees to an existing unit, requiring both a community of interest and a distinct, identifiable segment.

• Rush University Medical Center v. NLRB, 833 F.3d 202 (D.C. Cir. 2016): Holds that Section 103.30(c) of the Health Care Rule applies only to petitions for additional units, and that an Armour-Globe election does not create an additional unit but expands an existing one.

• MV Transportation, Inc., 373 NLRB No. 8 (2023): Confirms that in self-determination and unit-clarification proceedings, the group seeking to join an existing unit need only share a community of interest with a minority of that unit, not all or a majority of it.

As regular readers know, NLRB Edge is an extension of a larger project of mine to use Large Language Models to make labor law more accessible. The larger project’s home is at NLRBResearch.com. In the last couple of weeks, there have been some significant updates to that project that I wanted to notify NLRB Edge readers about.

First, in addition to the NLRB Law and NLRB Dockets databases, I have added MSPB Law and Union Contracts databases.

The MSPB Law database is basically the same thing as the NLRB Law database except for the Merit Systems Protection Board. It contains:

1. Every MSPB decision ever decided — both precedential and nonprecedential decisions.

2. Every Federal Circuit decision that uses the phrase “Merit Systems Protection Board.” Federal Circuit decisions are precedential for the MSPB.

3. Every Circuit Court and Supreme Court decision that uses the phrase “Merit Systems Protection Board.”

4. All of the relevant statutory and regulatory text for the MSPB.

5. Selected MSPB agency guidance.

The Union Contracts database is an ever-growing collection of collective-bargaining agreements that is being scraped from the internet. Because CBAs are strewn across the web in an unstructured way, constructing this database relies heavily on LLMs to go out on the web and find PDFs of CBAs and then add them to the database. At present, there are 2,097 CBAs and the database is growing by about 5 to 10 contracts a day. All of the CBAs in the Union Contracts database are full-text searchable, meaning that you can search through them to find examples of contract language for pretty much anything that might go into a CBA (e.g. “progressive discipline”).

Second, I have created an MSPB AI Research Assistant that is similar to my NLRB AI Research Assistant. If you sign up for the free trial here, I will email you both assistants with instructions on how to use them. The short instructions are that you load the emailed files into the Claude chatbot, then you trigger the bots with any question you have about the NLRB or MSPB, which will then cause the bots to search through my databases to find an answer and write you a memo with all of its sources cited, linked, and quoted. Those who have already signed up for the free trial will be receiving an email today or tomorrow with the new MSPB AI Research Assistant as well as an updated NLRB AI Research Assistant.

Finally, I wanted to share a recent video I posted of me using my NLRB Research Assistant to scrutinize the arguments made by opposing counsel in a recent case I litigated. The goal of this video was to see if the NLRB Research Assistant would be able to spot a particular error that opposing counsel made (citing two overruled cases). It succeeded at that.

I think this video is a good illustration of the various creative ways that the NLRB Research Assistant can be used to improve your legal practice. In addition to asking it questions that it then researches and attempts to answer, you can also upload briefs filed by opponents and have it analyze their arguments. Similarly, you could upload your own arguments before filing them to get a double-check on their merits and vulnerabilities.

So far, all of the feedback on the tool has been positive and usage of it among those who have signed up for the free trial has also been high. So, if you have been interested but skeptical, now is the time to give it a try. (https://nlrbresearch.com/ai)

One last thing I will say on this, just because multiple people have asked, is that NLRBResearch.com does not store any user queries or other information being searched. The only thing it stores is timestamps of every time a particular account uses the research assistant. So if you are worried about privacy and case information being stored by a third-party service, I am not doing that and will not do that. With that said, what Anthropic/Claude may store is a separate matter and you should be attentive to those settings.

Brown-Forman Corp. V. NLRB, 25-1060, (Sixth Circuit)

The Sixth Circuit ruled 2-1 in Brown-Forman Corp. v. NLRB (March 6, 2026) that the Board’s Cemex bargaining order standard was invalidly created through adjudication, granting the employer’s petition for review and remanding.

Background and Unfair Labor Practices

When workers at Brown-Forman’s Woodford Reserve distillery in Versailles, Kentucky began organizing with the Teamsters in 2022, the company responded with a $4-per-hour across-the-board raise — the first time it had given employees two across-the-board increases in a single year — along with expanded pay progression benefits and, one week before the election, bottles of bourbon. The union lost 45-14. The Board upheld the ALJ’s finding that these actions violated NLRA Section 8(a)(1) and (3) as coercive benefits timed to undermine organizing, relying in part on NLRB v. Exchange Parts Co., which prohibits “well-timed” benefits conferred with the purpose of chilling union support. The court affirmed those findings under substantial evidence review, also rejecting the employer’s argument that pre-petition conduct was off-limits, since the wage increase was part of a continuing course of coercive conduct that extended into the post-petition period.

The Gissel Framework

The Court majority began by explaining the Gissel Packing framework that Cemex purported to supplement or replace. According to the Court, under Gissel, bargaining orders were treated as a last resort — an extraordinary remedy available only when the Board made an affirmative, case-specific finding that a fair rerun election was unlikely. Gissel identified three categories of employer conduct. Category I involved outrageous and pervasive unfair labor practices so severe that a bargaining order was the only available remedy. Category II — the more commonly invoked category — covered less pervasive practices that nonetheless undermined majority strength and impeded the election process; here, the Board had to find that the possibility of a fair rerun election, “though present, is slight.” Category III covered minor violations with minimal electoral impact, which could never sustain a bargaining order. The defining feature of the Gissel framework, in the majority’s view, was its forward-looking inquiry: the Board was required to evaluate whether a fair election could still be held going forward, not merely whether the prior election had been tainted.

The Cemex Standard and Its Invalidation

In this case, the Board issued a bargaining order based solely on Cemex Construction Materials Pacific, LLC (2023), which the majority described as making a “fundamentally different” analytical move. Rather than asking whether a fair future election remained possible, Cemex asked only whether the prior election should be set aside. If the answer to that backward-looking question was yes, a bargaining order issued automatically — the Board no longer needed to evaluate the prospect of a clean rerun. The majority characterized this as transforming bargaining orders from an exceptional remedy into a default one.

The majority also emphasized a structural feature of the Cemex opinion that it found telling: the Cemex Board had actually applied Gissel to resolve the case before it, concluded that Gissel provided an adequate basis for a bargaining order, and only then — in a separate section of the opinion — announced its new standard. Because the Cemex Board had already resolved the dispute under Gissel, the new standard added nothing to that particular case. The only work it could do was prospective, deterring future employer misconduct in other cases. That, in the majority’s view, exposed Cemex as rulemaking in disguise.

The majority further took issue with Cemex‘s framing of its purpose around general deterrence. Gissel had discussed deterrence in the narrow sense of preventing a specific respondent from continuing or repeating its own violations. The majority read Cemex as having repurposed that rationale into something far broader — a justification for a generally applicable policy designed to discourage future conduct by employers who were not parties to the Cemex adjudication at all. The Board’s adjudicatory authority, the court held, does not extend that far. Deterrence of hypothetical future violations by non-parties is a function of rulemaking under 29 U.S.C. § 156, not adjudication under 29 U.S.C. § 160.

Because the Board relied solely on the now-invalid Cemex standard in this case and provided no independent Gissel analysis, the bargaining order could not stand, and the court remanded for the Board to apply proper standards.

The majority explicitly declined to decide whether Cemex‘s substance was actually inconsistent with Gissel or otherwise exceeded the Board’s statutory authority, reserving that question for another day. The holding was narrow: Cemex fell not because its policy was necessarily wrong, but because the Board used the wrong procedural vehicle to announce it.

The Dissent

Judge Mathis dissented, framing the Cemex-Gissel relationship quite differently. In his reading, Cemex did not replace Gissel so much as refine it. Gissel had authorized bargaining orders when an employer’s conduct undermined election integrity; Cemex simply codified, as a matter of Board policy, that when misconduct is serious enough to void an election, the possibility of a fair rerun is by definition slight — which is precisely what Gissel Category II required the Board to find anyway. The dissent also pushed back on the majority’s rulemaking-through-adjudication theory, arguing that under NLRB v. Bell Aerospace Co., the Board has broad, court-endorsed discretion to choose between rulemaking and adjudication, and that the prospective effect of any adjudicatory holding on future cases is simply how precedent works. He further argued that Cemex bore all the hallmarks of a proper adjudication — it arose from a party’s request, applied the new standard to the employer in the same proceeding, and involved reasoned decisionmaking supported by the Board’s experience administering the NLRA.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established the framework under which the Board may issue a bargaining order when employer misconduct makes a fair rerun election unlikely, while affirming the general preference for secret-ballot elections.

• SEC v. Chenery Corp., 332 U.S. 194 (1947): Held that an agency exercising adjudicatory authority must base its decision on the particular facts of the case before it, establishing core limits on adjudicative policymaking.

• NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969): Held that the Board improperly used adjudication to create a generally applicable rule not derived from the case’s specific facts, distinguishing permissible case-by-case policymaking from rulemaking through adjudication.

• NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): Affirmed the Board’s discretion to choose between rulemaking and adjudication while acknowledging that reliance on adjudication could constitute an abuse of discretion in some circumstances.

• NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): Held that an employer violates the NLRA by conferring economic benefits on employees timed to discourage union support, even where the benefits are otherwise favorable to employees.

Woodward Inc., 13-RM-374508 (Regional Election Decision)

Woodward, Inc., a manufacturer of aerospace products, filed an RM petition seeking a new representation election after its longtime bargaining representative — the Woodward MPC Employees Representative Union (”MPC”), a small independent union certified since 1967 — voted to affiliate with the UAW in September 2025. Woodward argued that the cumulative changes accompanying the affiliation were so significant that MPC had been replaced by a materially different organization, destroying the presumption of continued majority support. Regional Director Angie Cowan Hamada dismissed the petition, finding substantial continuity between the pre- and post-affiliation union.

Legal Framework

Once a union is certified, it enjoys a presumption of continuing majority support. Affiliation with a national or international organization does not, standing alone, disturb that presumption. A question concerning representation arises in the affiliation context only if organizational changes are “sufficiently dramatic to alter the union’s identity,” effectively substituting a new organization for the previously chosen representative. Under Raymond F. Kravis Center for the Performing Arts, the Board applies a single continuity-focused standard, abandoning the former two-pronged test that also assessed the adequacy of internal voting procedures. The employer bears the burden of proving discontinuity.

To assess substantial continuity, the Board examines four factors drawn from Service America Corp.: (1) continuation of leadership; (2) perpetuation of membership rights and duties; (3) continuation of contract negotiations, administration, and grievance processing; and (4) preservation of physical facilities, books, and assets. The analysis is qualitative, not mechanical, and gives paramount effect to employees’ desires.

Leadership

The Regional Director found substantial continuity of leadership. MPC’s elected President and Vice President retained their positions post-affiliation, and the majority of the steward body continued to serve. Only the Chief Steward stepped down. While the executive board expanded from five to nine positions, vacancies are to be filled through democratic elections limited to Local members — not outsiders. The Director rejected Woodward’s argument that the Local President’s authority was diminished, citing Central Washington Hospital and RCN Corp. for the proposition that the Board evaluates actual practice, not theoretical authority. Reserved or “paper” authority held by the UAW International — including oversight of finances and strike sanctioning — does not establish discontinuity absent evidence of regular exercise.

Membership Rights and Dues

All current MPC members transferred into UAW Local __ without initiation fees. Although new members will be subject to initiation fees, the Board treats fees applicable only to future members as immaterial. The dues structure will shift from a flat $2 weekly rate to a graduated system eventually reaching 2.5 hours of wages per month — a change the Director characterized as a foreseeable and ordinary consequence of affiliation. The Director rejected Woodward’s argument that other UAW constitutional provisions (governing membership eligibility and internal governance) materially altered members’ rights, finding no evidence those provisions had been enforced against current members.

Contract Negotiations, Grievance Processing, and Strike Authorization

Local President Tapia continued to serve as chief spokesperson in bargaining, and the composition of the bargaining committee was unchanged. UAW Representative Joe Morel attended sessions post-affiliation but in a limited, supportive role. The Director found no evidence the International had exercised reserved contract-approval authority or directed bargaining strategy. Grievances continued to be initiated and processed by Local officers and stewards as before. The International’s reserved right to approve strikes likewise did not establish discontinuity, as the Local membership retains the right to vote on strike authorization and no evidence showed the International had exercised that authority.

Physical Facilities and Assets

The Local continues to use the same facilities, bank accounts, and records as before affiliation. The Director distinguished the facts from Western Commercial Transport, where assets had been placed entirely beyond local membership control, finding no comparable evidence here. The diversion of a portion of dues to the International was characterized as a normal consequence of affiliation.

Waiver

The Union separately argued that Woodward waived its right to challenge the affiliation by continuing to bargain after learning of the vote. The Director declined to find waiver, noting that only a few weeks had elapsed between the affiliation vote and the filing of the RM petition, and that the Union had not demonstrated detrimental reliance. Waiver under Ventura County Star-Free Press requires evidence of prolonged acquiescence and detrimental reliance — neither of which was present here.

Significant Cases Cited

• Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143 (2007): Established the current single-prong substantial continuity standard for post-affiliation representation questions, abandoning inquiry into internal voting procedures.

• NLRB v. Financial Institution Employees of America, Local 1182 (Seattle-First National Bank), 475 U.S. 192 (1986): Supreme Court case recognizing that union affiliations are natural and foreseeable aspects of collective bargaining relationships that should not unnecessarily disrupt industrial stability.

• CPS Chemical Co., 324 NLRB 1018 (1997): Applied the substantial continuity factors and held that differences in size, bylaws, dues, and internal procedures resulting from affiliation do not establish discontinuity.

• Sullivan Bros. Printers, Inc., 317 NLRB 561 (1995): Affirmed that the substantial continuity inquiry is qualitative rather than quantitative and emphasized that the Board intervenes in internal union affairs only in the most limited circumstances.

• Minn-Dak Farmers Cooperative, 311 NLRB 942 (1993): Held that affiliation with a national organization does not alone affect a union’s representative status and that the Board’s policy strongly favors stability in bargaining relationships.

Pfizer, Inc., 374 NLRB No. 55, 10-CA-175850 (Published Board Decision)

The Board issued a supplemental decision dismissing a complaint alleging that Pfizer violated Section 8(a)(1) of the NLRA by maintaining a confidentiality provision in its mandatory arbitration agreement. The case had a lengthy procedural history: an ALJ originally found the confidentiality clause unlawful, the Board then remanded for reconsideration under the analytical framework established in Boeing Co., and the Board now resolves the matter by applying its intervening decision in California Commerce Club, Inc.

The confidentiality clause at issue required employees to keep arbitration proceedings, discovery disclosures, submissions, hearings, and awards confidential, subject to limited exceptions. It also included a carve-out stating that nothing in the clause would prohibit employees from discussing wages, hours, or other terms and conditions of employment.

The majority (Members Murphy and Mayer) held that the clause is lawful under California Commerce Club, which established that arbitration confidentiality provisions are shielded by the Federal Arbitration Act (FAA) to the extent they govern the rules under which arbitration is conducted. The majority found that the Pfizer clause’s coverage of discovery disclosures, submissions, hearings, and awards all constitute integral aspects of the arbitral proceeding itself, placing them squarely within FAA protection. The majority also noted that the explicit Section 7 carve-out reinforced that pre-existing information employees possess independently of the arbitration remains freely discussable.

Member Prouty concurred in the result only, applying California Commerce Club as controlling precedent in the absence of a three-member majority to overrule it, but wrote separately to argue that the decision was wrongly decided. Prouty contended that employees’ right to freely discuss workplace conditions — including information arising from arbitration proceedings — is a substantive Section 7 right, not a procedural one, and that the FAA does not require enforcement of contract provisions that violate the NLRA. Prouty distinguished Epic Systems Corp. v. Lewis, which addressed only the procedural right to class action processes rather than the well-established substantive right of employees to communicate about workplace conditions. He further argued that confidentiality, unlike bilateralism, is not a fundamental attribute of arbitration, and that courts have frequently invalidated party confidentiality requirements in arbitration agreements without conflicting with the FAA.

The ALJ’s supplemental decision, included in the record, had reached the opposite conclusion, applying Boeing and finding the clause unlawful as a Category 3 work rule. The ALJ reasoned that arbitration is itself a condition of employment, that the confidentiality clause directly chilled employees’ Section 7 right to discuss and publicly disclose working conditions, that the “limiting sentence” failed to adequately preserve those rights, and that Pfizer’s asserted business justification — fostering trust in the arbitration process — was insufficiently concrete to outweigh the substantial harm to core Section 7 rights.

The Board’s order dismisses the remaining complaint allegations.

Significant Cases Cited

• California Commerce Club, Inc., 369 NLRB No. 106 (2020): Established that confidentiality provisions in arbitration agreements specifying rules of arbitral proceedings are shielded by the FAA and do not violate the NLRA.

• Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018): Supreme Court held that the NLRA does not prohibit class or collective action waivers in arbitration agreements, and that the FAA requires enforcement of such agreements according to their terms.

• Boeing Co., 365 NLRB No. 154 (2017): Replaced the prior “reasonably construe” standard with a balancing test weighing the nature of a rule’s impact on NLRA rights against the employer’s legitimate justifications for maintaining it.

• Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468 (1989): Supreme Court held that the FAA requires enforcement of arbitration agreement provisions that specify the rules under which arbitration will be conducted.

• National Licorice Co. v. NLRB, 309 U.S. 350 (1940): Supreme Court affirmed that employers cannot use contracts to nullify NLRA obligations or strip employees of rights guaranteed by the Act.

Rosewood Care, LLC D/B/a Rosewood Rehabilitation and Nursing, 374 NLRB No. 53, 03-CA-297817 (Published Board Decision)

The Board adopted ALJ Andrew Gollin’s findings and conclusions in full, affirming violations of Sections 8(a)(1), (3), and (5) of the NLRA at a skilled nursing and rehabilitation facility in Rensselaer, New York, operated by Rosewood Care, LLC. The employer had restricted union representatives to a basement breakroom, called police on them for accessing other areas of the facility, banned two representatives and threatened them with criminal trespass charges, discharged an employee shortly after he was elected a union delegate, and ceased processing all pending grievances after the union filed unfair labor practice charges.

The Board’s adoption of the ALJ was not without modification, however, on several points.

On adverse inference: The ALJ drew an adverse inference from the employer’s failure to call its part owner, Israel Frankel, as a witness. The Board majority found it unnecessary to resolve the employer’s exception to that inference, concluding it had no material impact on the Section 8(a)(1) violations found. Member Prouty would have affirmed the adverse inference on its merits.

On remedies: The ALJ recommended a notice-mailing remedy, but the Board majority declined to adopt it, finding the Board’s traditional remedies sufficient. Member Prouty would have adopted the mailing remedy. The Board also corrected the ALJ’s recommended Order, which had inadvertently omitted a directive to rescind the numerous unilateral changes found — spanning dozens of specific dates in 2022 — and added standard language requiring their rescission. The Board further added a requirement that the employer immediately withdraw any outstanding trespass notices and criminal trespass charges against the union or its representatives, a remedy the ALJ had not included in the recommended Order despite finding those actions unlawful.

On the expanded backpay standard from Thryv: The ALJ ordered compensation for direct or foreseeable pecuniary harms beyond lost wages, consistent with Thryv, Inc. Members Murphy and Mayer noted they do not endorse that precedent but applied it in the absence of a three-member majority to overrule it, leaving open the possibility of future reconsideration.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for evaluating employer motivation in alleged discriminatory discharge cases under Section 8(a)(3), requiring the General Counsel to first establish a prima facie case of unlawful motive before the burden shifts to the employer.

• Turtle Bay Resorts, 355 NLRB 706 (2010): Held that a non-employee union representative’s access to employer premises pursuant to a contractual access clause or established past practice is protected Section 7 activity, and that interference with such access violates the NLRA.

• NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer may not unilaterally change represented employees’ terms and conditions of employment without first providing the union notice and an opportunity to bargain.

• Fred Meyer Stores, Inc., 368 NLRB No. 6 (2019): Held that union representatives lose the protection of the NLRA when their conduct constitutes a dramatic and unreasonable departure from established past practice regarding facility access.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s standard backpay remedy to include compensation for all direct or foreseeable pecuniary harms flowing from an unlawful discharge, beyond traditional lost wages and benefits.

Healthy Minds, Inc. And House of Hope of Bastrop, LLC, a Single Integrated Enterprise, 374 NLRB No. 56, 15-CA-231767 (Published Board Decision)

The Board issued a supplemental decision in a backpay compliance proceeding stemming from a 2021 unfair labor practice finding against Healthy Minds, Inc. The original decision had found that Healthy Minds unlawfully discharged employee Kimberly Defrese-Reese in violation of Section 8(a)(1) of the NLRA and ordered backpay. A compliance specification was later issued to determine the amounts owed, and it named additional respondents: affiliated company House of Hope of Bastrop, LLC, and three individuals — Angela Nichols, James Garland Smith, and Jerry Brown — on theories of single-employer status and personal derivative liability.

Most respondents failed to file timely answers to the compliance specification. Smith filed a late answer, but the Board found it legally insufficient because it failed to specifically address the factual allegations supporting single-employer status and the transactions underlying his alleged personal liability. Under Board Rule 102.56(c), unanswered or inadequately answered allegations are deemed admitted.

On the single-employer question, the Board admitted the factual allegations in paragraphs 1(a)–(c) establishing that Healthy Minds and House of Hope shared common officers, ownership, management, labor policies, and personnel, making them jointly and severally liable as a single integrated enterprise.

On individual liability, the Board pierced the corporate veil as to Nichols and Brown based on admitted allegations that they failed to observe corporate formalities and diverted or commingled corporate assets. The Board applied the standard from White Oak Coal requiring both a unity of interest sufficient to render corporate and individual identities indistinct, and a showing that adherence to the corporate form would sanction fraud or injustice. Smith’s answer was found sufficient only as to paragraphs 3(g)–(i), which specifically allege he diverted assets with intent to defraud and that those transfers lacked reasonably equivalent value — the Board ordered a hearing before an ALJ limited to those remaining allegations.

On backpay amounts, the Board admitted the uncontroverted compliance specification calculations as to Defrese-Reese’s lost earnings and benefits, with interest to accrue through the date of payment and adjustments for adverse tax consequences.

Significant Cases Cited

• White Oak Coal, 318 NLRB 732 (1995): Established the Board’s two-part test for piercing the corporate veil — requiring a unity of interest between the corporation and individuals such that their identities are indistinct, and a finding that maintaining the corporate form would sanction fraud or injustice.

• Kolin Plumbing Corp., 337 NLRB 234 (2001): Addressed procedural limitations on participation in hearings by respondents who have defaulted on portions of a compliance proceeding.

• Bryan Adair Construction Co., 341 NLRB 247 (2004): Established that a supplemental compliance order need not repeat remedial actions already contained in the underlying unfair labor practice order.

Valley Radiology, P.A., JD-14-26, 10-CA-324512 (ALJ Decision)

An ALJ ruled that Valley Radiology, P.A., a North Carolina radiology practice, violated Section 8(a)(1) of the NLRA by offering a separation agreement to Dr. Leena Mammen that contained overbroad non-disparagement and confidentiality clauses.

The facts were straightforward. When Dr. Mammen left her employment in July 2023 with $25,000 of a signing bonus loan still outstanding, Valley Radiology offered to forgive that balance if she signed a separation agreement. The agreement’s non-disparagement clause prohibited her from saying or doing anything to “disparage,” “injure,” or “harm” the company or its affiliates. The confidentiality clause barred her from disclosing the existence or terms of the agreement to anyone outside a narrow list of exceptions.

The ALJ applied McLaren Macomb, which holds that merely offering a separation agreement containing language broad enough to chill Section 7 rights itself constitutes a Section 8(a)(1) violation — regardless of whether the employee signs it. The respondent conceded the clauses were governed by McLaren Macomb but stated its intent to seek reversal of that precedent at the Board level. The ALJ acknowledged that posture but applied McLaren Macomb as binding current law. The non-disparagement clause mirrored language found unlawful in McLaren Macomb because it would sweep in protected conduct such as filing Board charges or making statements about workplace conditions. The confidentiality clause likewise tracked language invalidated in McLaren Macomb, since it would effectively prohibit an employee from even disclosing an unlawful agreement provision by filing an unfair labor practice charge.

On remedy, the ALJ departed from the General Counsel’s position. The GC had sought an order requiring Valley Radiology to re-offer the full severance package — including loan forgiveness — with only the unlawful clauses removed. The ALJ rejected that approach, reasoning that the underlying signing bonus loan and its forgiveness were unrelated to the unfair labor practice, that ordering forgiveness would impinge on freedom of contract without sufficient public interest justification, and that McLaren Macomb itself imposed no such remedy. The order requires Valley Radiology to rescind or revise the unlawful provisions and offer Dr. Mammen a lawful separation agreement, along with standard notice posting obligations.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): The Board held that proffering a separation agreement containing overbroad non-disparagement and confidentiality clauses violates Section 8(a)(1) of the NLRA.

• American Freightways Co., 124 NLRB 146 (1959): Established the standard that employer conduct violates Section 8(a)(1) if it has a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of Section 7 rights.

• Baylor University Medical Center, 369 NLRB No. 43 (2020): Held, pre-McLaren Macomb, that severance agreements were distinguishable from work rules because they addressed only post-employment matters; overruled by McLaren Macomb.

• IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020): Similarly held that severance agreements did not implicate Section 7 rights because they concerned post-employment conduct; overruled by McLaren Macomb.

American Automobile Association of Northern California, Nevada & Utah, JD-15-26, 32-CA-280838 (ALJ Decision)

ALJ Arthur J. Amchan found that AAA of Northern California committed widespread NLRA violations following Teamsters Local 665’s successful June 2021 representation election covering roughly 430 commissioned insurance agents across 78 California branches.

Applying Wright Line, the ALJ found five unlawful terminations. In each case, the employee’s invocation of Weingarten rights — requesting Business Agent Tom Woods at investigatory interviews — established AAA’s knowledge of union activity. The ALJ found AAA failed to show it would have terminated any of the five absent their union activity, relying heavily on evidence of disparate treatment and the uncontradicted testimony of former assistant manager Pamela Felix, who stated that a company VP told managers shortly after the election to “pull back support” on union agents without making it obvious.

On unilateral changes, the ALJ found multiple Section 8(a)(5) violations for AAA’s failure to bargain before tightening counter duty, work-from-home, flex-time, and PTO policies across several branches. The ALJ also found that AAA violated Section 8(a)(3) and (5) by excluding unit employees from the long-standing Circle of Excellence travel award while continuing it for non-unit workers — conduct the ALJ found inherently destructive of employee rights under NLRB v. Great Dane Trailers. Additional violations included an overbroad handbook confidentiality provision that employees would reasonably read as prohibiting wage discussions, subpoenas seeking information about employees’ protected activities and NLRB cooperation, and denial of an employee’s right to consult with her union representative before and during an investigatory interview.

Several allegations were dismissed, including the claim that AAA unlawfully stopped hiring bargaining unit agents, the Stockton branch closure (governed by First National Maintenance as a non-mandatory bargaining subject), and various workplace change claims lacking adequate first-hand evidentiary support.

The remedy requires reinstatement and make-whole relief for the five discharged employees, restoration of pre-February 2021 workplace policies at all affected branches, and compensation to all unit employees for lost Circle of Excellence benefits.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for discriminatory 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. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Holds that employer conduct inherently destructive of employee rights raises a presumption of unlawful motive, requiring the employer to establish a legitimate justification.

• First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Holds that an employer’s decision to close part of its business is not a mandatory subject of bargaining under the NLRA, though bargaining over effects remains required.

• Atlantic Steel Co., 245 NLRB 814 (1979): Sets out the four-factor test for determining whether an employee’s conduct during protected activity loses NLRA protection.

• Jennie-O Foods, Inc., 301 NLRB 305 (1991): Holds that stricter rule enforcement following an employer’s awareness of union organizing establishes a prima facie case of discriminatory motive, shifting the burden to the employer to show enforcement was unrelated to union activity.

Case Handling Guidance, GC 26-03, (GC Memo)

General Counsel Crystal S. Carey issued Memorandum GC 26-03 on February 27, 2026, providing updated operational guidance to regional offices on unfair labor practice case handling. The memo covers four main areas.

Prior Guidance Remains in Effect. Carey confirmed that all guidance issued by former Acting General Counsel Cowen remains operative. This includes the rescission of several prior GC memoranda and the continued implementation of the agency-wide docketing protocol. Importantly, the Office will no longer seek Board reconsideration of decisions in Ex-Cell-O Corp., Care One at New Milford, and Caesars Entertainment — cases involving remedial make-whole relief, successorship obligations, and employee use of employer email systems, respectively. The agency is actively withdrawing related allegations and arguments currently pending before ALJs and the Board.

Settlement Practices Narrowed. The memo directs regions to approve settlements and grant withdrawal requests when parties agree on lawful terms, regardless of the underlying allegations. Enhanced remedies — such as notice readings, apology letters, or nationwide postings — should no longer be routinely sought. Going forward, such remedies are reserved for egregious or recidivist conduct only, and the agency is actively rescinding pending requests for enhanced remedies.

Rules Cases Refocused. The memo instructs regions to pursue only those workplace rules that present clear, facial violations of the NLRA — such as explicit prohibitions on wage discussions — rather than broadly challenging vague rules without evidence of enforcement or actual employee impact. Cases involving unenforced rules without demonstrated harm should be settled or dismissed. Regions must also consider an employer’s industry context and any legitimate business justifications when evaluating challenged rules.

Evidence Request Procedures Tightened. Charging parties must be prepared to submit supporting evidence within two weeks of filing. Requests for evidence to charged parties (EAJA letters) may only be sent once the board agent determines a prima facie case exists. Such letters must be concise and targeted — for instance, if only a single rule is at issue, only that rule should be requested rather than an entire handbook. The memo also cautions that Section 10(j) injunctive relief inquiries should only be initiated when circumstances genuinely warrant it.

Significant Cases Cited

• Ex-Cell-O Corp., 185 NLRB 107 (1970): The Board declined to award compensatory bargaining order remedies for first-contract violations, a ruling the agency will no longer seek to overturn.

• Care One at New Milford, 369 NLRB No. 109 (2020): The Board addressed successorship obligations and remedies in the context of a change in employer, a precedent the agency will no longer seek to revisit.

• Caesars Entertainment, 368 NLRB No. 143 (2019): The Board held that employees generally have no statutory right to use employer email systems for NLRA-protected activity, a ruling the agency will no longer seek to overturn.

Longmont United Hospital, 374 NLRB No. 52, 27-CA-296153 (Published Board Decision)

The Board issued this supplemental decision to resolve a single remaining question from its 2022 ruling that Longmont United Hospital violated the NLRA by refusing to recognize and bargain with National Nurses Organizing Committee/National Nurses United: should the Board overrule Ex-Cell-O Corp. and require employers to pay compensatory damages for bargaining delays caused by “testing certification”?

The two-member majority declined to overrule Ex-Cell-O Corp., reaffirming its 56-year-old holding that the Board lacks authority to impose make-whole damages in test-of-certification cases. The majority offered three primary justifications. First, because an employer can only obtain judicial review of a Board certification by refusing to bargain, imposing compensatory damages for doing so would unconstitutionally burden the right to seek judicial review. Second, Section 8(d) of the NLRA bars the Board from compelling the parties to reach any agreement, and awarding damages in lieu of an agreement would achieve the same forbidden result indirectly. Third, such a remedy would be entirely speculative and would actively undermine future bargaining by entangling litigation over past damages with ongoing first-contract negotiations.

Member Prouty dissented, arguing that Ex-Cell-O Corp. was wrongly decided and that the Board’s Section 10(c) mandate to take affirmative action to effectuate the NLRA’s policies both permits and requires stronger remedies. Prouty proposed a two-track remedial framework. The first track would impose non-monetary remedies — union access to bulletin boards and employer facilities, ongoing employee contact information, a bargaining schedule with progress reports, and enhanced notice posting and reading requirements — to rebuild union standing eroded by lengthy delays. The second track would allow the General Counsel to prove at a compliance hearing that employees suffered quantifiable economic harm attributable to the bargaining delay, with the employer bearing the burden to rebut or mitigate. Prouty emphasized that employers who successfully challenge a certification would face no liability, limiting the remedy to employers whose refusals are ultimately found unlawful.

Significant Cases Cited

• Ex-Cell-O Corp., 185 NLRB 107 (1970): Established the Board’s longstanding rule that it lacks authority to award compensatory damages to employees and unions for an employer’s refusal to bargain while testing a union’s certification.

• H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970): Supreme Court held that Section 8(d) of the NLRA prohibits the Board from compelling parties to agree to any specific contract term, limiting the Board’s remedial authority in bargaining disputes.

• American Federation of Labor v. NLRB, 308 U.S. 401 (1940): Supreme Court held that Congress deliberately excluded Board certifications from direct judicial review, meaning an employer must refuse to bargain to obtain court review of a certification.

• In re Sewell, 690 F.2d 403 (4th Cir. 1982): Held that imposing liability on an employer for taking the steps necessary to seek appellate review of a Board order presents an unconstitutional interference with the right to judicial review.

• King Soopers, Inc., 364 NLRB 1153 (2016): Board decision modifying its standard make-whole remedy framework, cited in the dissent for the proposition that the Board has authority and obligation to provide meaningful remedial relief for NLRA violations.

Solution One Industries, Inc., 374 NLRB No. 50, 09-CA-293349 (Published Board Decision)

A Kentucky warehousing company violated the NLRA by refusing to treat five unresolved union grievances as automatically settled in the union’s favor after missing a contractual deadline to respond to them.

The parties’ contract required the company to answer Step 3 grievances within five working days of a Step 3 meeting, and required any deadline extension to be made in writing and signed by both sides. After a March 3, 2022 meeting, the company missed the March 10 deadline. It argued that comments made during the meeting — that it needed time to locate certain documents — constituted an informal extension request, and that a follow-up email sent on March 14 constituted a sufficient answer.

The Board rejected both arguments. Applying the “sound arguable basis” test from Bath Iron Works Corp., the Board found the company’s contract interpretation had no colorable support: the written-extension requirement was unambiguous, the March 14 email didn’t actually answer any grievance, and there was no past practice of informal extensions. The Board also rejected the argument that the conduct was merely a contract breach rather than an unfair labor practice, citing Transportation Services of St. John, Inc. for the principle that modifying a mandatory subject of bargaining mid-contract violates the NLRA without requiring proof of full contract repudiation. The company’s prior identical violation in Solution One Industries I further supported that its position was one of general application, not an isolated dispute.

The Board ordered the company to treat all five grievances as settled on the union’s terms.

Significant Cases Cited

• Bath Iron Works Corp., 345 NLRB 499 (2005): Established that an employer does not commit an unlawful midterm contract modification if its contract interpretation has at least a colorable basis.

• Transportation Services of St. John, Inc., 369 NLRB No. 15 (2020): Held that modifying a mandatory subject of bargaining mid-contract violates Section 8(a)(5) of the NLRA without requiring proof of full contract repudiation.

• Solution One Industries I, 372 NLRB No. 141 (2023): A prior Board decision finding the same employer had unlawfully modified the same grievance deadline provision by relying on an unwritten extension.

• Knollwood Country Club, 365 NLRB 404 (2017): Established that when evaluating a contractual defense, the Board considers both contract language and extrinsic evidence such as past practice and bargaining history.

• Oak Cliff-Golman Baking Co., 207 NLRB 1063 (1973): Established that Section 8(a)(5) and 8(d) of the NLRA prohibit an employer from modifying a collective-bargaining agreement’s terms during its life without union consent.

Entergy Louisiana, LLC, 15-RC-372529 (Regional Election Decision)

IBEW Local 2286 has been certified as the collective-bargaining representative of production technicians at Entergy Louisiana following a Region 15 decision sustaining challenges to three ballots cast by employees hired after the stipulated eligibility date.

The election was originally scheduled for October 7, 2025, but was postponed when the NLRB experienced a lapse in appropriated funding. After operations resumed, the Regional Director rescheduled the election for December 9, 2025, expressly preserving all other terms of the Stipulated Election Agreement — including the August 29, 2025 payroll eligibility date. Three employees hired on October 13, 2025 cast ballots, which were challenged by the Board on the grounds that they did not appear on the voter list.

The employer argued that the government shutdown constituted extenuating circumstances warranting a change to the eligibility date, and that the rescheduling order effectively voided the original agreement. The Regional Director rejected both arguments. Citing long-standing Board precedent treating stipulated election agreements as binding contracts, Regional Director M. Kathleen McKinney held that absent special circumstances — such as party conduct causing the delay — there was no basis to depart from the agreed-upon eligibility date. The two-month gap between the original and rescheduled election dates was found insufficient to justify updating the voter list. The decision also noted that allowing the employer to expand the electorate through post-petition hiring would give it undue influence over election outcomes, undermining the purpose of a fixed eligibility date.

With the three challenged ballots excluded, the revised tally stood at 9 votes for the union and 8 against, out of 17 eligible voters, and IBEW Local 2286 was certified as the exclusive bargaining representative.

Significant Cases Cited

• T & L Leasing, 318 NLRB 324 (1995): The Board treats stipulated election agreements as binding contracts that will be enforced when their terms are clear and unambiguous, absent special circumstances or conflicts with Board policy.

• Tekweld Solutions, Inc., 361 NLRB 201 (2014): A Regional Director does not abuse discretion by refusing to update a stipulated eligibility date even where significant time has elapsed between the eligibility date and the election.

• Jam Productions, Ltd. v. NLRB, 893 F.3d 1037 (7th Cir. 2018): A Regional Director did not abuse discretion in declining to move a stipulated eligibility date despite a seven-month election delay caused by a union unfair labor practice charge.

• Interlake Steamship Co., 178 NLRB 128 (1969): Updating an eligibility list may be warranted where party conduct caused an election delay, distinguishing cases where the delay results from external factors.

• Hartz Mountain Corporation, 260 NLRB 323 (1982): In a second election held after the original was nullified due to the winning union’s disclaimer of interest, updating the eligibility list was appropriate given the nature of the intervening event.

St. HOPE Public Schools, 20-RD-378706 (Regional Election Decision)

A NLRB hearing officer has directed a decertification election at St. HOPE Public Schools, a Sacramento charter school operator, after finding that the NLRB — not California’s Public Employee Relations Board (PERB) — has jurisdiction over the employer.

The central question was whether St. HOPE qualifies as a “political subdivision” under Section 2(2) of the NLRA, which would exempt it from NLRB jurisdiction. Acting Regional Director Daniel Owens applied the two-part test from NLRB v. Natural Gas Utility District of Hawkins County, under which an entity is a political subdivision only if it was (1) created directly by the state, or (2) administered by individuals responsible to public officials or the general electorate.

On the first prong, the hearing officer found that St. HOPE was founded around 2002 by private individual Kevin Johnson and his foundation — predating any state charter. The subsequent issuance of a charter by the Sacramento City Unified School District (SCUSD) did not transform a privately created entity into one “directly created” by the state, consistent with the Board’s prior charter school decisions in Chicago Mathematics & Science Academy, Pennsylvania Virtual Charter School, and Hyde Leadership Charter School-Brooklyn.

On the second prong, the hearing officer found that SCUSD lacks meaningful appointment and removal authority over St. HOPE’s Board of Directors. The bylaws vest appointment and removal power in existing board members and a private nominating committee controlled by Johnson. SCUSD holds the right to appoint and remove only a single seat on a board of seven to fifteen directors. Relying on Regional Medical Center at Memphis, the hearing officer held that public officials must control a majority of board seats for the second prong to be satisfied. The union’s argument that the MOU’s broad “corrective action” language implicitly granted SCUSD removal power was rejected; the hearing officer noted that charter revocation authority — even if it functionally pressured a board member’s resignation — does not convert a private entity into a public one.

Significant Cases Cited

• NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971): Established the two-prong test for determining whether an entity is a “political subdivision” exempt from NLRB jurisdiction under the NLRA.

• Chicago Mathematics & Science Academy Charter School, Inc., 359 NLRB 455 (2012): Applied the Hawkins County test to charter schools, finding that private creation prior to charter issuance and lack of public appointment authority precluded political subdivision status.

• Pennsylvania Virtual Charter School, 364 NLRB 1118 (2016): Held that a charter school was subject to NLRB jurisdiction and that a chartering authority’s power to revoke a charter does not convert a private employer into a state entity.

• Hyde Leadership Charter School-Brooklyn, 364 NLRB 1137 (2016): Confirmed that the order in which a charter is issued versus a school is incorporated is not dispositive of whether the state “directly created” the entity.

• Regional Medical Center at Memphis, 343 NLRB 346 (2004): Established that public officials must constitute a majority of an entity’s governing board for it to be deemed “administered by” individuals responsible to public officials under the second Hawkins County prong.