NLRB v. American Backflow & Fire Prevention, Inc., 24-2434 (7th Circuit)

The Seventh Circuit denied a company's petition for review and enforced a Board order requiring American Backflow & Fire Prevention to bargain with Plumbers Local 130, finding that the company had defaulted on a settlement agreement it entered into after earlier unfair labor practice charges.

The case traced back to a 2022 settlement in which American Backflow promised to bargain in good faith with the Union and agreed that, if it later breached the agreement, it would waive its right to answer any resulting complaint and could contest only whether a default had occurred. After holding one bargaining session in 2023, the company canceled a second one and withdrew recognition of the Union, citing what it called documentary evidence that the Union had lost majority support.

The Board's General Counsel moved for default judgment, arguing that the company's withdrawal breached its settlement obligations because the decertification evidence it cited either predated the certification year or was tainted by the company's own unfair labor practices. A divided Board panel granted the motion, reasoning that American Backflow had abandoned its stated justification for withdrawing recognition without offering any alternative basis, leaving nothing but a bare denial that could not defeat default judgment.

On review, the court explained that after a union's initial certification year, an employer may rebut the presumption of majority support only by showing the union actually lacked majority support or that the employer had a good-faith doubt grounded in objective evidence. American Backflow never substantiated either theory once it disavowed reliance on the decertification petitions, so its "lawful withdrawal" assertion amounted to nothing more than a conclusory denial. The court found this consistent with Board precedent holding that general denials, without specific facts rebutting a detailed breach allegation, do not warrant a hearing.

The court also rejected the company's due process argument that it was entitled to a hearing under the NLRA, holding that the argument was never raised before the Board and was therefore forfeited under the statute's requirement that objections be urged before the agency first.

Significant Cases Cited

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

• NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990): After certification, a union's majority support presumption becomes rebuttable, and an employer can rebut it by showing actual loss of majority support or a good-faith doubt based on objective evidence.

• Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): Describes the rebuttable presumption of majority support a union holds after its initial certification year.

• Alaris at Hamilton Park Health Care Center, 366 NLRB No. 90 (2018): A general denial that fails to specifically refute a detailed breach allegation is insufficient to defeat a motion for default judgment.

• Williamsville Suburban, LLC, 365 NLRB 114 (2017): An assertion made only "upon information and belief" does not raise a material issue of fact sufficient to avoid default judgment.

Starbucks v. NLRB, 24-60653 (5th Circuit)

A Fifth Circuit panel partly upheld and partly rejected an NLRB finding that Starbucks violated the NLRA through statements made by managers at a Wichita, Kansas store during a 2022 union organizing campaign.

The case centered on a store where a union lost its representation election, after which the union filed unfair labor practice charges. An administrative law judge found that the store manager and assistant manager violated Section 8(a)(1) of the NLRA in several ways: by suggesting employee benefits could be lost if the store unionized, by tying a reduction in store hours to union pressure, by linking a hiring portal closure to the union campaign, and by creating an impression that employees' organizing was under surveillance. The Board adopted these findings, with one member dissenting in part, and imposed a narrow cease-and-desist order along with a remedial notice requirement.

The court agreed with only one part of the Board's decision. It found substantial evidence supported the conclusion that the manager's statement to one employee, made during a benefits meeting, that her maternity-related benefits "could not be guaranteed" if she supported organizing, amounted to an unlawful threat of reprisal because it lacked any reference to the give-and-take nature of collective bargaining. The court enforced the Board's order on that point.

On the remaining claims, the court sided with Starbucks. It found the manager's comment linking shortened store hours to relieving "pressure" from the union did not, in context, amount to a threat, especially given testimony that reduced hours stemmed from documented staffing shortages unrelated to the union. Similarly, the court held that a statement about the hiring portal being paused due to restrictions on discussing unions with applicants was too disconnected from current employees' terms of employment to qualify as coercive. Finally, the court rejected the surveillance-impression finding, concluding the record did not support that all organizing conversations occurred outside the workplace and that the manager's general acknowledgment of awareness of union talk, without more, did not tend to interfere with or coerce employees' protected activity.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Employers may lawfully predict the effects of unionization if the predictions are carefully grounded in objective fact and do not threaten reprisal.

• Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003): Employers retain a protected right to express opinions about unionization so long as statements do not threaten reprisal or force.

• UNF West, Inc. v. NLRB, 844 F.3d 451 (5th Cir. 2016): A statement about reduced wages or benefits is not an unlawful threat if it is framed in the context of the give-and-take of collective bargaining.

• NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975): An employer's mere acknowledgment of awareness of an employee's union activity does not create an unlawful impression of surveillance absent evidence it interfered with or coerced protected activity.

• AllService Plumbing & Maintenance, Inc. v. NLRB, 138 F.4th 889 (5th Cir. 2025): Courts must reject Board findings that fail to grapple with countervailing evidence in the record.

NLRB v. VNS Fed. Servs., LLC, 25-1233 (6th Circuit)

The Sixth Circuit enforced a Board order finding that VNS Federal Services, LLC violated the NLRA when it fired heavy equipment operator Israel Bo Sword after he complained that the company had improperly guaranteed a coworker 40 hours of work per week, a deal Sword believed violated the union's collective bargaining agreement.

Sword worked for VNS at the Portsmouth Gaseous Diffusion Plant in Ohio, where operators were represented by the International Union of Operating Engineers, Local 18, under an agreement called the General Presidents' Project Maintenance Agreement. In February 2020, Sword objected during a team meeting to a supervisor's side deal giving another operator, Greg Dillow, a guaranteed 40-hour week, telling his supervisor that "the contract" did not allow such arrangements. Two days later, after Sword's union representative raised the issue with VNS management, the company permanently laid Sword off, citing "lack of work."

The court applied the Interboro doctrine, under which an employee's honest and reasonable invocation of a right under a collective bargaining agreement counts as protected concerted activity even if the employee turns out to be mistaken about the underlying right. The court explained that this rule, adopted by the Supreme Court in NLRB v. City Disposal Systems, Inc., protects employees from being punished for informally raising contract disputes, since requiring pinpoint accuracy would turn labor agreements into "a trap for the unwary."

Applying that standard, the court found substantial evidence supported the Board's conclusion that Sword's complaint invoked the agreement in good faith, even though the agreement did not actually bar the side deal. The court also upheld the Board's findings that VNS knew of Sword's protected activity, that the timing and statements surrounding his firing showed animus, and that VNS's stated justification of insufficient work was pretextual, given that the company continued assigning overtime and hired a new operator shortly after Sword's termination.

On remedies, VNS argued that reinstatement and backpay were improper given evidence that Sword turned down later job referrals. The court declined to address that argument, following its usual practice of deferring backpay and reinstatement disputes to the Board's separate compliance proceedings rather than resolving them during the enforcement appeal. The court granted the Board's petition to enforce its order in full.

Significant Cases Cited

• NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Held that an employee's honest and reasonable invocation of a right under a collective bargaining agreement is protected concerted activity, regardless of whether the employee was correct that the right was violated.

• NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): Established the burden-shifting framework for evaluating claims that an employer discharged an employee for protected activity.

• Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984): Confirmed the Board's broad discretion to order reinstatement and backpay while deferring precise calculations to compliance proceedings.

• NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950): Held that an employer's partial or claimed compliance with a Board order does not make the order unenforceable.

• Airgas USA, LLC v. NLRB, 916 F.3d 555 (6th Cir. 2019): Applied the Wright Line framework requiring the General Counsel to show protected activity, employer knowledge, and animus before the burden shifts to the employer.

John Henry Foster Minnesota, Inc., 375 NLRB No. 36, 18-RC-306175 (Published Board Decision)

The Board granted an employer's request for review of a regional director's decision on challenged ballots in a representation case, remanding the matter for further proceedings over a dispute about which employees were eligible to vote in a rerun union election.

At issue was whether two employees, Andrew Medrano and Michael Foux, were properly counted as eligible voters. The employer argued they were economic strikers who had actually quit or abandoned their struck jobs before the rerun election, making their challenged ballots invalid. To support that claim, the employer subpoenaed communications between the union and each employee about their work-related activities, but a hearing officer revoked the subpoenas after the union objected that the requests intruded on protected organizing activity, and the regional director upheld that ruling.

The Board majority found the hearing officer should not have revoked the subpoenas outright without first reviewing the documents privately, known as an in-camera inspection, to determine whether they contained information bearing on whether the two employees intended to return to their jobs after the election. The majority pointed to the employer's specific factual basis for its request: Foux had told the employer he planned to seek other work with better insurance and later took a new union-obtained job paying more, while Medrano was a paid union organizer whose duties included filing activity reports with the union and who had briefly ended and then resumed the strike. The majority concluded these facts were enough to justify a limited in-camera review, and remanded the case for that narrower inspection while otherwise denying the request for review.

Member Prouty dissented, arguing the employer's subpoenas were an overly broad fishing expedition into protected union communications and that the hearing officer had reasonably found no basis to believe further documents existed after crediting both employees' hearing testimony that they intended to return to work. Prouty also objected that the majority improperly rewrote the employer's subpoena on its own initiative rather than requiring the employer to justify a properly narrowed request, warning that the ruling would encourage employers to file broad subpoenas hoping for in-camera review on demand.

Significant Cases Cited

• Laguna College of Art and Design, 362 NLRB 965 (2015): Employer interests in compelling disclosure of union organizing strategy are outweighed by employees' interests in keeping their Section 7 activity confidential.

• Ozark Automotive Distributors, Inc. d/b/a O'Reilly Auto Parts v. NLRB, 779 F.3d 576 (D.C. Cir. 2015): A subpoena was improperly quashed on Section 7 grounds where neither the hearing officer nor the Board attempted to balance employee interests against the company's need for the documents.

• Veritas Health Services d/b/a Chino Valley Medical Center, 362 NLRB 283 (2015): An employer violated Section 8(a)(1) by subpoenaing employees for communications with the union and union card materials because it would chill protected activity.

• Burns Security Services, 278 NLRB 565 (1986): A subpoena broadly seeking union records without evidentiary support was quashed as a fishing expedition not entitled to enforcement.

• U.S. v. Zolin, 491 U.S. 554 (1989): A party seeking in-camera review must present evidence sufficient to support a reasonable belief that such review may yield relevant, non-privileged evidence.

International Union, United Automobile Workers, Aerospace & Agricultural Implement Workers of Americ, JD-61-26, 12-CB-360927 (ALJ Decision)

An administrative law judge dismissed a union unfair labor practice complaint accusing a UAW local of unlawfully refusing to sign a written agreement on warehouse production standards at Mack Trucks' Jacksonville distribution facility.

Under the union's collective bargaining agreement with Mack Trucks, the company and Local 2420 were required to meet and try to agree on productivity metrics for warehouse tasks like unloading, picking, and packing. After an outside consultant's proposed numbers proved too aggressive, the two sides negotiated directly and reached agreement in September 2024 on specific line-per-hour targets for six job functions, along with a shared understanding that existing "Mack work rules" would keep applying at the facility. When the company later handed the union a written memorandum reflecting that deal, it also included new language stating that the targets would be subject to an "ongoing process of adjustment" tied to changing operations and efficiency gains, with the parties meeting "as necessary" to revisit them. The union balked and refused to sign, and the company filed unfair labor practice charges under Section 8(b)(3) of the NLRA, claiming the union had already agreed to that language at the bargaining table.

The judge found that the numeric targets themselves, and the continued application of Mack work rules, were solidly established by the testimony and bargaining notes of both sides, meaning the union was bound to sign as to those terms. But the adjustment language was different: the judge found no true "meeting of the minds" on it, since the company's negotiators spoke only vaguely about revisiting targets if efficiencies improved, never showed the union any draft language during bargaining, and the specific wording later appeared unilaterally in the written memorandum two weeks afterward. Because that language would have materially altered the contract's production-standards process, and because the union's local president reasonably believed it could let the company adjust targets unilaterally, the General Counsel failed to prove agreement on that material term. The judge distinguished the company's cited precedents, Chauffeurs, Teamsters, and Helpers Local Union No. 771 (Pennsy Supply) and Windward Teachers Association, noting that in both of those cases the union had actually reviewed and signed off on specific written language before refusing to execute the final document, which did not happen here. Since a valid 8(b)(3) violation requires agreement on all material terms, the judge recommended dismissal of the complaint in its entirety.

Significant Cases Cited

• Chauffeurs, Teamsters, and Helpers Local Union No. 771 (Pennsy Supply, Inc.), 357 NLRB 2203 (2011): A union that reviewed and orally approved specific written contract language, then shook hands to confirm the deal, was bound to sign it despite later second thoughts.

• Windward Teachers Association, NYSUT, AFT, AFL-CIO, 346 NLRB 1148 (2006): A union that reviewed multiple drafts of bonus language without objecting, and presented that same language to its membership for ratification, could not later refuse to sign based on a claimed misunderstanding.

• Sunrise Nursing Home, 325 NLRB 380 (1998): An employer or union's duty to execute a negotiated contract only arises once there is a "meeting of the minds" on all substantive issues and material terms.

• Hempstead Park Nursing Home, 341 NLRB 321 (2004): Whether a "meeting of the minds" exists is judged by the objective terms of the agreement, not the parties' private subjective understandings.

• Kelly's Private Car Service, 289 NLRB 30 (1988): The General Counsel must prove both that the parties reached a meeting of the minds and that the document the respondent refused to sign accurately reflects that agreement.

McAlvain Companies, Inc., 27-RC-389626 (Regional Election Decision)

A regional director for the National Labor Relations Board has ordered an election for a proposed bargaining unit of cement finishers at a Boise, Idaho construction company, rejecting the employer's bid to split the unit between its directly hired workers and those referred through a union hiring hall.

The petitioner, a local affiliate of the Operative Plasterers and Cement Masons International Association, sought to represent all cement finisher foremen, general foremen, journeypersons, and apprentices working for McAlvain Companies, Inc. The company agreed the job classifications belonged together but argued that workers it hired directly should be kept separate from workers referred by the union, because the two groups do not share a sufficient community of interest.

The dispute centered on the company's work for a large semiconductor manufacturing project near Boise, where the employer operates under a project labor agreement requiring it to use union-referred cement finishers on a one-to-one ratio with its own hires. That agreement created real differences between the two groups, including separate pay scales, benefits, grievance procedures, and hiring processes. On the company's other projects, which do not fall under the labor agreement, workers are cross-trained across multiple trades and no union-referred employees are used at all.

The regional director found that once on the job site, the distinctions largely faded. Both groups of cement finishers are hired through similar screening and orientation processes, work side by side performing identical tasks, use the same tools, report to the same supervisors, and are subject to the same site rules, hours, and safety requirements. Applying the Board's community-of-interest test, which weighs shared supervision, job functions, skills, contact between workers, and terms of employment, the director concluded that the main difference between the two groups was simply how their employment began, not how they actually work. Citing prior Board decisions involving temporary and jointly employed workers, the director noted that differences in wages and benefits alone do not defeat a finding of shared community of interest when employees otherwise work alongside each other under common supervision.

Based on this analysis, the director certified the union's proposed unit as appropriate and directed a secret-ballot election, to be held in mid-September, allowing the roughly 29 employees in the unit to vote on whether they wish to be represented by the union.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): A petitioned-for unit need not be the most appropriate unit, only an appropriate one, and must share a community of interest, be readily identifiable, and be sufficiently distinct.

• NLRB v. Action Automotive, 469 U.S. 490 (1985): The Board's unit determinations focus on whether employees share a community of interest.

• Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Sets out the community-of-interest factors, including department structure, skills, job functions, integration, contact, interchange, terms of employment, and supervision.

• Re MJM Studios of New York, Inc., 336 NLRB 1255 (2001): Temporary employees working side by side with regular employees under the same supervision share a sufficient community of interest for inclusion in the same unit, despite differing wages and benefits.

• Interstate Warehousing of Ohio, LLC, 333 NLRB 682 (2001): Temporary employees who work side by side and are largely interchangeable with permanent employees, sharing job classifications, functions, hours, and supervision, belong in the same bargaining unit.

Seattle Roots Community Health, 19-RD-391788 (Regional Election Decision)

A regional director has directed elections at Seattle Roots Community Health, a Seattle nonprofit that operates medical, behavioral health, and dental clinics, after an employee filed a petition to decertify SEIU Healthcare 1199NW as the bargaining representative for a mixed unit of professional and nonprofessional staff.

The decision resolved two disputes between the employer and the petitioner, since the union was barred from participating after missing its deadline to file a statement of position. The first concerned whether the roughly 135-person bargaining unit, which combines professional employees like nurses and behavioral health counselors with nonprofessional employees like medical assistants and billing specialists, required a special self-determination vote for the professionals. The employer argued this so-called Sonotone election was unnecessary because the professional employees had already voted once before, in an earlier organizing campaign, to be grouped with nonprofessional staff. The regional director rejected that argument, explaining that the NLRA requires a fresh vote of professional employees on inclusion each time a mixed unit faces an election, regardless of how they voted previously, and that the parties cannot bargain that right away by stipulation.

The second dispute involved which per diem employees should be allowed to vote. The employer wanted all per diem workers included without restriction, but the regional director applied the standard Davison-Paxon formula, which limits eligibility to per diem employees who averaged at least four hours of work per week over the prior quarter, finding no special circumstances that would justify departing from that standard.

The regional director also set the mechanics of the vote: a mixed mail and in-person election, with remote employees voting by mail and everyone else voting in person at the two clinic locations. Professional employees will answer two questions on their ballots, first whether they wish to remain grouped with nonprofessional employees, and second whether they want SEIU Healthcare 1199NW to represent them. Depending on how the professionals vote on the first question, the final bargaining unit will either remain a single combined unit or split into two separate units, professional and nonprofessional, each voting independently on representation.

Significant Cases Cited

• Sonotone Corp., 90 NLRB 1236 (1950): Established the self-determination election procedure required before professional employees can be grouped with nonprofessional employees in a single bargaining unit.

• American Medical Response, Inc., 344 NLRB 1406 (2005): Held that a new Sonotone election is required each time professionals and nonprofessionals may be combined in a unit, even if professionals previously voted for inclusion, and that parties cannot stipulate away that right.

• Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999): Confirmed that stipulations between parties cannot override the statutory requirement that professional employees separately decide on inclusion with nonprofessionals.

• Davison-Paxon Company, 185 NLRB 21 (1970): Established the formula used to determine voting eligibility for irregularly scheduled employees based on averaging at least four hours of work per week over the preceding quarter.

• Trump Taj Mahal Casino, 306 NLRB 294 (1992): Articulated the Board's goal of maximizing employee enfranchisement in election eligibility formulas while excluding those without a genuine continuing interest in employment terms.

Siren Retail Corp. V. NLRB, 24-3168 (2nd Circuit)

A federal appeals court sided with Starbucks in a dispute over dress code rules the company applied at its Reserve Roastery store in New York City, rejecting a labor board finding that the company's policies on union pins and shirts illegally interfered with workers' organizing rights.

The case grew out of a 2022 incident in which several employees at the Roastery wore black t-shirts bearing the Workers United union logo over their aprons during a national push to negotiate the chain's first union contract. A manager told the employees the shirts violated the store's dress code and asked them to change. Workers United filed an unfair labor practice charge, and the Board's general counsel went after three separate policies: a rule limiting employees to one union pin, a rule barring pins or buttons on political, religious, or personal issues, and a rule requiring that any writing on shirts be pre-approved by the company.

An administrative law judge found the one-pin rule lawful, reasoning it was essentially the same policy the Second Circuit had already upheld in Starbucks I. But the judge found the other two policies unlawful, applying the Board's own precedent in Tesla, Inc., which presumes that uniform policies limiting union insignia are illegal unless the employer narrowly tailors them to specific business needs. The Board itself later went further, reversing the judge on the one-pin issue too and finding all three policies unlawful.

The Second Circuit disagreed on both fronts. On the one-pin policy, the court found the facts indistinguishable from Starbucks I, in which it had already ruled that limiting employees to a single union button did not violate the NLRA, given Starbucks' interest in avoiding message clutter on its uniforms. The court found the differences the Board pointed to, such as the more relaxed "steampunk" dress code at the Roastery versus the plain black-and-white look at ordinary stores, legally irrelevant to that reasoning.

On the other two policies, the court rejected the Board's Tesla framework outright, agreeing with a prior Fifth Circuit ruling that had also thrown out Tesla. The panel held that Tesla's presumption against nearly all workplace dress rules, combined with its requirement that employers narrowly tailor policies to survive scrutiny, misreads the Supreme Court's decision in Republic Aviation Corp. v. NLRB. That decision, the court explained, requires a genuine balancing of employees' organizing rights against employers' interests in workplace discipline and business image, not a strict-scrutiny-style test that effectively assumes employer policies are unlawful. The court also concluded it owed no deference to the Board's reading of Supreme Court precedent under the framework set out in Loper Bright Enterprises v. Raimondo, which eliminated the deference courts previously gave to agency legal interpretations, while noting that factual findings by the Board still receive deference if backed by substantial evidence.

The court denied enforcement of the Board's order and sent the case back to the agency, directing it to reevaluate the pin-issue and shirt-logo policies under a properly balanced standard that weighs the extent of any restriction on workers' rights, whether the policy is neutral and consistently enforced, and the surrounding circumstances. The court also flagged that the Board's remedial order appeared broader than its findings justified and asked the agency to narrow it accordingly on remand.

Significant Cases Cited

• Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established that employees have a right under Section 7 to wear union insignia at work, subject to an employer's ability to show special circumstances justifying restrictions, requiring a balance between employee organizing rights and employer business interests.

• NLRB v. Starbucks Corp. (Starbucks I), 679 F.3d 70 (2d Cir. 2012): Upheld a Starbucks policy limiting employees to one union pin, finding the company's interest in avoiding message clutter sufficient to justify the restriction.

• Tesla, Inc., 371 NLRB No. 131 (2022): Set a Board standard presuming that employer uniform policies restricting union insignia are unlawful unless narrowly tailored to specific special circumstances.

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron deference, directing courts to exercise independent judgment on questions of law rather than deferring to agency interpretations of ambiguous statutes.

• Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019): Applied a balancing test weighing the impact on employees' NLRA rights against an employer's legitimate business justifications for dress code policies, later overruled by Tesla.

Real Entertainment – Philadelphia, LLC, a Wholly Owned Subsidiary of LiveConnections.org, D/B/a Worl, 374 NLRB No. 34, 04-CA-370494 (Published Board Decision)

The National Labor Relations Board issued a default judgment against Real Entertainment—Philadelphia, LLC, the entity operating the World Café Live music venue in Philadelphia, after the company failed to respond to a series of unfair labor practice complaints while operating as a debtor-in-possession in bankruptcy.

The Board found that the company committed a broad range of violations tied to two organizing efforts. In June 2025, eight front-of-house employees walked out and protested outside the venue over wages, treatment by management, and job security. The company fired all of them the next day, along with employee Elizabeth Grecco, whom it believed had participated even though she had not. Management also threatened the workers with a lawsuit over the walkout.

A second wave of activity followed in the fall of 2025, when employees raised complaints about late and inaccurate wage payments and filed wage theft complaints with the City of Philadelphia. The company responded by cutting several employees from the work schedule and ultimately terminating or discharging four of them, conduct the Board found was also driven by their support for UNITE HERE Local 274, which the front-of-house staff had voluntarily recognized as their bargaining representative that July.

The Board further found that the company unlawfully withdrew recognition from Local 274 in September 2025 and refused to bargain with it, and separately refused to bargain with International Alliance of Theatrical Stage Employees, Local 8, which represented the venue's production staff. The company also made unilateral changes to production employees' pay structure and hours-reporting requirements without bargaining with Local 8, including switching a salaried employee to hourly pay, requiring use of a new timekeeping system, cutting off a travel and phone stipend, and adding a supervisor approval step for hours before payroll.

Because the company never answered the complaints or offered any justification, despite reminders that a default judgment motion would follow, the Board treated all the allegations as admitted. It ordered reinstatement and full backpay, including compensation for related financial harms and adverse tax consequences, for the thirteen affected employees. The Board also ordered the company to recognize and bargain with both unions on request, rescind the unilateral changes made to production employees' terms of employment, remove references to the unlawful discharges from personnel files, and post and read aloud a notice to employees describing their rights.

Significant Cases Cited

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

• Cardinal Services, Inc., 295 NLRB 933 (1989): Bankruptcy proceedings do not deprive the Board of jurisdiction to process an unfair labor practice case to final disposition.

• F.W. Woolworth Co., 90 NLRB 289 (1950): Established the standard method for computing backpay owed to unlawfully discharged employees.

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

• AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016): Requires employers to compensate employees for adverse tax consequences of receiving lump-sum backpay awards.

Boardroom Styling Lounge - Houston/Galleria, JD-60-26, 16-CA-373437 (ALJ Decision)

An administrative law judge has ordered a Houston hair salon to reinstate and compensate a stylist who was fired after refusing to sign confidentiality and non-solicitation agreements, finding the agreements themselves unlawfully restricted employee rights.

The case arose after HB Boardroom Galleria hired Elizabeth Villegas as a stylist in August 2025. About three weeks later, the company's area manager told Villegas by text that she and other employees had to sign two documents as a condition of employment: a "Confidentiality of Salary and Benefit Agreement" barring employees from discussing pay and benefits with each other, and a "Confidentiality, Non-Compete & Non-Solicitation Agreement" that prohibited employees, for two years after leaving the company, from soliciting or inducing coworkers to leave their jobs. The company told Villegas it would not modify the agreements. When she refused to sign, she was fired.

The company did not contest the allegations. At an August 2026 hearing, its counsel admitted every paragraph of the amended complaint, and General Counsel moved for summary judgment, which the company did not oppose. Based on those admissions, the judge found that maintaining both agreements interfered with employees' rights under Section 7 of the NLRA, that telling Villegas the agreements were a non-negotiable condition of employment was similarly unlawful, and that firing her for refusing to sign violated Section 8(a)(1) of the Act.

As a remedy, the judge ordered the company to offer Villegas reinstatement to her former job, make her whole for lost earnings and other financial harms including job-search expenses, cover any adverse tax consequences from a lump-sum backpay award, and remove references to the unlawful discharge from her personnel file. The company must also rescind the overbroad provisions in its confidentiality and non-compete agreements, notify all current and former employees that the language will no longer be enforced, and post a notice describing employees' rights at its Houston Galleria location.

Significant Cases Cited

• F.W. Woolworth Co., 90 NLRB 289 (1950): Establishes the standard method for calculating backpay owed to unlawfully discharged employees.

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

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

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's standard remedy to include compensation for other direct or foreseeable pecuniary harms beyond lost wages resulting from unlawful discharge.

• AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016): Requires employers to compensate discharged employees for adverse tax consequences of receiving backpay as a lump sum.

KGW-Tv, 19-RC-376874 (Unpublished Board Decision)

The Board declined to review a regional director's decision directing an election in a case involving IBEW Local 48's petition to add several classifications to an existing bargaining unit at a television station. The petitioned-for classifications, including producers, digital content producers, and content coordinators, share a community of interest with the existing unit of directors and broadcast technicians, the Board found, because they work in the same department under common supervision, have regular work-related contact, and share basic terms of employment such as hourly pay and workplace rules.

The Board also found functional integration between the groups, noting that directors code broadcasts according to producers' instructions and that broadcast technicians provide technical support across all the petitioned-for classifications. While the Board clarified that interchange between employee groups is not a "critical" factor in this analysis, contrary to a suggestion in the regional director's decision, it agreed that the interchange factor, along with skills, training, and job duties, weighed against holding a separate self-determination election. On balance, the Board concluded these factors were outweighed by the shared community of interest.

Finally, the Board upheld the regional director's finding that the petitioned-for producers are not statutory supervisors, agreeing they lack authority to assign or responsibly direct other employees. Because of that conclusion, the Board did not need to decide whether the producers exercise independent judgment in preparing broadcast rundowns.

Significant Cases Cited

• Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Set out the community-of-interest factors used in self-determination election analysis, including that interchange is not a critical factor.

• Public Service Co. of Colorado, 365 NLRB 1017 (2017): Held that differences in terms and conditions of employment stemming from a collective-bargaining agreement are entitled to less weight in the self-determination context.

• Transerv Systems, Inc., 311 NLRB 766 (1993): Found a high degree of functional integration where two employee groups had to work together to complete most deliveries.

• Publix Super Markets, Inc., 343 NLRB 1023 (2004): Found functional integration where certain employees performed support functions essential to all operations at a facility.

• Peacock Productions of NBC Universal Media, LLC, 364 NLRB 1523 (2016): Addressed the standard for determining whether employees have authority to assign or responsibly direct work as statutory supervisors.

McDowell County Commission on Aging, Inc., 375 NLRB No. 33, 09-RD-343950 (Published Board Decision)

The Board reviewed a Regional Director's decision to dismiss a decertification petition after related unfair labor practice charges involving the same employer were settled. A divided panel reversed the dismissal and ordered the impounded ballots opened and counted.

The case arose after a union's contract with an in-home care employer expired and a bargaining-unit employee filed a petition to decertify the union. While the petition was pending, the union filed unfair labor practice charges alleging the employer had improperly assisted and solicited the decertification effort. The election was held and the ballots were impounded pending resolution of those charges. The employer and union later settled the charges, without any admission of wrongdoing, and the settlement required the Regional Director to dismiss the petition. The petitioner was not part of that settlement. The Regional Director then dismissed the petition, citing the settled allegations as having tainted it.

The Board majority found this was error. Citing TruServ Corp., the majority explained that a settlement of unfair labor practice charges without an admission of liability does not, by itself, provide substantial evidence that the employer actually engaged in misconduct, and therefore cannot alone justify dismissing a decertification petition. The majority acknowledged that a petition can still be dismissed if a Regional Director makes an actual administrative finding that the employer instigated the petition or solicited the showing of interest, but concluded the dismissal letter here did nothing more than recite the settled complaint allegations without articulating such a finding or explaining why the conduct described amounted to the kind of direct employer involvement required under Canter's Fairfax Restaurant. The majority distinguished the employer's conduct from cases like Kauai Veterans Express Co., AIM Aerospace Sumner, and SFO Good-Nite Inn, finding nothing comparably direct alleged here. It granted review, reversed the dismissal, and remanded for the ballots to be opened and counted.

Member Prouty dissented, arguing that the Regional Director's letter did reflect an administrative finding, not just a recitation of settled charges, that the employer directly solicited employee support for the petition, including by polling employees at a mandatory meeting and directing them to sign decertification materials. In his view, this fell squarely within TruServ's exception for petitions tainted by direct employer solicitation, regardless of the parallel settlement, and the dismissal should have been upheld. He further argued that TruServ itself was wrongly decided because it undermines the stabilizing function of settlements and invites tainted petitions to proceed, and he would have denied review entirely.

Significant Cases Cited

• TruServ Corp., 349 NLRB 227 (2007): An employer's settlement of unfair labor practice charges without an admission of wrongdoing does not by itself require dismissal of a decertification petition, but a petition still must be dismissed if the Regional Director finds it was instigated by the employer or that the showing of interest was solicited by the employer.

• Canter's Fairfax Restaurant, 309 NLRB 883 (1992): A Regional Director may dismiss a decertification petition based on an administrative investigation revealing direct employer involvement with the petition, such as supervisors circulating it.

• Kauai Veterans Express Co., 369 NLRB No. 59 (2020): An employer's polling of employees about their union support through a written memorandum constituted improper solicitation and direct involvement that tainted a subsequent decertification petition.

• AIM Aerospace Sumner, 367 NLRB No. 148 (2019): A decertification petition is tainted when an employer directly instigates or propels the decertification effort by actively soliciting, encouraging, or assisting in it.

• SFO Good-Nite Inn, 357 NLRB 79 (2011): Managers who directly threatened employees with reduced hours or discharge to coerce them into signing a decertification petition tainted the petition through direct employer involvement.

O'Neill Asset Management, JD-59-26, 07-CA-352673 (ALJ Decision)

An administrative law judge dismissed all allegations against O'Neill Asset Management, LLC, a financial services firm in Grand Rapids, Michigan, finding it did not violate the NLRA.

The case arose from a heated staff meeting on May 23, 2024, where an employee, Bridgett Hendrick, confronted the company's president, Andrew O'Neill, about his treatment of staff. Other employees, including Shay Barber, voiced agreement. O'Neill cut the meeting short, citing arriving clients, and later told Hendrick her concerns would not be discussed at another staff meeting. The General Counsel argued this amounted to an unlawful rule barring employees from discussing workplace issues with each other. The judge disagreed, finding no evidence O'Neill forbade employees from talking to each other or to management as a group, only that he declined to continue the discussion at that particular meeting.

The judge also addressed Barber's discharge. On August 23, 2024, Barber, in his own words, complained to a coworker, Benjamin Dykstra, that O'Neill was greedy and untrustworthy and pitted employees against each other. Dykstra, who had only started three days earlier and had not invited the conversation, reported feeling uncomfortable and told O'Neill about it. After reviewing security footage, O'Neill decided to fire Barber, and the termination took place on August 26, ending in a confrontation where O'Neill challenged Barber to a fight and police were called. The judge found Barber's remarks to Dykstra were not protected concerted activity, since Barber was not enlisting Dykstra's support for any collective effort to change working conditions and Dykstra had shown no interest in joining such an effort. The judge characterized the conversation as "mere griping," which the NLRA does not protect, and distinguished cases cited by the General Counsel because those involved employees actively making common cause with each other.

Finally, the judge rejected a challenge to the confidentiality provisions in Respondent's employment agreements, which restricted disclosure of information such as business strategies, customer lists, and other company data. Applying the Board's Stericycle framework, the judge found no evidence in the record that an employee could reasonably interpret the rules as coercive of Section 7 rights, so the General Counsel failed to meet its initial burden.

Significant Cases Cited

• Myers Industries, 268 NLRB 493 (1984): Defined concerted activity as conduct engaged in with or on the authority of other employees, not solely on behalf of the individual employee.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework requiring the General Counsel to show protected activity was a motivating factor before the employer must prove it would have taken the same action regardless.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Set the current standard for evaluating whether facially neutral workplace rules unlawfully chill employees' Section 7 rights.

• Component Bar Products, Inc., 364 NLRB 1901 (2016): Found conduct protected as inherently concerted where an employee warned a coworker that his job was in jeopardy.

• Parexel International, LLC, 356 NLRB 516 (2011): Recognized that discharging an employee to preemptively prevent protected activity can itself violate the Act.

HH Sub I, LLC D/B/a Tree of Life Dispensary, 28-RC-353928 (Regional Election Decision)

A regional director has dismissed a union election petition after finding that the employee who led the organizing drive was actually a supervisor, meaning the authorization cards he collected could not count toward the showing of interest needed to hold a vote.

The case involved a cannabis dispensary in Las Vegas, where United Food and Commercial Workers International Union, Local 711 sought to represent Customer Care, Delivery/Fulfillment, Inventory Processor, and Packager employees. The employer argued that Customer Care Leads, including the employee who spearheaded the organizing campaign, were supervisors under the NLRA and that their involvement had tainted the union's showing of interest. The parties initially agreed to hold the challenged Customer Care Leads' ballots pending a determination on their status, but the election was postponed after an unfair labor practice charge was filed, and the regional office used that time to investigate the supervisory question.

The investigation found that the Customer Care Lead who initiated contact with the union, organized meetings, and personally solicited about 64% of the signed authorization cards exercised supervisory authority over other employees. Evidence showed Customer Care Leads assigned work, trained new hires, enforced workplace rules, and directed employees' day-to-day tasks while being held accountable if the work wasn't done properly. They also recommended and issued discipline without independent investigation by store management, including in incidents involving insubordination and a workplace fight, and management largely deferred to their assessments. Additional secondary evidence included higher pay, attendance at management meetings, access to secure areas and pricing systems, and the fact that most employees interviewed considered the Customer Care Leads their supervisors.

Applying Board precedent, the regional director concluded that because a supervisor directly solicited a substantial portion of the authorization cards, those cards had to be excluded from the showing of interest under the Board's bright-line rule, regardless of whether the union knew of the employee's supervisory status. With those cards removed, the union's showing of interest fell below the required threshold, and the petition for an election was dismissed.

Significant Cases Cited

• NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994): Set out the traditional three-part test for determining whether an individual qualifies as a supervisor under Section 2(11).

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established that the party asserting supervisory status bears the burden of proof and clarified the meanings of "assign," "responsibly direct," and "independent judgment."

• Dejana Industries, Inc., 336 NLRB 1202 (2001): Established the bright-line rule requiring exclusion of all authorization cards directly solicited by a supervisor from a union's showing of interest.

• Madison Square Garden, 350 NLRB 117 (2007): Held that a supervisor's authority to effectively recommend discipline can coercively influence employees to sign authorization cards.

• Starwood Hotels & Resorts Worldwide, Inc., 350 NLRB 1114 (2007): Found supervisory status where a putative supervisor's disciplinary recommendations were followed by management without independent investigation.

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

The Board denied an employer's request for review of a Regional Director's decision directing a self-determination election for emergency department technicians at a hospital.

The employer first argued that the Regional Director had erred in allowing the union to withdraw an earlier petition in a related case, but the Board found this argument barred because the employer had already raised and lost that same issue in a prior request for review, which the Board's rules prohibit repeating.

The employer also argued that the union had failed to meet its evidentiary burden to justify a self-determination election. The Board rejected this framing, explaining that because the case did not involve a presumptively appropriate bargaining unit, no such burden existed. Instead, the Regional Director only needed "some record evidence" supporting the election, a standard drawn from DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo. The Board agreed that the unrebutted evidence presented at the hearing showed the petitioned-for technicians formed a distinct, identifiable group sharing a community of interest with classifications already in the existing unit, citing factors like job duties, supervision, department structure, functional integration, contact, working conditions, and bargaining history, consistent with the standard set out in Warner Lambert, Co.

Finally, the employer tried to argue on review that the technicians lacked a community of interest with employees at other facilities in the existing unit, a different claim from the one about shared classifications. The Board found this argument had not been properly raised before the Regional Director, either in the employer's statement of position or at the hearing, and so could not be raised for the first time on review. The Board also noted that self-determination elections for a single classification at one facility have been approved before when, as here, a multi-location labor agreement showed the classification was included in the broader unit on a facility-by-facility basis, referencing NLRB v. Am. Printers & Lithographers.

Significant Cases Cited

• DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo, 375 NLRB No. 2 (2026): Held that in unit determinations not involving a presumptively appropriate unit, the Board does not impose an evidentiary burden on the petitioning union but requires the Regional Director to rely on some record evidence.

• Warner Lambert, Co., 298 NLRB 993 (1990): Established that a petitioned-for voting group must be a distinct, identifiable segment sharing a community of interest to support a self-determination election.

• NLRB v. Am. Printers & Lithographers, 820 F.2d 878 (7th Cir. 1987): Approved self-determination elections for a specific classification at a single facility where a multi-location collective-bargaining agreement showed that classification had been included in the broader unit on a facility-by-facility basis.

Reed Institute D/B/a Reed College, 19-RC-378745 (Unpublished Board Decision)

The Board declined to review a regional director's decision finding that Reed College had not shown its "Night Lead" security officer role qualifies as a supervisory position under the NLRA, allowing an election to proceed among the college's campus security officers.

The Board explained that establishing supervisory status under Section 2(11) requires only proof that a person possesses the authority to perform a supervisory function, not evidence that the authority was actually used. To the extent the regional director's decision could be read as demanding proof that the Night Lead had actually exercised supervisory authority, the Board said it was not relying on that reasoning. It also found it unnecessary to address the regional director's separate observation that the role rotates among officers on a shift-by-shift basis, since the college had already failed to establish any of the primary indicators of supervisory authority.

Member Prouty wrote separately to endorse the rotating-shift point as an independent, sufficient problem with the college's position. He noted that a party asserting supervisory status must show that the person spends a regular and substantial portion of their time performing supervisory duties, and that Reed College had not offered evidence that officers filling the Night Lead role met that threshold.

Significant Cases Cited

• Avante at Wilson, Inc., 348 NLRB 1056 (2006): Holds that Section 2(11) requires only possession of authority to perform a supervisory function, not its actual exercise.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Holds that a party asserting supervisory status must prove that the individual spends a regular and substantial portion of their work time performing supervisory functions.

Doctors Hospital of Manteca, Inc. D/B/a Doctors Hospital of Manteca, 32-RC-376933 (Unpublished Board Decision)

The Board denied the employer's request for review of a Regional Director's decision directing a self-determination election for environmental services employees seeking to join an existing certified unit of CNAs at a hospital.

The Board rejected the employer's argument that the Regional Director lacked authority to hold a pre-election hearing or process the petition without a Board quorum, citing its recent decision in Satellite Healthcare (Santa Rosa). It also found the employer was barred from re-raising its objection to the union's withdrawal of a prior petition, since that issue had already been raised and rejected in an earlier request for review, and the Board's rules bar repetitive requests.

On the merits, the Board held that because the case did not involve a presumptively appropriate unit, the union bore no formal evidentiary burden. Instead, the Regional Director only needed "some record evidence" supporting the self-determination election, a standard drawn from DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo. The Board agreed that the petitioned-for EVS employees were a distinct, identifiable segment sharing a community of interest with the CNAs, since both groups qualify as nonprofessional employees under the Board's Health Care Rule, consistent with St. Vincent Charity Medical Center.

The Board also declined to consider the employer's argument that the EVS employees lacked a community of interest with employees at other facilities in the existing multi-facility unit, finding this argument had not been properly raised before the Regional Director. The Board noted that even if properly raised, precedent from NLRB v. Am. Printers & Lithographers supported allowing a self-determination election for a single classification at one facility where the collective-bargaining agreement showed the classification was included in the multi-facility unit on a facility-by-facility basis.

Finally, the Board upheld the Regional Director's decision to let a putative statutory supervisor vote subject to challenge, consistent with the Board's election rules. One member noted he was applying that rule as existing law without opining on whether it was correctly adopted.

Significant Cases Cited

• DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo, 375 NLRB No. 2 (2026): Held that the Board does not impose a formal evidentiary burden on a petitioning union to prove a petitioned-for unit is appropriate, requiring only "some" record evidence supporting the Regional Director's unit determination.

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Applied the Board's Health Care Rulemaking classifications to determine whether employees in a petitioned-for voting group share a community of interest with employees in a preexisting unit.

• NLRB v. Am. Printers & Lithographers, 820 F.2d 878 (7th Cir. 1987): Approved self-determination elections for a specific classification at a single facility where a collective-bargaining agreement showed that classification was included in a multi-facility unit on a facility-by-facility basis.

• Warner Lambert, Co., 298 NLRB 993 (1990): Addressed the standard for determining whether a petitioned-for voting group constitutes a distinct, identifiable segment appropriate for a self-determination election.

• Satellite Healthcare (Santa Rosa), 374 NLRB No. 25 (2026): Established that a Regional Director retains authority to hold pre-election hearings and process representation petitions even absent a Board quorum.

Altorfer Inc., 375 NLRB No. 32, 25-CA-327736 (Published Board Decision)

The Board affirmed an administrative law judge's finding that a construction equipment repair company violated the NLRA when a supervisor interrogated an employee about his ties to a rival union, but agreed that the company lawfully terminated the same employee for unrelated performance issues.

The case involved a field service technician who worked for Altorfer Inc. while remaining a member of the International Union of Operating Engineers, Local 150, even though the bargaining unit at his location was represented by Local 399. In August 2023, a Local 150 representative visited the employee's job site, and a coworker later reported the visit to management. In an October 2023 meeting that began as a discussion about scheduling communication problems, the employee's supervisor asked him whether he had been in contact with other unions on company time, why he was still involved with Local 150 rather than Local 399, and whether he had taken steps to withdraw from Local 150.

The judge found that this line of questioning amounted to unlawful interrogation under Section 8(a)(1), reasoning that it came from the employee's direct supervisor in the presence of the store manager, was aimed at pressuring the employee to sever ties with Local 150, and occurred without meaningful support from a union steward familiar with the situation. Applying the Board's standard totality of the circumstances test, the judge concluded the questioning had a reasonable tendency to coerce the employee in exercising his organizing rights.

On the termination claim, the General Counsel argued the company fired the employee days later because of his Local 150 activity. The judge found that the General Counsel made an initial showing of discrimination given the company's knowledge of the union activity and the animus reflected in the unlawful interrogation, but concluded the company proved it would have terminated the employee anyway. The employee had ongoing friction with his supervisor over job assignments dating back to before the company learned of his Local 150 involvement, and the timing of his discharge coincided with the scheduled end of his 120-day probationary period rather than with any protected activity. The judge rejected arguments that the company's stated reasons were pretextual, noting there was no established practice of issuing formal discipline notices to probationary employees before termination.

The Board adopted the judge's rulings and conclusions with minor modifications to the recommended order and notice language, including broadening the order to prohibit coercive interrogation about the union activities of other employees as well as the interrogated employee himself.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for evaluating claims that an employer took adverse action against an employee motivated by union or protected activity.

• Rossmore House, 269 NLRB 1176 (1984): Establishes the totality of the circumstances test for determining whether an employer's questioning of an employee about union activity constitutes unlawful interrogation.

• Garten Trucking LC, 373 NLRB No. 94 (2024): Reaffirms the specific factors used to assess whether an interrogation was coercive, including the identity of the questioner and the nature of the information sought.

• Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Holds that the test for whether a statement violates Section 8(a)(1) is whether it has a reasonable tendency to coerce employees, regardless of intent.

• Electrolux Home Products, 368 NLRB No. 34 (2019): Explains that a pretextual justification for an adverse action can support, but does not compel, an inference of discriminatory motive.

BR Management Services, JD(SF)-16-26, 19-CA-352007 (ALJ Decision)

An administrative law judge has ruled that a military food service contractor unlawfully suspended and fired a cook after she asked for a union representative during a confrontation with her supervisor.

Nicole Benjamin worked as a baker and cook for B.R. Management Services at the Olympic Dining Facility on Joint Base Lewis-McChord, a facility the company staffed under a subcontract with Global Connections to Employment. In October 2024, her supervisor and the company's co-owner, Dominica Quitevis, confronted her at work over a text exchange about dirty ovens. When Quitevis insisted on speaking with her immediately, Benjamin said she was uncomfortable continuing the conversation without a union representative present because of Quitevis's aggressive manner. Quitevis sent Benjamin home, and days later, during a call with a union representative, fired her for insubordination, citing among other things her refusal to talk without a union representative.

The judge found that Benjamin had a reasonable, objectively supported belief that the discussion with Quitevis could lead to discipline, entitling her to request a union representative under the Weingarten line of cases. Because Quitevis herself said during the October 8 call that Benjamin's termination was based in part on her insistence on having a representative present, the judge found direct evidence of unlawful motive. B.R. Management's owner testified that Quitevis merely wanted to relay information rather than discipline Benjamin, but the judge held that the company's subjective intent does not matter under the objective Weingarten standard, and the company offered no evidence that it would have fired Benjamin regardless of her protected conduct.

The judge concluded that the suspension and discharge violated Sections 8(a)(1) and (3) of the NLRA and ordered the company to reinstate Benjamin, make her whole for lost pay and other financial harms, remove references to the unlawful actions from her file, and post a notice to employees.

Significant Cases Cited

• NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Established that Section 7 of the NLRA guarantees an employee's right to have a union representative present at an investigatory interview when the employee reasonably believes discipline could result.

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

• Wal-Mart Stores, Inc., 351 NLRB 130 (2007): Held that the General Counsel must first show protected activity was a motivating factor in the employer's action before the burden shifts to the employer.

• Verizon California, Inc., 364 NLRB 1008 (2016): Held that a supervisor's subjective intent is irrelevant to the Weingarten analysis, which turns instead on objective evidence of how a reasonable employee would perceive the situation.

• Wendt Corp. v. NLRB, 26 F.4th 1002 (D.C. Cir. 2022): Found that an employee reasonably believed he might face discipline based on factors like being questioned shortly after an incident and a supervisor's hostile demeanor.

International Longshoremen's Association, Local 1526 (Florida Stevedoring), JD-58-26, 12-CB-362739 (ALJ Decision)

An administrative law judge found that a longshore union violated its duty of fair representation when it disciplined a hiring hall member without giving him proper notice of the charges against him.

Melvin Bray Jr., a longshoreman without seniority at Port Everglades, was involved in two workplace incidents in December 2024 and January 2025. In the first, his luggage cart bumped the union president, Jonnie Dixon, while Dixon was speaking with other workers, and Bray reacted by cursing as he walked away. In the second, Bray got into a heated exchange with a coworker's brother after raising concerns about a leaking cargo box, with both men making threatening remarks. Grievances were filed against Bray over both incidents, but he was never given written notice of the charges or the specific union rules he allegedly violated, as required by the union's bylaws. He learned of the first charge only when he showed up to the disciplinary hearing before the Labor Relations Committee, and he was not represented at that hearing.

The committee suspended Bray from the hiring hall for 90 days combined and ordered him to complete 52 hours of anger management classes, a penalty far more severe than the union had imposed on members in comparable cases, where offenders typically received 14- to 30-day suspensions and 16-hour classes accompanied by proper written notice.

The judge concluded that the union's failure to timely notify Bray of the charges, its reliance on uncorroborated hearsay for one of the grievances, and the resulting deprivation of Bray's ability to defend himself amounted to arbitrary, discriminatory, and bad-faith conduct in violation of Section 8(b)(1)(A) of the NLRA. The judge ordered the union to expunge Bray's suspension from its records, make him whole for lost wages and benefits with interest, and post a notice to members describing the violation.

Significant Cases Cited

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

• Breininger v. Sheet Metal Workers Intern. Ass'n Local Union No. 6, 493 U.S. 67 (1989): Recognized that a union's duty of fair representation is heightened in the operation of an exclusive hiring hall.

• Operating Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB 681 (1973): Held that when a union prevents an employee from being hired, a presumption arises that its action encourages union membership, unless shown necessary to effective representation.

• Stage Employees IATSE Local 720 (AVW Audio Visual), 332 NLRB 1 (2000): Held that arbitrary conduct requires more than a showing of poor judgment; the union's actions must fall outside a wide range of reasonableness to the point of irrationality.

• Boilermakers Local 374 (Combustion Engineering), 284 NLRB 1382 (1987): Required unions operating hiring halls to do so in a fair and impartial manner.

Go-Mart, Inc., JD-57-26, 09-CA-365946 (ALJ Decision)

An administrative law judge ruled that a West Virginia gas station and convenience store chain, Go-Mart, unlawfully disciplined a deli clerk for discussing her wages with coworkers, then effectively pushed her out of her job in retaliation.

The clerk, Melissa Saylor, had been juggling a second job after her partner lost his own. In April 2025, a division manager offered her a promotion to deli manager along with a $15-an-hour raise, up from her $11.20 hourly wage, as an incentive to give up her second job. Saylor accepted and mentioned the offer and pay rate to two coworkers, including the shift manager, who grew upset because she earned less than what Saylor was being offered. The next day, the store manager called Saylor into a closed-door meeting, told her the company had a policy against discussing wages, asked who else she had talked to, and warned her to consider the conversation a formal warning.

The judge found this violated the NLRA, since discussions among employees about pay are considered inherently protected activity even when only one employee benefits directly. The judge rejected Go-Mart's argument that Saylor's wage talk was purely self-interested, citing Fresh & Easy Neighborhood Market, Inc. for the principle that employees can act partly from selfish motives and still be protected, and noting Saylor had also sought the shift manager's input on whether the offer was fair.

The judge further found that after the meeting, Go-Mart never followed up on the promotion and began repeatedly rescheduling Saylor to shifts that conflicted with her second job and her ability to sleep between jobs, despite no legitimate business explanation and no other employee ever being assigned those hours. Applying the Board's Wright Line framework, the judge found the company failed to show it would have withheld the promotion and altered the schedule absent Saylor's protected wage discussion, and concluded the cumulative effect amounted to a constructive discharge when Saylor ultimately resigned.

The judge also rejected Go-Mart's constitutional challenges to the Board's structure and its argument that compensatory remedies violate the Seventh Amendment, following existing Board precedent on both issues. The recommended order requires Go-Mart to offer Saylor the deli manager position, make her whole for lost wages and related expenses, rescind the wage-discussion rule, and post a notice to employees.

Significant Cases Cited

• Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Employees may act partly from selfish motives and still engage in protected concerted activity, including when discussing wages that primarily affect only themselves.

• Jeannette Corp., 217 NLRB 653 (1975): An employer's unqualified rule prohibiting employees from discussing wages violates Section 8(a)(1) of the NLRA.

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

• Passavant Memorial Area Hospital, 237 NLRB 138 (1978): Establishes the standard an employer must meet to effectively repudiate unlawful conduct and avoid liability.

• North Mountain Foothills Apartments, LLC, 373 NLRB No. 26 (2024): Discussing compensation with coworkers is protected concerted activity, and an employer's belief that such talk was "riling up" the workplace shows it understood the activity as protected.

Clean Earth, Inc., JD-56-26, 32-CA-363439 (ALJ Decision)

An administrative law judge ruled that a Nevada hazardous waste company, Clean Earth, Inc., repeatedly violated the NLRA in its dealings with Teamsters Local 533 after the union won an election to represent a small group of drivers at the company's Fernley facility.

The judge found that Clean Earth broke the law by refusing to sign a written contract even after the union had ratified it, relying on an argument, that internal union ratification disputes excused the company from signing, that the Board has long rejected as an invalid defense. The company also unlawfully transferred a driving route from Fernley to its facility in Somerton, Arizona, without giving the union notice or a chance to bargain, either over the decision itself or its effects on the driver who lost the route and about $1,500 per pay period in wages.

The judge further found that the company eliminated the unit jobs of two drivers, Steven Quinn and Armel Balmediano, by moving them into a newly created "plant yard driver" position that Clean Earth argued was outside the bargaining unit, again without bargaining with the union. The judge discredited testimony from company managers on several points, finding their explanations illogical and contradicted by the company's own records, including evidence that Balmediano received a pay-raising "promotion" the same day he was moved into the new role, undercutting management's claim he took the job mainly to leave the union.

Because those unilateral moves shrank the unit to a single remaining driver, Clean Earth then withdrew recognition from the union altogether, asserting a one-person unit could not bargain collectively. The judge rejected that reasoning, holding that an employer cannot use its own unlawful conduct to shrink a bargaining unit and then claim the shrunken unit as a defense. The company also unlawfully refused to hand over information the union had requested to investigate the route transfers and staffing changes.

As a remedy, the judge ordered Clean Earth to sign and retroactively implement the contract, restore the eliminated positions and driving routes upon request, bargain with the union over the effects of its changes, restore recognition, turn over the requested information, and make affected employees whole for lost wages and other financial harm, with interest.

Significant Cases Cited

• H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941): An employer violates the NLRA by refusing to execute a written contract after reaching agreement with a union.

• NLRB v. Katz, 369 U.S. 736 (1962): An employer's unilateral change to a mandatory subject of bargaining violates the Act absent a valid defense.

• Fibreboard Corp., 379 U.S. 203 (1964): Subcontracting or transferring unit work is a mandatory subject of bargaining.

• Fresno Bee, 339 NLRB 1214 (2003): Sets out the burden-shifting framework for unilateral-change disputes, including the employer's burden to justify implementing a preelection decision without bargaining.

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): An employer must furnish a union with relevant information needed to perform its duties as bargaining representative.

Petermann, LTD/Durham, 09-RC-386287 (Regional Election Decision)

A regional director dismissed a union petition seeking to add a single Student Discipline Coordinator position to an existing bargaining unit of school bus drivers and monitors at a Pickerington, Ohio, transportation facility.

Teamsters Local Union No. 284, which already represents about 120 drivers and 40 monitors under a collective-bargaining agreement, asked to fold the discipline coordinator into that unit, arguing the position shared enough of a community of interest with drivers and monitors because of daily interactions over student discipline referrals and occasional bus driving duties. The employer countered that the position was one of five office clerical roles that did not belong with drivers and monitors.

The regional director sided with the employer. Applying the Board's community-of-interest framework, the decision found the coordinator's job functions, skills, training, pay, benefits, and working conditions differed substantially from those of drivers and monitors. The coordinator works full-time, year-round, from an office, using different equipment and undergoing different training than drivers, who work part-time seasonal routes. While the coordinator meets with drivers roughly an hour a day to handle discipline referrals and occasionally drives a bus when short-staffed, the decision found this contact too limited to establish functional integration or meaningful interchange of duties, noting that drivers cannot perform the coordinator's work.

The decision also rejected two secondary arguments. It found the petitioned-for unit would improperly "fracture" an appropriate grouping by carving out only one of five office clerical positions without a rational basis tied to classification, department, or function. It also declined to treat the coordinator as a "plant clerical" akin to the employee group in Syracuse University, finding her work not "intimately connected" to the drivers' transportation function in the way that case required. Because no community of interest existed, the petition was dismissed outright.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): Sets out the Board's standard for evaluating whether a petitioned-for unit shares a community of interest and is sufficiently distinct from excluded employees.

• Odwalla, Inc., 357 NLRB 1608 (2011): Establishes that a unit is impermissibly "fractured" when there is no rational basis for excluding a particular classification while including others.

• Syracuse University, 325 NLRB No. 15 (1997): Held that clerical employees may be treated as plant clericals, rather than office clericals, when their work is intimately connected to the operations of the unit they seek to join.

• Aurora Fast Freight, 324 NLRB 20 (1997): Reflects the Board's general policy disfavoring units composed of only a segment of an employer's office clerical employees.

• NLRB v. Action Automotive, 469 U.S. 490 (1985): Identifies the multi-factor community-of-interest test used to determine appropriate bargaining units.

Microsoft Corporation, 19-CA-364190 (Advice Memo)

Advice attorneys concluded that Microsoft did not violate Section 8(a)(1) when it fired two employees for holding an unauthorized protest tied to the "No Azure for Apartheid" campaign, finding the event was not protected concerted activity for mutual aid or protection.

The employee had spent months emailing leadership and posting internally about the war in Gaza, most of which did not touch on workplace issues. The company disciplined the employee only for two offensive remarks unrelated to working conditions and took no action over involvement in launching the campaign or circulating its petition, which called on Microsoft to cut its Azure contracts with the Israeli government and protect pro-Palestinian speech on company platforms.

The trouble began when the employee invited all staff to a walkout, vigil, speaker series, and fundraiser at Microsoft's Redmond campus opposing the tech industry's alleged support for what organizers called Israel's "apartheid and genocide." The invitation linked to a campaign toolkit that in turn pointed to the earlier petition but gave no indication the event addressed workplace concerns, and it was also publicized on social media to outsiders. Security told the organizers they could not hold the event on company property because it was aimed at non-employees, unauthorized, and backed by an outside group, and asked them to move offsite. When they went ahead anyway, both employees were terminated for violating policy and ignoring security's directions.

Advice found the protest fell outside the NLRA's mutual aid or protection clause because its purpose was to pressure Microsoft over its dealings with Israel and to raise humanitarian awareness and funds, not to improve employees' own working conditions. Citing Eastex, Inc. v. NLRB, the memo noted that at some point the link between employee activity and job-related interests becomes too attenuated for Section 7 protection. The invitation's indirect link to the older petition, which included one demand touching on workplace speech protections, was not enough to convert the protest into protected activity, consistent with Home Depot, USA (though the General Counsel disagrees with that decision and intends to seek its reversal) and Ampersand Publishing, LLC v. NLRB, which held employees cannot wrap an unprotected goal inside a protected one to gain coverage.

The memo also rejected the argument that the protest was protected because damage to Microsoft's public image from its Israel ties could indirectly hurt company finances and thus employee pay, finding that link too remote and inconsistent with case law, including National Dance Institute-New Mexico, Inc., holding that efforts to influence a company's broader business direction or policies do not qualify for mutual aid protection even if they carry incidental financial effects.

Finally, Advice found no evidence the stated reasons for the firings were pretextual, noting no sign of animus tied to the petition or other arguably protected conduct, and directed the Region to dismiss the charge absent withdrawal.

Significant Cases Cited

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Concerted activity is protected under the mutual aid or protection clause only up to the point where its connection to employees' interests as employees becomes too attenuated.

• Home Depot, USA, 373 NLRB No. 25 (2024): Addressed the scope of the mutual aid or protection clause where an otherwise unprotected activity is loosely tied to a workplace-related demand.

• Ampersand Publishing, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012): Employees cannot extend Section 7 protection by combining a protected goal with an otherwise unprotected one.

• National Dance Institute-New Mexico, Inc., 364 NLRB 342 (2016): Pressuring an employer to better serve the needs of an outside community is not protected mutual aid activity, even if it has ancillary financial effects on the business.

• Lutheran Social Service of Minnesota, 250 NLRB 35 (1980): Applied the principle that efforts aimed at an employer's broader managerial or business policies fall outside the mutual aid or protection clause.

Two days ago General Counsel Crystal Carey released a memo titled “Further Guidance Regarding General Counsel Priorities” (GC 26-04). In it, she details the efforts she has taken to reduce the agency’s unfair labor practice backlog:

Rather than prioritizing overturning precedent at the expense of case processing, my top priority is two-fold:

• Prioritizing processing of aged cases to reduce the historic backlog burdening the Agency.

• Implementing sustainable, prudent case handling practices to prevent a repetitive backlog of this scale.

I am excited to see that this approach is working. Since taking office, the dedicated public servants at the Agency have successfully completed the investigation of 9,247 cases pending as of January 7, 2026, which amounts to more than a 50 percent reduction in cases awaiting determination in regional offices when I arrived.

The memo does not provide any further detail about these numbers. So I attempted to recreate them using my comprehensive database of NLRB dockets, which I maintain as part of my related NLRB Research project.

Using my database, the specification that comes the closest to the 9,247 number works as follows:

1. Start with all of the unfair labor practice cases (C cases) that were open on January 7, 2026.

2. Exclude from (1) all cases where a complaint had already been issued by January 7, 2026.

3. After doing (2), add up all of the cases that went from open to closed and all of the cases that went from open without a complaint to open with a complaint.

This method identifies 9,248 cases, which is just one off from the 9,247 number in Carey’s memo.

Is this a large number of cases to have finished investigating? Historically, the answer is yes. In 2019, for instance, the same number across the same time frame was 4,918 cases. In 2024, it was 6,203 cases.

But, this number does not really differ from last year. In 2025, across the same time frame, the number of cases that were determined was 9,104, which is just 144 shy of what Carey achieved.

What exactly happened to these cases that caused them to be closed or determined? To answer this, we can break the determined cases into three categories:

1. Cases where a complaint was issued.

2. Cases that were closed in a way that indicates some kind of adjustment or remedy was achieved. This includes adjusted withdrawals, adjusted dismissals, informal settlement, and compliance with a Board order.

3. Cases that were closed in a way that indicates no adjustment or remedy was achieved. This includes non-adjusted dismissals and non-adjusted withdrawals.

Relative to 2025, Carey issued fewer complaints (314, down from 555). She also had fewer cases that were closed in an adjusted or remedial way (2,285, down from 3,054). This means that Carey achieved her large number by closing a lot more cases without adjustments or remedies (6,648, up from 5,494).

As I noted in a prior post on this subject, this is consistent with a policy of reallocating staff away from investigating cases with merit and towards closing cases without merit. This sort of strategy could close more cases (though it doesn’t seem to have relative to 2025), but not in a way that helps victims get remedies. If the point of clearing the backlog is to help victims get their cases processed rather than sit in a long queue, reallocating agency labor away from cases that have merit does not achieve that purpose.

Carey’s memo also implies that this approach is helping to reduce the backlog. But the backlog has actually grown slightly during her tenure as the number of new unfair labor practice charges being filed exceeds the number of cases that have been closed or determined. Carey’s efforts may have reduced the backlog relative to the counterfactual. But the actual backlog remains the same for reasons that are largely outside of her control.

What I think this all shows is that defeating the NLRB backlog is ultimately a budgetary question. I think some people in this world are under the impression that the backlog could be cleared with different leadership, especially hard-nosed leadership that is less willing to entertain certain kinds of cases and more focused on efficiently allocating agency resources towards disposing of cases. Carey’s own memo hints at this theory by suggesting that other GCs run up backlogs because they spend too many agency resources on trying to change the law and not enough on trying to process cases under current law. But if even Carey cannot get the backlog down, it seems like the only reasonable conclusion is that the NLRB is underfunded and understaffed relative to the sort of demand generated by the current version of the NLRA.

Further Guidance Regarding General Counsel Priorities, GC 26-04 (GC Memo)

The NLRB’s General Counsel issued guidance updating the agency’s stated priorities and identifying cases where she has asked, or plans to ask, the Board to reconsider recent precedents. The memo frames its top priority as reducing the backlog of pending cases, reporting that more than 9,000 cases pending as of January 2026 have since been resolved, a reduction of over 50 percent. It states that regions do not need to submit new cases to the Division of Advice on these topics, but should continue investigating and prosecuting them under existing Board law.

The memo lists positions already taken in pending litigation, including arguments to overturn the Board’s approach to severance agreement confidentiality and non-disparagement clauses from McLaren Macomb, to unwind limits on consent orders set in Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, and to revisit the work-rules standard from Stericycle. It also flags positions urging the Board to reverse restrictions on captive audience meetings adopted in Amazon.com Services LLC, to abandon the employer-prediction standard from Siren Retail Corp. d/b/a Starbucks, to reconsider dress code rules under Tesla, Inc., and to overturn the successor-bargaining waiver standard in Endurance Environmental Solutions, LLC.

The memo separately lists precedents the General Counsel intends to challenge if a suitable case arises, including the bargaining-order framework in Cemex Construction Materials Pacific, LLC, the pre-change bargaining obligations set out in Wendt Corporation and Tecnocap, LLC, the union objector-fee notice standard from UFCW Local 700 (Kroger Limited Partnership), the protected-activity standards in Miller Plastic Products, Inc. and Lion Elastomers, LLC, the post-contract dues checkoff obligation from Valley Hospital Medical Center, Inc., and the expanded remedies framework adopted in Thryv, Inc.

Significant Cases Cited

• McLaren Macomb, 372 NLRB No. 58 (2023): Held that employers violate the NLRA by offering severance agreements with broad confidentiality and non-disparagement clauses that restrict employees’ statutory rights.

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established a new framework requiring employers to either bargain with a union or file an election petition upon receiving a demand for recognition, with bargaining orders as a remedy for certain unfair labor practices during that period.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s standard remedies to include compensation for all direct or foreseeable pecuniary harms resulting from an employer’s unfair labor practices.

• Stericycle, 372 NLRB No. 113 (2023): Set a new standard for evaluating whether employer work rules unlawfully interfere with employees’ rights under the Act.

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Supreme Court decision authorizing bargaining orders as a remedy where an employer’s unfair labor practices undermine the possibility of a fair election.

Republic National Distributing Company, 375 NLRB No. 30, 16-RD-327720 (Published Board Decision)

A Board panel reversed a Regional Director's dismissal of a decertification petition, finding that the collective-bargaining agreement in place when the petition was filed lacked a clear effective date and therefore could not serve as a contract bar.

The case arose after Teamsters Local Union No. 988 was certified to represent drivers and drivers-helpers at Republic National Distributing Company LLC. The parties finished bargaining in September 2023 and exchanged a draft agreement that unit employees ratified, but the draft's "Term of Agreement" article left a blank space where the effective date should have appeared. Employee Steven Washburn filed a decertification petition on October 12, 2023. Four days later, the Employer and Union signed a final version of the agreement that filled in the effective date as September 17, 2023.

The Regional Director had dismissed the petition, reasoning that the parties reached a binding agreement through signed emails on September 13 and that the agreement contained substantial terms even before the blank was filled in. The Board majority disagreed, explaining that under the contract-bar doctrine, both the effective date and expiration date of an agreement must be apparent from the face of the document itself, without resorting to outside evidence. Because the September 13 draft, the only version in existence when the petition was filed, left the effective date blank, the Union could not meet its burden of proving the agreement had bar quality at that time. The Board noted that while the October 16 signed version did contain a clear effective date, it was executed after the petition was already filed, so it could not retroactively bar the petition. The Board reversed the dismissal and sent the case back to the Regional Director to process the decertification petition.

Member Prouty dissented, arguing that the agreement's wage article tied implementation to the "First Sunday after ratification," and since ratification occurred on September 15, the effective date of September 17 was readily discernible from the document without needing outside evidence. He would have upheld the dismissal and found a valid contract bar.

Significant Cases Cited

• Appalachian Shale Products Co., 121 NLRB 1160 (1958): Established that a contract of definite duration with substantial terms, signed before a petition is filed, bars an election for up to three years.

• South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375 (2005): Held that both the effective and expiration dates of a contract must be apparent from the face of the agreement, without resort to outside evidence, for it to serve as a bar.

• Cooper Tire & Rubber Co., 181 NLRB 509 (1970): Found that effective and termination dates could be reasonably construed from a contract's face where wage increases were tied to specific stated dates.

• Georgia Purchasing, Inc., 230 NLRB 1174 (1977): Found a contract bar existed where a union accepted a contract through a signed telegram.

• SSM Health Saint Louis University Hospital, 375 NLRB No. 26 (2026): Found that an agreement lacked bar quality where it stated it would be effective from an unfilled placeholder for the ratification date.

Bradley Technologies Inc. / American Eagle Protective Services, 10-RC-390158 (Regional Election Decision)

The Acting Regional Director for NLRB Region 10 has ordered a mail-ballot election for security guards employed by BTI Security and its subcontractor American Eagle Protective Services at federal facilities across Alabama, rejecting an incumbent union's argument that an existing contract should have blocked the vote.

The case arose after the International Union, Security, Police, and Fire Professionals of America petitioned to represent the guards, prompting United Federation LEOS-PBA, the incumbent union under a collective bargaining agreement with the employers, to intervene and argue that its contract automatically renewed and barred an election. At a hearing, the Regional Director first addressed a procedural dispute over whether the incumbent's Statement of Position, which was filed close to the deadline, should be excluded. He found that the Board's rules only require statements of position from employers, not intervenors, and that regional directors have discretion over what evidence to accept from an intervening party. He therefore allowed the incumbent to present its contract bar argument.

On the merits, the Regional Director applied the Board's longstanding contract bar rules, which require a written agreement with substantial employment terms signed before the petition, and which give parties to an expiring contract a 60-day "insulated period" to negotiate a new deal before a rival petition can be filed. He found that a 2024 "Bridge Agreement" between the employer and the incumbent, which extended the original contract's terms until a new agreement was reached, could not serve as a bar because it lacked a fixed end date, citing Lane Aviation Corp. and Pacific Coast Assn. of Pulp & Paper Mfrs. Turning to the underlying 2023 agreement, which had an automatic renewal clause, he found that the employer had timely notified the union of its intent to bargain over changes in May 2025, well before any 60-day renewal window, and that the parties then negotiated substantive changes to terms including discipline, grievances, and seniority through early 2026. Under Deluxe Metal Furniture Co., such notice defeats automatic renewal for contract bar purposes regardless of its form. Because the underlying contract's stated term ended June 30, 2026, and the petition was filed July 7, after that date, the Director concluded no contract bar existed and directed that the election proceed by mail ballot, with ballots to be counted in October 2026.

Significant Cases Cited

• Appalachian Shale Products Co., 121 NLRB 1160 (1958): Sets the three requirements for a contract to bar an election: it must be written, contain substantial terms and conditions of employment, and be signed by all parties before the petition is filed.

• Deluxe Metal Furniture Co., 121 NLRB 995 (1958): Establishes the 60-day "insulated period" before a contract's expiration and holds that timely notice of a desire to bargain over changes defeats automatic renewal for contract bar purposes, regardless of the notice's form.

• Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990 (1958): Holds that a contract without a fixed, ascertainable termination date cannot serve as a bar to an election.

• Lane Aviation Corp., 211 NLRB 824 (1974): Applied the rule that an agreement of indefinite duration, such as one ending when a new contract is executed, cannot operate as a contract bar.

• ALJUD Licensed Home Care Services, 345 NLRB 1089 (2005): Holds that an automatically renewing contract bars a petition unless a timely petition is filed before the insulated period begins.

Northeastern University, 01-CA-329551 (Unpublished Board Decision)

The Board vacated its earlier finding that Northeastern University violated the NLRA by refusing to bargain with a union representing police sergeants, sergeant detectives, and detectives, and dismissed the unfair labor practice complaint against the university.

The case returned to the Board after the United States Court of Appeals for the First Circuit ruled that the university had proven its sergeants and sergeant detectives were supervisors under Section 2(11) of the NLRA, meaning they should have been excluded from the bargaining unit. Because the certified unit improperly included supervisors, the Board concluded the university could not have unlawfully refused to bargain over that unit. The court's supervisory finding is treated as binding for purposes of this proceeding.

The court sent the case back to the Board to decide what should happen to the underlying representation case now that the unit's composition has changed, suggesting options like holding a new election or simply removing the supervisory classifications from the unit. Before deciding, the Board reopened the representation case and is asking the parties to address a wrinkle: the university claims that after the court's ruling, the union's counsel sent an email saying the union does not intend to represent the remaining detectives. The union did not weigh in on that claim, and the Board found the single email insufficient on its own to prove the union has abandoned its representation interest, especially since the union has not withdrawn its election petition.

Rather than ruling on the university's motion to dismiss the representation case outright, the Board issued a formal notice giving the parties until September 9, 2026 to explain why that motion should or should not be granted.

Significant Cases Cited

• Northeastern University v. NLRB, 138 F.4th 64 (1st Cir. 2025): The First Circuit held that the university's sergeants and sergeant detectives were statutory supervisors under Section 2(11), making the certified bargaining unit inappropriate, and remanded to the Board for further proceedings.

• Beverly California Corp., 970 F.2d 1548 (6th Cir. 1992): Cited for the principle that an employer does not violate Section 8(a)(5) and (1) by refusing to bargain over a unit that is not appropriate.

• 3 Beall Bros 3, 110 NLRB 685 (1958): Held that a union's bare statement is not enough to establish disclaimer of its representation interest if surrounding circumstances suggest otherwise.

American Backflow & Fire Prevention, Inc., 375 NLRB No. 31, 13-CA-285856 (Published Board Decision)

The Board affirmed an administrative law judge’s findings that a fire and plumbing services contractor committed a lengthy string of violations against two building trades unions that had organized its workforce, and it ordered the company to bargain, offer a job to a rejected applicant, and make employees whole for lost pay.

The case grew out of a 2021 union election victory at the company’s Wauconda, Illinois facility. After the vote, the employer went on what the judge called a sustained campaign to undermine the unions. It refused to consider hiring several known union supporters who applied for open jobs, including one man who was told he was “highly qualified” but would not be hired. It posted a sign showing the word “union” with a red slash through it on its main entrance, changed its website to say it was not hiring for union positions shortly after unfair labor practice charges were filed, and stopped accepting paper job applications from walk-in applicants. It also stopped conducting annual performance reviews and stopped issuing the wage increases that normally followed them, and it shifted a large share of bargaining-unit work to managers and non-union employees rather than replacing workers who left, causing the unit to shrink from 14 employees to five. The Board found all of this violated the NLRA’s protections against discrimination based on union activity and its bargaining obligations.

The Board also found that when the company withdrew recognition from the unions in March 2023, relying on decertification letters signed by remaining employees, it could not lawfully do so because its own unfair labor practices had tainted those letters. Because the misconduct touched directly on pay and job security, the kind of issues that led employees to unionize in the first place, the Board concluded the disaffection could not be treated as genuine and ordered the company to resume bargaining.

Separately, the Board flagged conduct by the company’s non-attorney representative, who had filed an exceptions brief containing citations to hearing testimony that did not exist and citations to two Board decisions that do not exist at all. The Board said this pattern suggested the filing may have been generated in part by artificial intelligence without verification, and it referred the matter to the Board’s Investigating Officer for possible disciplinary action, citing similar concerns raised recently by federal courts about fabricated legal citations in filings.

Significant Cases Cited

• FES, 331 NLRB 9 (2000): Set the framework for proving discriminatory refusal-to-hire and refusal-to-consider claims, requiring proof the employer was hiring, the applicant was qualified, and animus contributed to the decision.

• Toering Electric Co., 351 NLRB 225 (2007): Held that when an employer contests an applicant’s genuine interest in employment, the General Counsel bears the burden of proving the applicant was truly seeking a job.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing claims that an employer took adverse action because of protected union activity.

• NLRB v. Katz, 369 U.S. 736 (1962): Held that an employer violates the duty to bargain by unilaterally changing mandatory subjects of bargaining, including merit wage increases, without notice to the union.

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

SKBAR, LLC D/B/a Smoothie King, 375 NLRB No. 29, 10-CA-367860 (Published Board Decision)

The Board granted the General Counsel's motion for default judgment against a Smoothie King franchise in Statesboro, Georgia, after the company failed to file an answer to a complaint alleging multiple violations of Section 8(a)(1). Because the company did not respond despite being properly served and warned that default judgment would follow, the Board deemed the complaint's allegations admitted as true. The Board noted that a respondent's lack of legal representation does not by itself excuse a failure to answer, citing Patrician Assisted Living Facility and Sage Professional Painting Co.

Based on the admitted facts, the Board found that the company maintained an unlawful rule barring employees from discussing pay with coworkers and that a manager told employees about this rule during a meeting. It also found that during a store-wide meeting, a general manager threatened employees with discharge and with removal from the meeting for asking questions about pay rates and tip distribution, and reiterated the no-pay-discussion rule. The Board further found that employee Luke David Blevins was fired the same day for raising these concerns and asking these questions, activity protected as concerted action for mutual aid and protection, and that the company fired him specifically because of that activity and to discourage similar activity by other employees.

The Board ordered the company to cease these practices, rescind the pay-discussion rule, offer Blevins reinstatement, and make him whole for lost earnings and other pecuniary harms, including job-search and interim employment expenses, under the framework set out in Thryv, Inc. Backpay is to include compensation for adverse tax consequences and interest compounded daily, consistent with Kentucky River Medical Center. Chairman Murphy and Member Mayer noted they were not expressing a view on whether Thryv's expanded remedies are lawful but agreed to apply existing precedent absent a majority to overturn it. The company must also post a notice to employees and remove references to the unlawful discharge from its files.

Significant Cases Cited

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

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

• Thryv, Inc., 372 NLRB No. 22 (2022): Established that make-whole remedies must include compensation for direct or foreseeable pecuniary harms beyond traditional backpay.

• Kentucky River Medical Center, 356 NLRB 6 (2010): Set the standard requiring interest on backpay awards to be compounded daily.

• New Horizons, 283 NLRB 1173 (1987): Established the interest rate methodology used in calculating backpay awards.

Statesville Painting and Maintenance LLC, 375 NLRB No. 11, 10-CA-325878 (Published Board Decision)

The Board granted the General Counsel's motion for default judgment against Statesville Painting and Maintenance LLC after the company repeatedly failed to answer a consolidated complaint accusing it of numerous violations tied to a union organizing campaign in Danville, Virginia.

The company argued it had good cause for missing the deadline because Vincent Brown Sr., the person solely responsible for handling legal correspondence, had undergone surgeries and a lengthy recovery. The Board rejected that excuse, noting Brown remained in contact with his attorney and the Region during the relevant period and even filed an affidavit in an unrelated federal court case saying he was prepared to represent himself in that litigation. The Board also pointed out that the company never asked for an extension before the deadline passed and waited over 50 days to seek permission to file late. Citing prior precedent, the Board held that an employer cannot avoid its legal obligations simply because the one employee tasked with them faced personal difficulties.

Because the answer was rejected, the complaint's allegations were deemed admitted. Those allegations included threats to discharge employees for raising overtime concerns, a ban on wearing union apparel, statements that unionizing would be futile, surveillance impressions, promises of improved benefits to discourage union support, coercive interrogation, and the discharge or layoff of seven employees because of their union activity. The Board did, however, decline to find that the company's statement calling the Union "good for nothing" violated the Act, reasoning that employers may criticize a union without violating the NLRA as long as the criticism doesn't threaten employees or interfere with their rights.

Given the severity and scope of the violations, including conduct by a high-ranking supervisor that reached most of the bargaining unit and showed a likelihood of repeat violations, the Board found that traditional remedies like a rerun election would not adequately protect employees' expressed preference for union representation. It therefore issued a bargaining order requiring the company to recognize and bargain with the union.

The remedy includes reinstatement and back pay with interest for the affected employees, compensation for search-for-work and other pecuniary harms, tax-consequence compensation for lump-sum backpay, and posting, mailing, and in-person reading of a notice to employees in both English and Spanish given the company's use of interpreters for its workforce.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Establishes that a bargaining order may issue instead of a rerun election when an employer's unfair labor practices are so serious that they undermine the possibility of a fair election.

• Day & Zimmerman Services, 325 NLRB 1046 (1998): Holds that a respondent's failure to promptly request an extension of time to answer is a factor showing lack of good cause for a late filing.

• Children's Center for Behavioral Development, 347 NLRB 35 (2006): Holds that an employer may criticize or disparage a union without violating the NLRA so long as the statement doesn't threaten employees or interfere with their rights.

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

• Stevens Creek Chrysler Jeep Dodge, 357 NLRB 633 (2011): Found a Gissel bargaining order appropriate where unlawful discharges were accompanied by threats of job loss and wage-related promises.

International Association of Sheet Metal, Air, Rail and Transportation Workers Local Union No. 33 Pa, JD-55-26, 06-CB-354820 (ALJ Decision)

An administrative law judge ruled that a sheet metal workers' local violated the NLRA when its business representative told a nonmember employee, by text message, that the union would not refer nonmembers out for jobs.

The case arose after Ryan Bartelt, a nonmember who had resigned his membership and become a Beck objector, sought a referral to a construction project at a Ford Motor Company plant in Ohio through his union's district referral system. When he contacted the union, business representative Pat Allen texted him that the union would not refer nonmembers for jobs. Bartelt filed a charge alleging this violated Section 8(b)(1)(A) of the NLRA, which bars unions from restraining or coercing employees in the exercise of their organizing rights.

The central question was whether the union operated an exclusive referral system, since a union with such a system owes a duty of fair representation to all employees who use it, including nonmembers, and cannot favor members over nonmembers. A union running a nonexclusive system owes no such duty because it does not control workers' access to jobs.

The judge found that the union's collective-bargaining agreements with two contractor associations contained mandatory language requiring signatory employers to seek workers through the union's referral system first, before hiring elsewhere, which established an exclusive arrangement on its face. The union argued that in practice, employers and members often bypassed the referral system without consequence, making it effectively nonexclusive. The judge rejected this, citing Board precedent holding that inconsistent enforcement or informal exceptions do not override clear contractual language creating exclusivity, particularly since the referral provisions had gone unchanged and unchallenged through recent contract renewals. The judge also pointed to a specific practice on the Ford project, where a contractor consistently obtained sheet metal workers through the district's referral system over two and a half years, reinforcing the finding of exclusivity.

Because the referral system was exclusive, the union owed nonmembers like Bartelt a duty of fair representation, and Allen's text message announcing a blanket refusal to refer nonmembers violated that duty. The judge ordered the union to notify Bartelt in writing that it would not discriminate based on membership status in making referrals and to post a notice to members describing the violation and their rights under the Act.

Significant Cases Cited

• Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989): A union operating an exclusive referral system owes a duty of fair representation to all employees who use it, regardless of membership status.

• Vaca v. Sipes, 386 U.S. 171 (1967): The duty of fair representation prohibits a union from acting in an arbitrary, discriminatory, or bad-faith manner.

• Bricklayers Local 8, 235 NLRB 1001 (1978): Inconsistent practices by a few employers do not vary or negate the clear and unambiguous terms of a collective-bargaining agreement establishing an exclusive referral arrangement.

• Boston Cement Masons and Asphalt Layers Union No. 534, 235 NLRB 826 (1978): A union's failure to strictly enforce a referral provision in the past does not mean it waived its contractual right to an exclusive referral system.

• IBEW Local 11, 270 NLRB 424 (1984): Where a referral agreement's terms clearly establish an exclusive arrangement, the inquiry ends and extrinsic evidence cannot be used to vary those terms.

Nexstar Media Group, Inc., 14-RM-374657 (Unpublished Board Decision)

The Board declined to review a regional director's decision certifying the International Brotherhood of Electrical Workers, Local No. 4, as the bargaining representative following an election, finding that the employer's request raised no substantial issues warranting review.

The employer had argued that the election should be set aside based on the Board's holding in Amazon.com Services, an unfair labor practice case. Chairman Murphy and Member Mayer rejected that argument, relying on the reasoning set out in Satellite Healthcare. Because neither of them had participated in the Amazon.com Services decision, they noted they were expressing no view on whether that case was correctly decided.

Significant Cases Cited

• Satellite Healthcare, 374 NLRB No. 39 (2026): Provided the reasoning relied upon to reject the employer's argument for setting aside the election.

• Amazon.com Services, 373 NLRB No. 136 (2024): An unfair labor practice decision the employer invoked to challenge the validity of the election, which the Board found inapplicable here.

Preferred Building Services, Inc. V. NLRB, 24-1384 (DC Circuit)

A federal appeals court has upheld a National Labor Relations Board ruling that a San Francisco-area janitorial company illegally fired workers who picketed over pay, harassment, and working conditions, rejecting the company's arguments that the picketing itself broke the law.

The case traces back to 2014, when janitors employed by Preferred Building Services and its subcontractor, Ortiz Janitorial Services, picketed outside buildings they cleaned to protest low wages, poor conditions, and sexual harassment. A local union helped organize the demonstrations. After the pickets, the janitorial companies fired several participating employees, and the union filed unfair labor practice charges. An administrative law judge sided with the workers, but the Board initially reversed, finding the picketing itself was unlawful "secondary" picketing aimed at pressuring neutral businesses rather than the employer. The Ninth Circuit disagreed and sent the case back, finding no evidence supported that conclusion. On remand, the Board reaffirmed that the companies had violated the NLRA by firing the workers, rejected the employers' defenses, and ordered remedies including reinstatement and expanded compensation for financial harms under the Board's Thryv framework.

On this second round of appeal, Preferred (Ortiz did not participate) raised three arguments, and the U.S. Court of Appeals for the District of Columbia Circuit rejected all of them. First, Preferred argued it had been wrongly blocked from presenting evidence at the original hearing about a later, more confrontational protest at a different building, which it claimed would prove the picketing had an unlawful secondary purpose. The court found no prejudice, noting the Board had actually accepted this evidence as true and still concluded it didn't establish that the earlier pickets targeted neutral parties, distinguishing the case from Service Employees International Union Local 525 (General Maintenance), where a union had directly targeted a building's tenants.

Second, Preferred argued the picketing was actually aimed at forcing recognition of the union or organizing employees, which would make it unlawful under a different provision of the NLRA. The court found substantial evidence supported the Board's finding otherwise, pointing to picket signs and leaflets directed at the public rather than employees, the absence of any demand for recognition, and chants and materials focused on wages and working conditions rather than union organizing.

Third, Preferred challenged the Board's expanded remedy under Thryv, Inc., which requires compensating fired workers for job-search and other out-of-pocket costs regardless of interim earnings. The court held it lacked jurisdiction to consider this argument because Preferred never raised it before the Board itself, and rejected Preferred's claim that objecting would have been futile.

The court denied Preferred's petition for review and granted the Board's request to enforce its order.

Significant Cases Cited

• Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950): Established the four-factor test the Board uses to distinguish lawful primary picketing from unlawful secondary picketing at shared work sites.

• Service Employees International Union Local 525 (General Maintenance), 329 NLRB 638 (1999): Found unlawful secondary picketing where a union directly targeted a building's tenants and owners outside normal working hours.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's standard remedy for unlawful discharges to include compensation for direct or foreseeable financial harms beyond lost wages.

• HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016): Held that a party must file a motion for reconsideration with the Board to preserve objections to issues the Board decided on its own, and that a Board majority's rejection of a dissent's arguments does not excuse this requirement.

• Service Employees International Union Local 87 v. NLRB, 995 F.3d 1032 (9th Cir. 2021): The Ninth Circuit's earlier ruling in this same dispute finding no substantial evidence that the janitors' picketing had an unlawful secondary object.

Clear Choice Cannabis, 19-RC-389220 (Regional Election Decision)

A Regional Director for NLRB Region 19 resolved a representation petition filed by United Food and Commercial Workers Local 367 seeking to represent workers at a Tacoma, Washington cannabis dispensary operated by Clear Choice Cannabis. The parties disputed whether two job classifications, shift leads and front-of-house employees, belonged in the bargaining unit. The Regional Director found that shift leads are not supervisors and should be included, but that front-of-house employees are guards and must be excluded.

Shift Leads

The employer argued that shift leads hold supervisory authority under Section 2(11) of the NLRA in several categories, including hiring, discipline, assignment, reward, scheduling, and responsible direction of other employees. The decision walked through each category and found the evidence insufficient in every instance. Shift leads' hiring and promotion input amounted only to informal, personal recommendations that the sales manager did not treat as controlling. Their reported ability to order transfers was based on a single documented example, too infrequent to establish authority, consistent with the Board's reasoning in Robert Greenspan, D.D.S., P.C. Testimony that shift leads could discipline employees or send them home early was contradicted by the shift lead's own testimony, and under Avante at Wilson, Inc., that firsthand testimony was given priority. Directing budtenders to specific tasks or tills was found to be routine, non-supervisory direction rather than significant "assignment" as defined in Oakwood Healthcare, Inc. Discretionary bonus authority was deemed too infrequent and too closely reviewed by the sales manager to qualify as independent judgment. Because the employer, as the party asserting supervisory status, bears the burden of proof and any evidentiary gaps are held against it, the Regional Director concluded shift leads are ordinary employees who should be included in the unit.

Front of House Employees

The front-of-house classification presented a different question: whether these employees are statutory guards under Section 9(b)(3), which bars guards from being combined with non-guard employees in the same bargaining unit. The decision applied the guard factors set out in Boeing Co., including whether employees enforce rules protecting property or safety, monitor security systems, and report or respond to infractions. Although front-of-house employees lack uniforms, weapons, keys, or specialized security training, the decision found those features are not required for guard status. What mattered was that these employees are stationed at the entrance to check IDs, monitor security camera feeds, use coded radio communications to report drug use, disturbances, and emergencies, and periodically intervene to remove unruly customers. Citing Rhode Island Hospital, the decision explained that employees who primarily observe and report security issues, rather than physically confronting violators, can still qualify as guards when that function is a primary rather than incidental part of the job. Because monitoring and reporting security matters was found to be more than incidental to the front-of-house role, those employees were excluded from the unit as guards.

The Regional Director directed an election among the roughly 27 employees found appropriate for the unit, to be held September 11, 2026, at the employer's Tacoma facility.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the framework for analyzing supervisory authority under Section 2(11), including definitions of independent judgment, assignment, and responsible direction.

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Held that possessing any one of the statutory supervisory functions, exercised with independent judgment, is sufficient to confer supervisory status.

• Boeing Co., 328 NLRB 128 (1999): Set out the factors used to determine whether an employee qualifies as a statutory guard under Section 9(b)(3).

• Rhode Island Hospital, 313 NLRB 343 (1993): Held that employees who primarily observe and report security infractions, rather than directly confronting violators, can still be guards if that function is a primary job responsibility.

• Avante at Wilson, Inc., 348 NLRB 1056 (2006): Held that when testimony conflicts on supervisory status, the Board gives priority to testimony from the person actually occupying the disputed role who denies having supervisory authority.

Wyndham Vacation Ownership, Inc., 05-RD-385547 (Unpublished Board Decision)

The Board denied an employer's request for review of a Regional Director's decision to hold a decertification election petition in abeyance based on a union's request to block it. The Board found the request raised no substantial issues warranting review, concluding that the Regional Director had acted consistently with the Board's blocking-charge rule, Section 103.20 of its Rules and Regulations.

In a footnote, the Board majority clarified that it was not relying on a particular pending unfair labor practice charge as a basis for the blocking request, since nothing in the record showed the union had asked the Regional Director to use that charge to block the election. Member Prouty would have relied on that charge as additional support for blocking the petition, based on other pending charges.

Chairman Murphy and Member Mayer wrote separately to note that they were applying existing blocking-charge policy without expressing a view on whether that policy is correctly decided, citing institutional reasons for their restraint. Member Mayer added that the Board's current procedures require regional directors to continually reassess whether a charge should keep blocking a petition as processing continues, citing the Casehandling Manual and Section 103.20(e) of the Board's rules, which allow a regional director to resume processing a petition if special circumstances arise or if employee free choice becomes possible despite a pending charge. Member Mayer also suggested that the Board should examine whether its blocking-charge policy adequately weighs how much time has passed since a petition was filed, and urged that unfair labor practice cases blocking an election be given priority in processing.

Stericycle, Inc., 19-RC-390296 (Unpublished Board Decision)

The Board denied the Employer's request for review of a Regional Director's decision directing a mail-ballot election, finding no substantial issues warranting review. It also denied as moot the Employer's request to stay the election through ballot impoundment.

In a footnote, the Board addressed the standard governing a Regional Director's choice between manual and mail-ballot elections. It reiterated that while Regional Directors have broad discretion over election methods, a presumption favors manual elections over mail-ballot elections. That presumption can be overcome under circumstances set out in San Diego Gas & Electric, and a Regional Director's discretion, while not unfettered, must be exercised within the guidelines from that case and Aspirus Keweenaw. Those guidelines direct consideration of the parties' preferences, voters' ability to read and understand mail ballots, availability of employee addresses, and efficient use of Board resources.

The Board found that although the Regional Director did not explicitly walk through each of those factors, he had directed a mail-ballot election because eligible voters were geographically scattered due to a wide service area and varying shift times. The Board agreed that the voters were indeed scattered and that most of the discretionary factors favored mail balloting, concluding the Regional Director did not abuse his discretion.

Member Prouty added separately that he would be open to reconsidering the San Diego Gas & Electric standard in a future case and would favor an approach more accepting of mail balloting generally.

Significant Cases Cited

• San Diego Gas & Electric, 325 NLRB 1143 (1998): Set out the guidelines and enumerated circumstances under which a Regional Director may depart from the presumption favoring manual elections in favor of mail-ballot elections.

• Aspirus Keweenaw, 370 NLRB No. 45 (2020): Held that Regional Directors have broad but not unfettered discretion over election method, subject to the San Diego Gas guidelines, and that a presumption favors manual over mail-ballot elections.

Pacific Maritime Association v. National Labor Relations Board, 23-658 (9th Circuit)

The Ninth Circuit, sitting en banc, denied petitions for review filed by the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime Association (PMA), and granted the National Labor Relations Board's cross-petition to enforce its order awarding maintenance and repair work at a Seattle container terminal to the International Association of Machinists and Aerospace Workers (IAM).

The dispute arose after SSA Terminals reopened and modernized Terminal 5 in the Port of Seattle, triggering competing claims to the same equipment maintenance and repair work from ILWU and IAM, each acting under separate collective bargaining agreements with SSA Terminals. Because SSA Terminals could not assign the work to one union without breaching its contract with the other, the dispute qualified as a "jurisdictional dispute" under the NLRA. SSA Terminals invoked Section 8(b)(4)(D) of the NLRA and asked the Board to resolve the conflict under Section 10(k). Following a hearing, the Board awarded the work to IAM, citing the employer's preference, IAM's skills and experience, and considerations of economy and efficiency.

ILWU did not accept the outcome. It filed a grievance against SSA Terminals, arguing the company failed to defend ILWU's contractual right to the work during the Board proceeding, and an arbitrator ruled in ILWU's favor, ordering SSA Terminals to pay ILWU for lost work opportunities. IAM and SSA Terminals then brought an unfair labor practice charge against ILWU, arguing that pursuing the grievance violated Section 8(b)(4)(D) by attempting to coerce SSA Terminals into defying the Board's work assignment. The Board agreed and rejected ILWU's argument that its conduct was protected "work preservation" activity under the standard set out by the Supreme Court in National Labor Relations Board v. International Longshoremen's Association.

The central question for the en banc court was whether that work-preservation defense, which can excuse conduct otherwise barred as unlawful "secondary" pressure under Section 8(b)(4)(B), also applies to charges brought under Section 8(b)(4)(D) for defying a Board jurisdictional-dispute ruling. The court held it does not. It explained that Section 8(b)(4)(B) is aimed at distinguishing legitimate primary pressure on an employer from unlawful secondary pressure on neutral third parties, so the work-preservation defense makes sense there. Section 8(b)(4)(D), by contrast, already presupposes primary activity, since every union in a jurisdictional dispute is seeking work from its own contracting employer. Allowing a union to invoke work preservation to excuse defiance of a Board's Section 10(k) award would let any losing union escape liability simply by describing its noncompliance as an effort to preserve its own contractual work, undermining Congress's purpose in creating the Section 10(k) process: providing a conclusive, binding resolution to jurisdictional disputes.

In reaching this conclusion, the court expressly overruled language from its earlier decision in Kinder Morgan suggesting that the work-preservation defense could defeat a Section 8(b)(4)(D) charge. The court found the reasoning of the D.C. Circuit's decision in Sea-Land more persuasive, agreeing that permitting such a defense would let unions circumvent the Board's authority to finally resolve jurisdictional disputes. The court also rejected ILWU and PMA's argument for a narrower exception when a union is enforcing a bargained-for "work modernization" clause, noting that such clauses are common and that allowing an exception for them would still undermine the Board's ability to issue binding resolutions. The court clarified that the Board must still consider the terms of the parties' collective bargaining agreements, including modernization clauses, when deciding how to assign disputed work in the first instance, but once the Board issues its determination, the losing union cannot use the work-preservation defense to defy it.

Significant Cases Cited

• National Labor Relations Board v. International Longshoremen's Association, 447 U.S. 490 (1980): Established the two-part work-preservation defense test for determining whether conduct is protected primary activity rather than unlawful secondary activity under Section 8(b)(4)(B).

• International Longshore & Warehouse Union v. National Labor Relations Board (Kinder Morgan), 978 F.3d 625 (9th Cir. 2020): Previously suggested, in language the en banc court overruled here, that the work-preservation defense could defeat a Section 8(b)(4)(D) unfair labor practice charge.

• National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612 (1967): First articulated the work-preservation defense distinguishing primary from secondary union activity.

• NLRB v. Plasterers' Local Union No. 79 (Texas Tile), 404 U.S. 116 (1971): Explained that Section 8(b)(4)(D) must be read together with Section 10(k) as an interlocked scheme for resolving jurisdictional disputes.

• International Longshoremen's & Warehousemen's Union v. NLRB (Sea-Land), 884 F.2d 1407 (D.C. Cir. 1989): Held that a union charged with violating Section 8(b)(4)(D) for defying a Section 10(k) award cannot invoke the work-preservation defense.

AOD Movie, LLC, 02-RM-389897 (Regional Election Decision)

The Regional Director for Region 2 dismissed a petition filed by AOD Movie, LLC seeking an election among its production assistants after the Union sought voluntary recognition of that group.

The employer's position was that it was a single purpose entity formed only to produce a movie, that the production had wrapped, that every production assistant's employment had already ended, and that none of them had any expectation of being rehired. The Union, for its part, took issue with the scope of the proposed unit, arguing it improperly left out the production secretary, but did not dispute the employer's account of the workforce's status.

After receiving the parties' statements of position, the Regional Director issued an order to show cause and indefinitely postponed the hearing, asking the parties to explain why the petition should not simply be dismissed. Neither party responded by the deadline.

Given that silence, and the uncontested facts that no employees currently work in the proposed unit and that former employees have no expectation of future employment there, the Regional Director found there was no employee complement for which an election could be held and dismissed the petition. The order advised the parties of their right to seek Board review of the dismissal under Section 102.67 of the Board's Rules and Regulations.

Phoenix Energy Management Inc. And PEM Inc., 29-RM-350311 (Unpublished Board Decision)

The Board denied the employer's request for review of a Regional Director's decision dismissing an RM petition and a decertification petition after unresolved unfair labor practice charges were pending against the employer.

The Regional Director had applied what the Board calls a "merit-determination dismissal," under which the petitions were dismissed, subject to reinstatement, based on a determination regarding the merit of certain unfair labor practice allegations. Under that framework, complaint allegations are accepted as true, and the question becomes whether those allegations, if proven, would require setting aside an election. The employer did not challenge how the Regional Director applied that test to the facts. Instead, it argued the framework should not have been applied at all, primarily because the Regional Director allegedly failed to first resolve whether Ironworkers Local 852 had properly assumed representation of the unit employees from another local, Ironworkers Local 580. The Board rejected this argument, finding that the Regional Director had implicitly treated the complaint's allegation that Local 852 assumed representation from Local 580 as true, consistent with the merit-determination dismissal methodology, even though her order did not say so explicitly.

Chairman Murphy and Member Mayer noted they did not participate in the Rieth-Riley Construction Co. decision establishing the merit-determination dismissal framework and take no position on whether it was correctly decided, applying it here only for institutional consistency. Member Mayer separately reiterated views expressed in a prior Starbucks Corp. matter that the framework deserves reconsideration because it can leave employees unable to exercise their representation choice for extended periods. He also flagged that seventeen months passed between the close of the pre-election hearing and the dismissal order, despite no litigable issues being raised at that hearing, calling the delay regrettable given the prompt-election protections under the 2020 Election Protection Rule that governed these petitions.

Significant Cases Cited

• Rieth-Riley Construction Co., 371 NLRB No. 109 (2022): Established the merit-determination dismissal framework, under which unfair labor practice complaint allegations are accepted as true to assess whether they would require setting aside an election.

Marathon Petroleum Logistics Services LLC, 27-RD-387246 (Unpublished Board Decision)

The Board denied a request for review of a Regional Director's decision to hold a decertification petition in abeyance under the blocking-charge policy set out in Section 103.20 of the Board's Rules and Regulations. The Board found the request raised no substantial issues warranting review, so the petition remains on hold while related unfair labor practice charges are processed.

In a footnote, two Board members wrote separately to note that they were applying existing law without expressing any view on whether the blocking-charge policy itself was correctly decided. They pointed out that under current procedures, regional directors are expected to keep reassessing whether a charge should continue to block a petition throughout the processing of both the charge and the petition, and that a regional director retains authority to resume processing a petition if special circumstances arise or if employee free choice becomes possible despite the pending unfair labor practice allegations.

Significant Cases Cited

• Starbucks Corporation, 374 NLRB No. 141 (2026): Addressed the Board's blocking-charge procedures and regional directors' ongoing duty to assess whether a charge blocks a pending petition.

Aleut Information Technology, LLC, JD-54-26, 19-CA-350069 (ALJ Decision)

An administrative law judge found that Aleut Information Technology, LLC committed multiple violations of the NLRA in connection with its dealings with the International Brotherhood of Teamsters Local 959, which represented operators at a Department of Defense facility in Anderson, Alaska, but concluded that the company lawfully fired one employee despite his union activity.

The case grew out of two separate storylines. The first involved a bargaining-unit employee, Egbert Visker, who wanted the company to move operators from a 7-days-on/7-days-off schedule to a 14/14 schedule. When he learned the union had already agreed to keep the 7/7 schedule in ongoing contract talks, Visker began pursuing decertification of the union instead, discussing the idea repeatedly with supervisor Bryce Wolffe. In January 2025, Wolffe told Visker that employees could get the 14/14 schedule if Visker collected enough signatures on a decertification petition. Visker did so, submitting a petition with six signatures on January 28, 2025, and the company withdrew recognition from the union on February 10, 2025, later implementing the 14/14 schedule.

The judge found that Wolffe's statement went well beyond permissible ministerial assistance to an employee-led decertification effort and amounted to an unlawful promise of a benefit in exchange for signatures, violating Section 8(a)(1). The same conduct also constituted unlawful direct dealing with a bargaining-unit employee, in violation of Section 8(a)(5) and (1).

On the withdrawal of recognition itself, the judge found it unlawful on multiple independent grounds. First, the company failed to authenticate the signatures on the decertification petition and did not establish the size of the bargaining unit, so it never met its burden under Levitz Furniture of showing an actual loss of majority support. Second, under Hearst Corp., the petition was tainted because the company's own unfair labor practices were directly related to the decertification drive. Third, applying the Poole Foundry settlement-bar framework, the judge found the company had not bargained for a reasonable period of time following an earlier informal settlement agreement before withdrawing recognition, given that real bargaining did not begin until November 2024 and only seven relatively short sessions had occurred before the February 2025 withdrawal. The judge rejected a separate theory under Master Slack Corp. that would have linked the decertification effort to the company's earlier unilateral changes, finding no causal connection between those unrelated violations and the petition.

The judge also found two unrelated unilateral-change violations: the company unlawfully began strictly enforcing a 36-hour cap on flextime accrual in June 2024 without bargaining, and unlawfully granted discretionary wage increases to three employees in October 2024 without notifying or bargaining with the union, rejecting the company's reliance on NLRB v. Katz because the raises involved significant discretion rather than an automatic, pre-committed formula.

On the second storyline, the judge found that operator Eric Vantrease's discharge for failing to obtain a DOD-required security certification was lawful. Although Vantrease served on the union's bargaining committee, the judge found the General Counsel failed to show the company harbored animus toward that activity, since supervisor Wolffe's inquiries and the company's eventual deadline were tied to the certification's expiring waiver period rather than Vantrease's union role. The judge also found that even if animus had been shown, the company proved it would have discharged Vantrease regardless, given that he made minimal effort to complete the required training despite ample off-duty time.

As a remedy, the judge ordered an affirmative bargaining order with a temporary decertification bar, along with make-whole relief for the unlawful unilateral changes and periodic bargaining progress reports to the NLRB's Region 19.

Significant Cases Cited

• Levitz Furniture, 333 NLRB 717 (2001): An employer may withdraw recognition from an incumbent union only upon objective evidence, such as an authenticated petition, that the union has actually lost majority support, and bears the burden of proof.

• Hearst Corp., 281 NLRB 764 (1986): A decertification petition is tainted, and cannot support withdrawal of recognition, when the employer committed unfair labor practices directly related to the decertification effort.

• Master Slack Corp., 271 NLRB 78 (1984): Sets out a four-factor test for determining whether a causal connection exists between an employer's unrelated unfair labor practices and a subsequent decertification effort.

• Poole Foundry & Machine Co., 95 NLRB 34 (1951): An employer that settles a bargaining violation must bargain for a reasonable period of time before a union's majority status can be challenged, based on factors including bargaining complexity and progress made.

• Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for evaluating whether an employee's discharge was motivated by protected union activity under Section 8(a)(3).

Together for Youth, 03-RC-391296 (Regional Election Decision)

A regional director for the National Labor Relations Board has dismissed a union's petition to represent Administrators on Duty and Supervising Detention Counselors at a secure juvenile detention facility in Albany, New York, finding that both job classifications qualify as supervisors and are therefore excluded from coverage under the NLRA.

Together for Youth runs a 39-bed facility housing juvenile offenders. The International Union, Security, Police and Fire Professionals of America petitioned to represent the facility's 12 Administrators on Duty and eight Supervising Detention Counselors, who sit above roughly 105 Secure Detention Counselors in the facility's chain of command. The employer argued that both groups already function as supervisors under Section 2(11) of the NLRA and should not be allowed to unionize. The parties agreed both groups qualify as guards under Section 9(b)(3), leaving supervisory status as the only disputed issue.

The regional director found the employer met its burden on both job titles, though for different reasons. Administrators on Duty conduct the sole interview for entry-level detention counselor applicants, and their hiring recommendations are followed without further review except for a background check. The record also showed that Administrators on Duty had, on at least two occasions, independently resolved union grievances on the employer's behalf without input from higher management. Either the hiring authority or the grievance-adjustment authority alone was enough to establish supervisory status.

Supervising Detention Counselors presented a closer question. The director found insufficient evidence that they responsibly direct staff, noting testimony about their duty to "address" counselors who leave their posts was too vague to show real accountability for subordinates' performance. However, the director found that Supervisors use independent judgment when assigning counselors to specific posts, teams, and duties each shift, weighing factors like safety plans, staffing ratios, one-to-one observation requirements, and conflicts between staff and residents. Because those assignment decisions are not dictated by a rigid schedule or higher authority, the director concluded they satisfy the "assign" function under Section 2(11), making Supervisors statutory supervisors as well.

With both groups found to be supervisors, the director ruled that no question concerning representation exists and ordered the petition dismissed.

Significant Cases Cited

• NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706 (2001): Established that the party asserting supervisory status bears the burden of proof and set out the framework for analyzing the twelve enumerated supervisory functions under Section 2(11).

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined key Section 2(11) terms including "assign," "responsibly to direct," and "independent judgment," and held that charge nurses who exercised independent judgment in assigning nurses to patients were supervisors even without evidence of responsible direction.

• Croft Metals, Inc., 348 NLRB 717 (2006): Held that supervisory status must be established by a preponderance of the evidence and reinforced the standards for applying the Section 2(11) test.

• Shaw Inc., 350 NLRB 354 (2007): Reaffirmed that the burden of proving supervisory status rests on the party asserting it exists.

• Community Education Centers, Inc., 360 NLRB No. 17 (2014): Held that purely conclusory evidence, without specific supporting detail, is insufficient to establish supervisory status.

Starbucks Corporation, 28-CA-313460 (Unpublished Board Decision)

The Board denied Starbucks' appeal of an Administrative Law Judge's ruling in a case involving Workers United, the union affiliated with the Service Employees International Union.

The dispute centered on a motion by the NLRB's General Counsel to withdraw certain consolidated complaint allegations and remand the matter to the Regional Director. Administrative Law Judge Mara-Louise Anzalone denied that motion, and Starbucks sought special permission to appeal her decision to the Board.

A three-member panel, Chairman James R. Murphy and Members David M. Prouty and Scott A. Mayer, granted Starbucks permission to file the appeal but rejected it on the merits. The Board found that Starbucks had not shown the judge abused her discretion in refusing to let the General Counsel withdraw the allegations and send the case back to the Regional Director. As a result, the judge's order stands and the withdrawn allegations remain part of the consolidated complaint before her.

In May of this year, I wrote about a strange case I was working on involving the California State University Employees Union (SEIU Local 2579) and the union representing CSUEU’s own staff (UAW Local 2350). What was curious about the case was not that there was a contractual dispute between the two. This happens fairly regularly. What was weird was that UAW Local 2350 invoked its right to submit the dispute to arbitration and then CSUEU refused to arbitrate it.

The substantive dispute in this case began in January of this year when CSUEU President Catherine Hutchinson sent a letter to a CSUEU staff member informing her that CSUEU was extending her probationary period by six months. The binding collective bargaining agreement (CBA) establishes a one-year probationary period during which new employees can be fired without cause, but it does not permit the employer to extend this period. UAW Local 2350 therefore grieved this unilateral extension of the probationary period and asked that CSUEU issue a correction indicating that the employee in question had become a permanent employee.

Hutchinson denied the grievance and explained that she had not violated the CBA by extending the probationary period. UAW Local 2350 then filed a step-two grievance, which was also denied, followed by a demand to arbitrate. Through counsel, Hutchinson then indicated that “CSUEU does not agree to arbitrate.”

The refusal to arbitrate left UAW Local 2350 no choice but to file a federal lawsuit against CSUEU seeking an order compelling CSUEU to arbitrate. I filed the complaint and motion to compel in that suit in May of this year. Earlier this week, the judge issued an order granting the motion and compelling CSUEU to arbitrate.

Complaint

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Motion to Compel (Memo)

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Order Compelling Arbitration

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Throughout this dispute, CSUEU never articulated a good reason for their refusal to arbitrate. Their counsel’s sole argument before the court was that the initial letter sent by the union steward grieving the probationary extension was not really a grievance because it did not contain the word “grievance.” This argument was advanced even though the CBA does not require any such language and specifically refers to the first step of the grievance process as an “informal step” that can be satisfied by something as minimal as a verbal conversation with a manager about it. The judge in the case rejected this not-a-real-grievance argument immediately.

Of course, parties often advance nonsense positions in court for strategic purposes, including solely for the purpose of delay. But what’s strange about this case is that it remains totally unclear what that strategic purpose could have possibly been. It does not seem strategically wise for CSUEU, which represents 35,000 employees in the California State University system, to spend thousands of dollars of its members’ money on a federal lawsuit it is certain to lose while advancing a legal position about what constitutes a grievance that would be harmful to their membership, and the labor movement generally, if they did somehow win. Buying some time until CSUEU formally grants permanent status to the employee in question also does not really help CSUEU financially or otherwise.

The only thing that really makes sense about all this is if you imagine that Hutchinson thought that UAW Local 2350 would be unwilling to jump through all of the hoops necessary to enforce the parties’ CBA. This is a weird way for a union to behave towards another union and turned out to be wrong.

I am hoping the parties can resolve this issue now rather than spend yet another chunk of labor movement money on an arbitration. We will see.

Shell Pipeline Co., LP, JD(SF)-15-26, 16-CA-342028 (ALJ Decision)

An administrative law judge found that Shell Pipeline Co., Shell Chemical, and Pennzoil-Quaker State Company (doing business as SOPUS Products) violated the NLRA by refusing to give the United Steelworkers individualized racial and ethnic data on unit employees, even though the companies had routinely provided that same information for roughly a decade.

The dispute arose after each employer, starting in mid-2024, began withholding "minority status" data on an individualized basis, offering only aggregated figures instead. The companies pointed to the European Union's General Data Protection Regulation, an internal company policy they never produced, and a new "Self ID" diversity program as reasons for the change. At the hearing, a Shell manager conceded that none of the U.S. entities were actually subject to the EU privacy law, and the judge found the companies' invocation of Self ID inconsistent since they continued to hand over other Self ID-covered data, like gender, while withholding race and ethnicity figures.

The judge held that because each collective-bargaining agreement contained a nondiscrimination clause, the union had a duty to police that provision, making individualized minority data presumptively relevant under longstanding Board precedent. He also found the union proved actual relevance, crediting testimony from union representative Ben Lilienfeld about a grievance in which a Black warehouse employee alleged his Hispanic supervisor favored Hispanic coworkers. Because everyone in that unit belonged to a minority group, aggregated numbers could not have revealed whether race played a role, a point the employers' own witness ultimately conceded.

The judge rejected the companies' confidentiality defense under Detroit Edison v. NLRB, finding they never established a substantial confidentiality interest, particularly given their history of freely sharing the data, their admission that it is not covered by any privacy law that applies to them, and evidence that they determine employees' ethnicity through visual observation when workers decline to self-identify. He also rejected the companies' argument that the proceeding was invalid due to the constitutional structure of the Board, noting the employers showed no harm from the removal protections at issue. He concluded that all three companies violated Section 8(a)(5) and (1) and ordered them to furnish the withheld data and post remedial notices.

Significant Cases Cited

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Employers must furnish information potentially relevant to a union's duties as bargaining representative, including deciding whether to pursue a grievance.

• Detroit Edison v. NLRB, 440 U.S. 301 (1979): Courts balance an employer's substantial confidentiality interests against a union's need for requested information.

• Lucky Markets, 251 NLRB 836 (1980): Race data on unit employees is presumptively relevant where the CBA contains a nondiscrimination clause and must be produced without special safeguards.

• Westinghouse Electric Corp., 239 NLRB 106 (1978), enforced, Electrical Workers IBEW v. NLRB, 648 F.2d 18 (D.C. Cir. 1980): An employer must supply minority status data needed to police a contractual nondiscrimination provision.

• Frito-Lay, Inc., 333 NLRB 1296 (2001): An employer was required to produce race data even for employees outside the bargaining unit.

Raven Clinical Research, Inc., JD-53-26, 09-CA-361350 (ALJ Decision)

An administrative law judge has ruled that a clinical research company violated the NLRA when it fired a worker after he called two colleagues to ask whether they, too, had been paid late.

The case centered on David Smith, who began working remotely for Raven Clinical Research in August 2024 as a contractor earning $50 an hour. Raven's CEO, Dell Hines, terminated Smith's relationship with the company on March 3, 2025, days after Smith phoned coworkers Traci Bryant and Joy Newby to ask if they had received their pay on time. Neither Bryant nor Newby testified at trial, so the judge declined to credit secondhand accounts of what Smith allegedly said to them.

Before reaching the question of protected activity, the judge had to decide whether Smith counted as an employee under the NLRA at all, since independent contractors fall outside the statute's protections. He found that Raven and Smith had formed an employment contract no later than February 5, 2025, when Smith signed a retention bonus letter that repeatedly referred to his “employment” and required him to remain “actively employed” through April 2025. The judge noted that Raven had a practice of converting contractors to W-2 employees, as it had done for another worker, Traci Bryant, and found no basis for treating a worker under an employment contract as an independent contractor. As an alternative, applying the common-law factors from the Restatement of Agency under the Board's test in The Atlanta Opera, the judge again found Smith was an employee by February 5, pointing to the open-ended nature of his engagement, his role performing Raven's core business function, and a noncompete provision that effectively barred him from other clinical research work.

Turning to the merits, the judge found that Smith's calls to Bryant and Newby were an effort to spur group action over a shared workplace concern, which qualifies as protected concerted activity even without an explicit call for the two to join him in raising the issue with management. He found a direct link between those calls and Smith's termination, relying on the timing of Hines's termination letter and Hines's own testimony, and discredited Hines's claim that he had already decided to fire Smith before learning of the calls. The judge also noted that even if Smith's conduct fell short of concerted activity, firing him to prevent future organizing among coworkers would independently violate the Act. He rejected Raven's argument that the complaint's narrower wording barred a finding on this theory, concluding the issue was closely related to the charge and had been fully litigated.

The judge ordered Raven to reinstate Smith, make him whole for lost earnings and benefits including any unpaid retention bonus, cover his search-for-work and interim employment expenses, compensate him for adverse tax consequences of a lump-sum award, and post a notice to employees.

Significant Cases Cited

• The Atlanta Opera, 372 NLRB No. 95 (2023): Set the current Board standard for distinguishing employees from independent contractors, requiring assessment of all common-law agency factors without giving controlling weight to entrepreneurial opportunity.

• SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019): Prior standard emphasizing entrepreneurial opportunity in the independent-contractor analysis, later overruled by The Atlanta Opera.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework requiring the General Counsel to show protected activity was a motivating factor in an adverse action, after which the employer must prove it would have acted the same way regardless.

• Myers Industries (Myers I), 268 NLRB 493 (1984): Held that concerted activity under Section 7 must be engaged in with or on the authority of other employees, though a single employee seeking to initiate group action also qualifies.

• Pergament United Sales, 296 NLRB 333 (1989): Held the Board may find and remedy a violation not specifically alleged in the complaint if the issue is closely connected to the complaint's subject matter and was fully litigated.

Asante D/B/a Asante Rogue Regional Medical Center, JD-52-26, 19-CA-316937 (ALJ Decision)

An administrative law judge found that a hospital operator committed several unfair labor practices during a union organizing campaign at its Medford, Oregon facility, while dismissing other allegations for lack of proof.

The case arose after the Oregon Nurses Association launched a 2023 campaign to organize surgical technologists, respiratory therapists, imaging staff, and other technical employees. The hospital responded by hiring outside labor consultants who held more than 100 meetings with employees, some mandatory, in the weeks before the election.

The judge credited testimony that consultant Arthur Wentworth told employees at an April meeting that if they voted for the union, the hospital would no longer be obligated to give them their annual merit-based wage increases. Relying on Famous Barr and DHL Express, the judge found this unlawful because an employer facing an organizing drive must continue granting benefits as it would have absent the campaign, and the discretionary nature of the merit reviews did not excuse withholding them. A separate claim that Wentworth unlawfully threatened employees with excessive union fines for crossing a picket line was dismissed, since the Union's own bylaws authorized such fines and the prediction addressed consequences outside the employer's control under NLRB v. Gissel Packing Co.

A claim that consultant Evelyn Fragoso told employees their pay would be "frozen" during negotiations was dismissed after the judge found her denial more credible than an employee's imprecise recollection. But a similar claim against a consultant identified only as Katrina was sustained: the judge found she told employees there was "no way" to get a raise except through a contract, a statement that implied the employer would simply refuse any other increase and thus crossed from lawful prediction into an unlawful threat.

The judge also found that Wentworth violated the Act when, after employees raised concerns about health insurance, he told them it would be unlikely the union could change their coverage, without pointing to any objective facts supporting that prediction. That amounted to an unlawful suggestion that bargaining would be futile. A related claim that Wentworth suggested respiratory therapists would never gain more professional "recognition" through a union was dismissed because that topic was not a mandatory subject of bargaining.

Finally, the judge found that supervisor Tucker Stennett unlawfully interrogated respiratory therapist Amy Palazzolo when he questioned her one-on-one about why she skipped a mandatory anti-union meeting, whether she'd be comfortable being paid the same as new hires, whether she had prior union experience, and what she hoped to gain from the union, all without explaining any legitimate purpose or offering assurances against retaliation.

The judge ordered the hospital to cease and desist from these practices and to post a notice to employees at its Medford facility.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Held that employers may lawfully predict the effects of unionization only if the predictions rest on objective facts and address consequences beyond the employer's control; otherwise the statement is an unlawful threat.

• DHL Express, Inc., 355 NLRB 1399 (2010): Held that an employer's statement that wages will be frozen until a collective-bargaining agreement is signed violates the NLRA when the employer has a past practice of granting periodic wage increases.

• Rossmore House, 269 NLRB 1176 (1984): Set out the totality-of-circumstances factors used to determine whether an employer's questioning of an employee about union sympathies constitutes unlawful interrogation.

• Famous Barr, 174 NLRB 770 (1969): Held that an employer confronted with a union campaign must grant or withhold benefits as it would if the union were not in the picture.

• Jensen Enterprises, Inc., 339 NLRB 877 (2003): Found a violation where an employer told employees their wages would be frozen or put on hold during contract negotiations.

New York-Presbyterian Brooklyn Methodist Hospital, JD-51-26, 29-CA-332578 (ALJ Decision)

An administrative law judge ruled that New York Presbyterian – Brooklyn Methodist Hospital violated the NLRA when it unilaterally imposed a mandatory uniform requirement on its registered nurses without first bargaining with their union, the New York State Nurses Association.

The dispute traced back to the hospital's dress code policy, which historically allowed individual units to set their own attire standards. During 2023 contract negotiations, the hospital proposed adding a mandatory uniform requirement to the collective bargaining agreement, but the union rejected it, campaigning with the slogan "We Need RNs Not Uniforms," and the final contract contained no uniform language. Several months later, in November 2023, the hospital announced it would implement the uniform policy anyway, citing its management-rights clause, and put it into effect in March 2024 despite the union's objections and a request to bargain.

The judge first addressed whether the case should be deferred to the grievance-arbitration process under the union's contract, applying the six-factor test from Wonder Bread. Although several factors favored deferral, including the parties' long bargaining relationship and the broad scope of their arbitration clause, the hospital's last-minute refusal to waive timeliness defenses and unwillingness to arbitrate the matter weighed heavily against deferral, so the judge proceeded to the merits.

On the merits, the judge found the new uniform policy was a material, substantial, and significant change to nurses' terms and conditions of employment, comparing the case to Salem Hospital Corp., where a similar hospital-wide dress code overhaul was found unlawful because it rendered employees' existing attire unusable and limited their options for cold-weather clothing. The judge rejected the hospital's argument that the change merely continued a past practice of allowing unit-level dress code variation, noting that the new policy was a hospital-wide mandate affecting the entire nursing staff, a much broader change than any prior unit-specific adjustments.

The judge also found the hospital's unilateral action was not protected by its management-rights clause under either the clear-and-unmistakable-waiver standard from Endurance Environmental Solutions or the contract-coverage test from MV Transportation. Because the hospital had proposed uniform language during bargaining and the union successfully kept it out of the final contract, the union never waived its right to bargain over the issue, and the hospital's later reliance on the management-rights clause to justify unilateral action was inconsistent with that bargaining history.

As a remedy, the judge ordered the hospital to rescind the uniform policy and any related discipline, make affected employees whole for losses, and bargain with the union before making any future changes to nurses' terms and conditions of employment.

Significant Cases Cited

• Wonder Bread, 343 NLRB 55 (2004): Established the six-factor test for determining when the Board should defer unfair labor practice charges to grievance-arbitration procedures.

• Salem Hospital Corp., 360 NLRB 768 (2014): Held that a hospital's overhaul of its uniform and dress code policy was a material, substantial, and significant change requiring bargaining.

• MV Transportation, Inc., 368 NLRB No. 66 (2019): Set out the contract-coverage test for evaluating whether a management-rights clause privileges unilateral employer action.

• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Restored the clear-and-unmistakable-waiver standard for assessing contractual defenses to unilateral-change allegations.

• Crittenton Hospital, 342 NLRB 686 (2004): Recognized that uniform requirements and workplace attire are generally mandatory subjects of bargaining.

Metro Surfaces, LLC, 27-RC-389972 (Regional Election Decision)

A regional director for the National Labor Relations Board has ordered that a union representation election for tile layers, marble setters, stone masons, terrazzo workers, and finishers at Metro Surfaces, LLC be conducted by mail rather than in person.

The petition, filed by the Bricklayers & Allied Craftworkers Mountain West Administrative District Council, Local Union No. 1 Utah, sought to represent a bargaining unit of roughly 86 workers employed by the Salt Lake City construction company. After a hearing, the parties resolved most issues by stipulation, leaving only the question of whether the election should be held manually at the employer's facility or by mail ballot.

The employer argued for a manual election, citing the Board's general preference for in-person voting and noting that employees were already accustomed to traveling to job sites, so a trip to the facility to vote would not be burdensome. It proposed two two-hour voting sessions at its Salt Lake City office.

The union countered that a mail ballot was more appropriate because the employer's job sites are spread across a wide area of Northern Utah, with some more than two hours from the main facility, and because a substantial number of eligible voters, including laid-off former employees, do not regularly report to that facility at all.

The regional director agreed with the union. Citing San Diego Gas & Electric, the decision explained that mail ballots may be warranted when eligible voters are geographically scattered or when their schedules mean they are not reliably present at a common location at a common time. The record showed that of the unit's eligible voters, at least 17 were no longer actively employed and would have no regular occasion to travel to the facility, while many of the roughly 69 active employees worked at scattered job sites and kept inconsistent schedules, some working four ten-hour days and others five eight-hour days with varying start and end times. Because there was no assurance that a meaningful share of eligible voters would be at the facility at the same time, the director found that a mail ballot election would best ensure the greatest employee participation.

The decision also set the voting unit, eligibility criteria, and a timeline for mailing ballots in late August 2026 with counting scheduled for September 21, 2026, and it reminded the parties of their obligations regarding the voter list and notice posting, as well as their right to seek Board review of the ruling.

Significant Cases Cited

• San Diego Gas & Elec., 325 NLRB 1143 (1998): Held that a mail ballot election may be appropriate when eligible voters are geographically scattered or their schedules mean they are not present at a common location at common times, and outlined factors regional directors should weigh in choosing between manual and mail balloting.

• Aspirus Keweenaw, 370 NLRB No. 45 (2020): Reaffirmed the Board's general preference for manual elections because they allow in-person supervision and promote employee participation, while recognizing exceptions apply in certain circumstances.

• Daniel Construction Co., 133 NLRB 264 (1961): Established the eligibility formula used to determine which construction industry employees, given the transient nature of such work, qualify to vote in a representation election.

• Steiny & Co., 308 NLRB 1323 (1992): Refined and reaffirmed the construction industry voter eligibility formula for representation elections.

• Halliburton Services, 265 NLRB 1154 (1982): Recognized that the Board has delegated broad discretion over election arrangements, including the mechanics of voting, to its regional directors.

Southern Electric Corporation of Mississippi, 12-RC-360889 (Unpublished Board Decision)

The National Labor Relations Board denied an employer's request for review of a Regional Director's order in a representation case involving Southern Electric Corporation of Mississippi and the International Brotherhood of Electrical Workers, Local 222. The Regional Director had approved the union's withdrawal of one objection and portions of several others, overruled two objections, and directed a hearing on the remaining objections, which were consolidated with a related unfair labor practice case.

The employer's request for review focused only on the Regional Director's decision to send one objection, along with portions of two others, to a hearing. A Board majority consisting of Chairman Murphy and Member Prouty found no substantial issues warranting review, holding that Regional Directors have discretion under the Board's rules to determine which issues require a hearing when an offer of proof could establish grounds for setting aside the election. The majority noted it lacked access to the union's offer of proof and saw no abuse of discretion in the Regional Director's decision. Because an unfair labor practice hearing involving related conduct by the employer was already scheduled, the majority found no reason to delay proceedings for a supplemental decision, though it left the employer free to raise its legal arguments in that separate case.

Member Mayer dissented in part. He would have granted review of the objections alleging that two general foremen improperly served as election observers. Mayer explained that the general foremen were included in the stipulated bargaining unit, and that Board precedent generally does not hold an employer responsible for a unit supervisor's conduct absent evidence the employer encouraged or ratified it. He also pointed to precedent barring objections to an individual's status as an observer unless raised at the preelection conference, which he said did not happen here. In his view, the Regional Director's order failed to address this precedent or explain why the objections could support setting aside the election, and he would have remanded the matter for a supplemental decision.

Significant Cases Cited

• Craft Maid Kitchens, 284 NLRB 1042 (1987): An employer is generally not held responsible for the antiunion conduct of a supervisor included in the bargaining unit absent evidence the employer encouraged, authorized, or ratified that conduct.

• Alpha Baking Co., 344 NLRB 262 (2005): A party cannot object to an election based on an individual's supervisory status when that individual was included in a stipulated unit and cast an unchallenged ballot.

• Poplar Living Center, 300 NLRB 888 (1990): Reinforces that objections premised on an included unit member's supervisory status are barred where the individual voted without challenge.

• Liquid Transporters, Inc., 336 NLRB 420 (2001): A party seeking to challenge an individual's eligibility to serve as an election observer must raise the objection at the preelection conference.

McLaren Oakland, 07-RC-365793 (Unpublished Board Decision)

The Board denied the employer's requests for review of a regional director's decision certifying a union as the bargaining representative, finding no substantial issues warranted further review.

The dispute centered on a Stipulated Election Agreement that established the bargaining unit. After the election, the employer tried to challenge the unit's scope and argued the union had agreed to withdraw two of the three petitioned-for locations from the certified unit. The Board reaffirmed that stipulated election agreements are generally enforced and that a party may withdraw from one only with an affirmative showing of unusual circumstances or by agreement of both parties. It agreed with the regional director that the employer failed to show the union had actually agreed to any such withdrawal, particularly since there was no communication from the union itself confirming such an agreement. The Board also found that the employer's post-election objection to the unit's composition conflicted with established precedent barring parties from repudiating stipulated election agreements after the fact.

The Board went on to address the employer's alternative argument that even if the parties had reached an agreement to modify the unit, that modification should have been honored as a voluntary resolution. The Board explained that while parties to a bargaining relationship may voluntarily agree to modify a certified unit's scope during collective bargaining, such a modification cannot be a condition precedent to negotiations themselves. Because the employer had proposed to withdraw its improper post-election objection only if the union agreed to exclude the two locations, the Board found this amounted to conditioning bargaining itself on the unit change, an arrangement it declined to sanction due to concerns about gamesmanship.

Finally, the Board addressed case law cautioning against certifying a substantially different unit than the one voted on in the election. It found that concern did not require intervention here, since the parties remain free to voluntarily exclude the two locations from the unit through the bargaining process itself, without the Board formally modifying the certification after the election.

Significant Cases Cited

• Hampton Inn & Suites, 331 NLRB 238 (2000): Stipulated election agreements are generally enforced, and a party may withdraw from one only upon an affirmative showing of unusual circumstances or by agreement of the parties.

• Cruis Along Boats, Inc., 128 NLRB 1019 (1960): Parties may not repudiate or challenge the terms of a stipulated election agreement after the election has been conducted.

• Canterbury Gardens, 238 NLRB 864 (1978): Parties to a bargaining relationship may voluntarily modify the composition or scope of a certified bargaining unit during negotiations, but only if the modification is not made a condition precedent to those negotiations.

• Hamilton Test Systems v. NLRB, 743 F.2d 136 (2d Cir. 1984): Counsels against Board certification of a substantially different bargaining unit than the one in which the election was actually conducted.

HR Bristol, LLC, 10-RC-384480 (Unpublished Board Decision)

The Board denied an employer's request for review of a regional director's decision rejecting the employer's election objections as untimely, finding the request raised no substantial issues warranting review. The employer's separate request to stay certification of the union was denied as moot, and its motion for special leave to file a reply was also denied.

In a concurring footnote, one Board member agreed the acting regional director correctly applied the Board's existing rules in rejecting the late e-filed objections, but expressed openness to amending those rules to give regional directors discretion to accept late-filed objections in certain circumstances, citing the Board's general policy of favoring decisions on the merits over default.

Significant Cases Cited

• Paolicelli, 335 NLRB 881 (2001): Recognized that the Board's established policy favors determinations on the merits rather than by default.

Touchstone Climbing, Inc., 20-RC-369707 (Unpublished Board Decision)

The National Labor Relations Board denied Touchstone Climbing's request to review a regional director's decision directing elections at four separate facility-based bargaining units, finding the employer raised no substantial issues warranting review.

The employer had argued that a single-facility presumption should not apply because certain job classifications were dispatched from the company's headquarters to work across its various locations. The Board rejected this argument, noting that the employer cited no precedent supporting its position and that Board law has long held that roving employees do not negate the separate identities of individual facilities.

The Board also addressed the employer's burden in trying to overcome the presumption that single-facility units are appropriate. It agreed with the acting regional director that the employer failed to meet this "heavy burden," pointing to the significant local autonomy over employment decisions at each facility and the lack of meaningful interchange between employees at different locations. On the question of geographic distance between facilities, up to fifty miles apart in the Bay Area, the Board found this factor did not support the employer's position, particularly because the employer's own proposed unit would have combined the roving classifications with all facilities across the region, and because no party argued that any two geographically close facilities should be grouped together on their own.

In a footnote, the Board also clarified that while the acting regional director had relied in part on Audio Visual Services Group, LLC in listing factors relevant to rebutting the single-facility presumption, that case actually involved a petitioned-for multi-facility unit, a distinct legal question with its own test, though there is some overlap in the relevant factors.

Because the request for review was denied, the Board also denied as moot the employer's separate request to consolidate the case with two other pending cases.

Significant Cases Cited

• California Pacific Medical Center, 357 NLRB 197 (2011): Established that a party seeking to overcome the single-facility presumption bears a heavy burden.

• Trane, 339 NLRB 866 (2003): Listed the factors relevant to overcoming the single-facility presumption.

• RB Associates, 324 NLRB 874 (1997): Held that the existence of roving employees did not negate the separate identities of individual facilities under the single-facility presumption.

• Purnell's Pride, Inc., 252 NLRB 110 (1980): Found that roving employees did not defeat the appropriateness of single-facility units.

• Audio Visual Services Group, LLC, 370 NLRB No. 39 (2020): Addressed factors relevant to a petitioned-for multi-facility unit, a distinct inquiry from rebutting the single-facility presumption.

McLaren Port Huron, JD-50-26, 07-CA-354191 (ALJ Decision)

An administrative law judge found that a Michigan hospital violated the NLRA by taking too long to respond to a union's request for bargaining information and by failing to keep the union informed about the delay.

Local 332, International Brotherhood of Teamsters, was certified in July 2024 to represent a technical employee unit at McLaren Port Huron. In September 2024, the union's business representative sent the hospital a fourteen-item information request covering things like employee rosters, wage rates, work rules, benefit plans, and staffing data, information the union said it needed to prepare for upcoming contract negotiations. The hospital did not respond or acknowledge the request for about seven weeks, and only did so after the union sent a third follow-up email. Even then, the hospital's vice president of labor relations told the union only that the request was "voluminous" and would take time, without mentioning that the hospital had suffered a ransomware attack in August that disrupted its computer systems, or that it was simultaneously closing out its fiscal year. The hospital provided most of the requested information by early November, but did not complete its response to several items, including questions about sickness and accident benefits, until December 30, more than fifteen weeks after the original request.

The judge held that all of the requested information was presumptively relevant because it concerned the terms and conditions of employment of unit employees, so the union did not need to make any special showing of need. The central issue was whether the hospital's delay in providing it was reasonable. Citing Board precedent, the judge explained that an employer must either supply requested information in a timely fashion or adequately explain why it cannot, and that timeliness is judged by looking at the nature of the information, the difficulty of obtaining it, the length of the delay, the reasons for the delay, and whether the employer communicated those reasons to the union as they arose.

The judge credited the hospital's evidence about the ransomware attack and the resulting need to manually verify records, and found that this justified much of the delay in responding to most of the request, as well as additional time needed for two items requiring a manual review of employee timecards. However, the judge found the hospital offered no justification at all for taking more than fifteen weeks to respond to the request for sickness and accident benefit information, or for waiting over two months to tell the union that no such policy existed. The judge also found that the hospital's failure to tell the union about the ransomware attack, fiscal-year timing, or other obstacles until the unfair labor practice charge had already been filed amounted to a failure to communicate in good faith about the status of its response. Comparing the case to prior Board decisions, the judge noted that employers found not to have unlawfully delayed had promptly told unions what was slowing them down and kept them updated, something McLaren Port Huron did not do.

Based on these findings, the judge concluded that the hospital violated Section 8(a)(5) and (1) of the NLRA by unreasonably delaying its response to the union's information request. The recommended order requires the hospital to cease and desist from this conduct and to post a notice to employees describing their rights.

Significant Cases Cited

• Detroit Edison, 440 U.S. 301 (1979): An employer's duty to bargain includes providing relevant information a union needs to perform its duties as the employees' bargaining representative.

• Red Rock Casino Resort & Spa, 368 NLRB No. 52 (2019): Employee names, dates of hire, pay rates, job classifications, personnel policies, and benefit plans are presumptively relevant to a union's bargaining role.

• TDY Industries, LLC, 369 NLRB No. 128 (2020): An employer must supply requested information in a timely fashion or adequately explain why it will not be furnished, and untimely responses violate Section 8(a)(5) just as a refusal would.

• West Penn Power Co., 339 NLRB 585 (2003): The Board applies no per se rule on timing but asks whether the employer made a reasonable, good-faith effort to respond as promptly as circumstances allowed, and finds no undue delay where the employer periodically updates the union on status.

• Starbucks Corp., 373 NLRB No. 48 (2024): An eight-week failure to acknowledge an information request, followed by a failure to contemporaneously communicate reasons for further delay, supports a finding of unlawful delay.

DistroKid, LLC, 02-RD-364536 (Regional Election Decision)

The Regional Director resolved challenged ballots and objections arising from a decertification election at DistroKid, LLC, where employees voted on whether to continue union representation by the National Association of Broadcast Employees & Technicians. The mail-ballot count came back tied at 13 to 13, with four challenged ballots enough to affect the outcome.

The Union challenged one voter, Stephen Jaunzemis, as a supervisor under Section 2(11) of the NLRA. Because both parties agreed he met that definition, his ballot was excluded.

The remaining three challenges involved employees in job titles that were listed as eligible in the parties' Stipulated Election Agreement, but which the Union argued had been removed from the bargaining unit through an informal email exchange the parties had after an earlier certification of the same unit. The Union pointed to Brom Machine & Foundry Co., arguing that a decertification election must cover the same unit the union actually represents, even if a later stipulation describes the unit differently. The Employer countered that the email was only a tentative agreement never finalized in a signed contract, and that the parties' subsequent, unambiguous stipulation controlled, citing Desert Palace, Inc. The Regional Director agreed with the Employer, finding no case law extending Brom's rule to situations where the unit was allegedly altered by something short of a signed collective bargaining agreement. Relying on the principle from Barceloneta Shoe Corp. that election agreements are binding contracts, the Director ruled that the stipulation's unit description controlled and ordered the three ballots opened and counted.

On the Union's objections, the Director deferred ruling on an objection concerning a separate voter, Rebecca Helgeson, since opening the three now-eligible ballots could moot the issue. A second objection, alleging the Employer improperly assisted the decertification effort, was overruled. The only evidence offered was that the petition listed the Employer's address and email as the petitioner's contact information, which the Director found fell far short of showing the kind of active assistance, such as the notarization and processing help condemned in Am. Linen Supply Co., needed to taint an election. Under the standard described in Professional Transportation, Inc., the Union failed to meet its burden of presenting specific evidence sufficient to warrant a hearing.

The Director ordered the three ballots opened and counted and a revised tally prepared, with a further decision on objections to follow if Helgeson's ballot proves determinative.

Significant Cases Cited

• Brom Machine & Foundry Co., 227 NLRB 690 (1977): In a decertification election, the unit must match the one actually represented by the incumbent union, even if a later election agreement describes it differently.

• Desert Palace, Inc., 337 NLRB 1096, 1097 (2002): When a stipulated election agreement expresses the parties' intent in clear, unambiguous terms, the Board will simply enforce it as written.

• Barceloneta Shoe Corp., 171 NLRB 1333, 1343 (1968): Parties to an election agreement are bound by its material terms because such agreements are contracts.

• Professional Transportation, Inc., 370 NLRB No. 132 (2021): An objecting party bears the burden of presenting evidence sufficient to raise substantial and material factual issues to warrant a hearing.

• Am. Linen Supply Co., 297 NLRB 137 (1989): A withdrawal of recognition was tainted where the employer provided more than ministerial assistance, such as furnishing forms and notaries during work time.

The Milton Hershey School, 04-RC-371419 (Unpublished Board Decision)

The Board denied the Employer's request for review of a Regional Director's decision directing an election and certifying a union to represent employees at the Milton Hershey School, finding that the request raised no substantial issues warranting review.

The Board held that the Regional Director acted properly under Section 102.64(a) of the Board's Rules and Regulations when she deferred litigation over whether the facility's Telecommunicator Leads qualify as supervisors, rather than resolving that question before the election. Member Mayer joined this part of the ruling but noted he was applying the rule as it currently stands without weighing in on whether the underlying policy was correctly adopted.

The Board also rejected the Employer's argument that the Regional Director lacked authority to use her delegated powers during a period when the Board itself lacked a quorum. Citing its recent decision in Satellite Healthcare (Santa Rosa), the Board found this argument foreclosed.

Significant Cases Cited

• Satellite Healthcare (Santa Rosa), 374 NLRB No. 25 (2026): Held that a Regional Director may lawfully exercise delegated authority even during a period when the Board lacks a quorum.

Ralphs Grocery Company, the Kroger Co., 375 NLRB No. 25, 21-CA-073942 (Published Board Decision)

The Board addressed, on remand from the Ninth Circuit, whether a grocery chain's mandatory arbitration policy unlawfully restricted employees' rights under the NLRA. Two narrow questions were before the Board: whether the policy's confidentiality provision was lawful, and whether the policy interfered with employees' ability to access the Board and its processes.

The case traces back to a 2009 wage-and-hour lawsuit filed by security guard Terri Brown against Ralphs Grocery Company. Ralphs sought to compel arbitration under its Mediation and Binding Arbitration Policy, prompting Brown to file an unfair labor practice charge. In its original decision, Ralphs Grocery I, the Board found the arbitration policy unlawful on three grounds: it required employees to waive class or collective claims, it interfered with Board access, and it imposed an overbroad confidentiality requirement. While Ralphs' appeal was pending, the Supreme Court decided Epic Systems Corp. v. Lewis, holding that employer arbitration policies barring class or collective actions are lawful. The Ninth Circuit vacated the portion of the Board's order affected by that ruling and sent the remaining issues back to the Board.

On the confidentiality question, the Board majority (Chairman Murphy and Member Mayer) applied its precedent in California Commerce Club, which holds that the Federal Arbitration Act shields confidentiality rules governing how an arbitration is conducted, but not requirements that reach beyond the arbitration itself. Applying that framework, the majority found that requiring employees to keep the content and outcome of an arbitration confidential was lawful, since those requirements relate to the arbitration proceeding itself. But the requirement that employees keep even the existence of an arbitration confidential went too far, the majority reasoned, because it amounted to an open-ended gag order unconnected to the rules governing the arbitration and therefore violated Section 8(a)(1).

On Board access, the majority concluded the policy was lawful. The policy included a clause stating that, notwithstanding any other provision, employees retained the right to file charges with the NLRB and EEOC. Applying the Board's current standard from Stericycle for evaluating workplace rules, and relying on its reasoning in Anderson Enterprises, the majority found this savings clause prominent and clear enough that no reasonable employee would read the policy as blocking access to the Board or believe that filing a charge would be futile.

On remedy, the Board rejected Ralphs' argument that the case was moot because it had since revised the policy, finding no evidence employees were ever notified of any rescission. Because the General Counsel did not dispute that the offending language had already been removed from the current policy, the Board declined to order formal rescission and instead required a notice informing employees of the violation found.

Member Prouty dissented in part. He agreed that the "existence" confidentiality language was unlawful and that the "outcome" language was lawful, but would also have found the "content" confidentiality requirement unlawful, reasoning that it could reasonably be read to bar employees from discussing the facts and circumstances underlying their disputes with coworkers. He also disagreed with the majority on Board access, arguing that the policy's repeated statements that arbitration is the exclusive and binding method for resolving all disputes, combined with the savings clause's lack of prominence, would lead a reasonable employee to view filing a Board charge as a futile preliminary step rather than a real avenue for relief.

Significant Cases Cited

• California Commerce Club, Inc., 369 NLRB No. 106 (2020): Held that the Federal Arbitration Act shields arbitration confidentiality provisions that specify the rules governing the arbitration, but not provisions that extend confidentiality beyond the arbitration itself.

• Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018): Held that employer arbitration agreements barring class or collective actions in any forum are enforceable under the Federal Arbitration Act.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current Board standard for evaluating whether a workplace rule unlawfully interferes with Section 7 rights, asking whether an employee could reasonably interpret the rule as coercive.

• Anderson Enterprises, Inc. d/b/a Royal Motor Sales, 369 NLRB No. 70 (2020): Found that a sufficiently prominent savings clause preserving employees' right to file Board charges can render an arbitration agreement lawful despite broader language.

• Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019): Held that the Federal Arbitration Act does not authorize arbitration agreements that restrict employees' access to the Board or its processes.

X Factor S2 LLC, 375 NLRB No. 23, 31-CA-323348 (Published Board Decision)

The Board affirmed an administrative law judge's finding that X Factor S2 LLC, a television production company, unlawfully discharged four members of its grip and electrical crew after they moved to unionize a nonunion production. The General Counsel's sole exception concerned the remedial notice, arguing the judge had inadvertently left out language requiring the company to offer reinstatement to the four workers even though the underlying order already included that requirement. The Board agreed the omission needed to be corrected and substituted a new notice to conform to the violations found.

No party excepted to the judge's underlying finding that the company terminated employees Noah Kelly, Andrew Choe, Sean Hunt, and Steven Miller because they engaged in, or were believed to have engaged in, protected concerted and union activity involving IATSE Local 728. That finding stood undisturbed, leaving the Board's review focused on the scope of the remedy and the notice's wording.

Consistent with Vibe Consulting, LLC, the Board modified the notice-posting provision. It also ordered the company to compensate the four discharged workers, in line with Thryv, Inc., for any direct or foreseeable pecuniary harms tied to their firings, including reasonable search-for-work and interim employment expenses, regardless of whether those expenses exceeded their interim earnings. Chairman Murphy and Member Mayer noted, as they had in Performance Plumbing, LLC and Lodi Volunteer Ambulance Rescue Squad, Inc., that they continue to question whether the expanded remedies adopted in Thryv are permissible under the NLRA and would be open to revisiting that precedent, but agreed to apply it in the absence of a three-member majority willing to overrule it.

Significant Cases Cited

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

• Thryv, Inc., 372 NLRB No. 22 (2022): Requires employers found to have committed unlawful discharges to compensate affected employees for direct or foreseeable pecuniary harms beyond traditional backpay.

• Vibe Consulting, LLC, 374 NLRB No. 33 (2026): Provides the current standard notice-posting language the Board applied in modifying the remedial order here.

• Performance Plumbing, LLC, 374 NLRB No. 48 (2026): Reflects certain Board members' stated reservations about the scope of the Thryv remedies while still applying that precedent.

• Lodi Volunteer Ambulance Rescue Squad, Inc., 374 NLRB No. 26 (2026): Also notes openness to reconsidering Thryv in a future case absent a majority to overrule it.

Rhode Island CVS Pharmacy LLC, 375 NLRB No. 27, 01-CA-365034 (Published Board Decision)

The Board granted summary judgment against Rhode Island CVS Pharmacy LLC, finding that the company unlawfully refused to bargain with The Pharmacy Guild, International Association of Machinists and Aerospace Workers, AFL-CIO, after the union won certification elections at three Rhode Island store locations: Wakefield, Westerly, and Middletown.

The company had admitted it was not bargaining with the union but argued it had no obligation to do so, challenging the validity of the underlying certifications. It contended that the Westerly and Middletown bargaining units improperly included statutory supervisors, and that the Wakefield election should be set aside because of objectionable pro-union conduct by a supervisor. The Board rejected these arguments because all of the issues had already been raised, or could have been raised, in the earlier representation proceedings. Since the company did not present any newly discovered evidence or point to special circumstances justifying another look at those rulings, the Board held that it could not relitigate the same issues in this unfair labor practice case, citing Pittsburgh Plate Glass Co. v. NLRB.

The company also raised a series of constitutional defenses, including claims that the Board's structure violates separation of powers, that a hearing would violate due process and jury-trial rights, and that the Board lacks authority to decide those constitutional questions itself. The Board found these arguments were asserted without any supporting explanation or evidence and were therefore insufficient to block summary judgment.

Having found the company violated Section 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with the union since March 3, 2025, the Board ordered it to bargain on request with the union for all three units, to sign any agreement reached, and to post and distribute a notice to employees. The Board also adjusted the certification dates to reflect when the Regional Director actually issued each certification, and specified that the one-year certification period for bargaining will run from whenever the company begins bargaining in good faith, consistent with standard Board remedy practice.

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 cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): When an employer unlawfully refuses to bargain after a certification, the one-year certification period is measured from the date the employer actually begins bargaining in good faith, not from the certification date.

• Frontier Hotel, 265 NLRB 343 (1982): The Board may take official notice of the record in a related representation proceeding when deciding a companion unfair labor practice case.

• Sysco Central California, Inc., 371 NLRB No. 95 (2022): Bare, unsupported assertions in an answer or defense are insufficient to raise a litigable issue warranting denial of summary judgment.

• Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58 (2018), enfd. sub nom. Operating Engineers Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020): Reaffirms that unsupported constitutional and procedural defenses do not require a hearing before granting summary judgment in a refusal-to-bargain case.

Autofit Inc., JD(SF)-42-26, 16-CA-355961 (ALJ Decision)

An administrative law judge has found that Autofit Inc. unlawfully fired a Houston employee weeks into her employment for discussing pay with a coworker, rejecting the auto parts company's claims that she was let go for stealing sales commissions and being a poor fit.

Daniela Irene Melendez was hired as an administrative assistant at Autofit's Houston location in September 2024 but initially worked in sales, as new hires typically did. Within her first few days on the job, she told a longtime coworker, identified in the decision only as Gabby, how much she was being paid. Gabby, who had worked at the company for nine years and had never earned that much, grew visibly upset and walked to the office of the company's Chief Logistics Officer to ask about the administrative assistant job and a raise. She was turned down. About two weeks later, Autofit terminated Melendez, telling her only that her position had been filled by someone else.

When Melendez later sought unemployment benefits, the company's administrative assistant, acting on the company's behalf in responding to a Texas Workforce Commission inquiry, gave a different account: Melendez was fired for a mix of reasons, including sharing sensitive information such as pay and general difficulties with coworkers. Autofit later argued at trial that Melendez had actually been fired for stealing commissions from two other salespeople and for personality conflicts, and it argued the administrative assistant lacked authority to speak for the company and had merely used ChatGPT to draft a response without real knowledge of the reasons for termination.

The judge rejected these arguments. She found the administrative assistant acted with the company's apparent authority both in carrying out the termination and in submitting the unemployment response, so her statements were properly attributed to Autofit. The judge also found much of the company's evidence not credible, including testimony from an assistant manager about the alleged commission thefts, which was inconsistent, uncorroborated, and appeared to shift over time as the case progressed. The company's Chief Logistics Officer, who made the termination decision, did not testify as a fact witness, and the judge drew an adverse inference from that absence.

Applying the Board's Wright Line framework, the judge concluded Autofit knew about Melendez's pay discussion and held animus toward it, pointing to the timing of the firing, the shifting and unsupported reasons offered for it, and the company's departure from its normal practice of having managers resolve sales disputes rather than treating them as terminable theft. The judge found the company's stated reasons for firing Melendez were pretextual and that it failed to show it would have fired her absent the protected conversation about pay. The judge separately concluded that under the Board's Burnup & Sims standard, the company could not justify the firing as a response to misconduct, because sharing pay information is protected activity, not misconduct.

The judge ordered Autofit to offer Melendez reinstatement, make her whole for lost earnings and other financial harms with interest, remove references to the discharge from her personnel file, and post a notice to employees at its Houston facility. The judge also rejected numerous affirmative defenses raised by the company, including claims that the Board's structure is unconstitutional and that the case was improperly delayed.

Significant Cases Cited

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

• Burnup & Sims, 379 U.S. 21 (1964): Held that discipline of an employee for alleged misconduct during protected activity is unlawful unless the employer proves the misconduct actually occurred.

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Recognized that wages are a vital term and condition of employment central to protected concerted activity for mutual aid or protection.

• Meyers Industries, 281 NLRB 882 (1986): Defined concerted activity as encompassing efforts by employees to initiate, induce, or prepare for group action, including bringing group complaints to management.

• Cordua Restaurants, Inc. v. NLRB, 985 F.3d 415 (5th Cir. 2021): Explained how shifting or unsupported explanations for an adverse employment action can support a finding of pretext and unlawful motive.

Babson College, 01-RC-374712 (Regional Election Decision)

A regional director of the National Labor Relations Board has directed an election for a bargaining unit of police officers, community service officers, detectives, parking enforcement officers, community engagement officers and police sergeants at Babson College's campus police department, rejecting the employer's argument that the six patrol sergeants should be excluded as supervisors or managerial employees.

The American Coalition of Public Safety petitioned to represent the unit. Babson College argued the sergeants should be carved out because they assign work, discipline employees, responsibly direct staff, effectively recommend promotions, and adjust grievances, and separately because they hold managerial status. The regional director found the college failed to meet its burden on every one of these grounds.

On assignment, the decision explains that sergeants do not set officers' shift times, since scheduling runs through an annual seniority-based bid managed by the patrol lieutenant, and that mandatory overtime is governed by a seniority-based "force list" that leaves sergeants with only a routine, clerical role. The evidence also showed officers frequently chose their own patrol assignments, sometimes settling disputes among themselves by playing Rock-Paper-Scissors, undercutting any claim that sergeants exercised independent judgment in assigning duties. Isolated examples, such as a sergeant directing officers during a single incident or discretion described for responding to forced door alarms, were deemed discrete, ad hoc tasks rather than the kind of significant overall assignment that confers supervisory status under Oakwood Healthcare, Inc.

The decision similarly rejected the claim that sergeants "responsibly direct" other employees, finding no evidence that sergeants face real consequences when the officers they oversee perform poorly. On discipline, the ruling notes that the department's written policy is mere "paper authority," and that the one documented example of a verbal warning was actually drafted by a human resources manager, with the sergeants playing only an administrative role. The decision also found the department's disciplinary system does not qualify as a defined progressive system because it explicitly reserves the right to skip steps or impose maximum punishment for a first offense, and because witnesses could not identify consistent guidelines for escalating discipline.

On promotions, the regional director found that sergeants' role on interview panels and in submitting written recommendations does not amount to effective recommendation, since the police chief and deputy chief independently interview candidates and make the final decision themselves. On grievances, the decision concludes that sergeants' involvement in performance evaluations and informal problem-solving, such as helping resolve a minor complaint about a reorganized workspace, falls short of the kind of grievance adjustment required for supervisory status, and that secondary indicia like higher pay and timecard approval cannot establish supervisory status without evidence of at least one primary statutory authority. Finally, the decision found the sergeants' input on a departmental staffing policy did not amount to the kind of independent policy-making discretion required for managerial status under NLRB v. Yeshiva Univ.

The regional director accordingly directed a secret-ballot election among the petitioned-for unit, including the sergeants, to be held on August 26, 2026.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined the statutory terms "assign," "responsibly direct," and "independent judgment" used to determine supervisory status.

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

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Held that job descriptions and other "paper authority" alone cannot establish actual supervisory authority.

• Veolia Transportation Services, 363 NLRB 902 (2016): Held that disciplinary authority must lead to personnel action without independent investigation by upper management, and that warnings only count as discipline if they automatically trigger job-affecting consequences under a defined progressive system.

• NLRB v. Yeshiva Univ., 444 U.S. 672 (1980): Established that managerial status requires taking or recommending discretionary actions that effectively control or implement employer policy.

On August 7, 2026, the Senate confirmed James Macy to the National Labor Relations Board and reconfirmed David Prouty, 51 to 47, as part of a block of nominations. Macy's arrival brings the Board to four members of five and gives it a 3 to 1 Republican majority: Chairman James Murphy, Member Scott Mayer, and Member Macy on one side, Member Prouty on the other. By Board custom it takes three affirmative votes to overturn precedent, and until this week only three members were seated, so Murphy and Mayer could not get there.

For the seven months since the Board regained its quorum on January 7, 2026, Murphy and Mayer have been attaching footnotes to decisions that name a precedent they would revisit once a third vote existed. This post catalogues every one of those flags. Being on this list is not a prediction that any precedent will be overruled. A footnote is a signal, not a holding. Nothing here has been overruled, every case on the list remains binding law today.

Union elections and representation

• Sec. 103.20 (blocking-charge policy) (15 decisions) - Regional directors must hold decertification and other Board election petitions in abeyance, and withhold or impound the ballots already cast, whenever a related unfair labor practice charge is pending against the party seeking the election.

• Rieth-Riley Construction Co., 371 NLRB No. 109 (7 decisions) - Regional directors may dismiss a decertification petition, subject to later reinstatement, whenever they find merit in a pending unfair labor practice charge that would taint the petition or the election, without first holding a hearing when the alleged misconduct affected the whole bargaining unit.

• American Steel Construction, Inc., 372 NLRB No. 23 (6 decisions) - An employer challenging a petitioned-for bargaining unit as too narrow must prove the excluded employees share an overwhelming community of interest with the unit, restoring this heightened standard over a looser one used since 2017.

• Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (3 decisions) - Once a union demonstrates majority support among employees in an appropriate unit, an employer must recognize and bargain with it unless the employer promptly files a petition for a Board-conducted election to test that support, replacing the prior rule letting employers insist on an election in almost every case.

• Harborside Healthcare, Inc., 343 NLRB 906 (3 decisions) - Holds that a supervisor's prounion conduct, including soliciting union authorization cards, is objectionable and can void an election if it reasonably tends to coerce employees' free choice and materially affects the outcome, without requiring proof of an explicit threat or promise.

• The merger doctrine (3 decisions) - When two unions merge, the surviving union automatically inherits the predecessor union's certification and bargaining rights without a new election, so long as the merger process gave members fair notice and a vote and kept substantial continuity between the old and new organizations.

• Sec. 102.64(a) (3 decisions) - A regional director may defer resolution of individual employees' supervisory or eligibility status until after an election rather than litigating it beforehand, so long as those individuals make up a small enough share of the proposed unit that including or excluding them could not significantly change its size or character.

• UGL-UNICCO Service Co., 357 NLRB 801 (1 decision) - When a successor employer recognizes an incumbent union, the union's majority status cannot be challenged by an election petition or unilateral withdrawal of recognition for a reasonable bargaining period, generally six months, overruling an earlier decision that had rejected any such insulated period after a business succession.

• Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (1 decision) - Overruled Tri-Cast to require that employer campaign statements about how unionization would change the employer-employee relationship be judged case by case, lawful only if carefully phrased on objective fact to convey demonstrably probable consequences beyond the employer's control.

• Signet Testing Laboratories, 330 NLRB 1 (1 decision) - The Board applies the special construction industry voter-eligibility formula from Daniel Construction and Steiny to all construction industry representation elections unless the parties expressly stipulate otherwise, even where their election agreement recites only the standard eligibility language.

Remedies

• Thryv, Inc., 372 NLRB No. 22 (30 decisions) - Whenever the Board's standard remedy for an unfair labor practice includes make-whole relief, it must also expressly require the employer to compensate affected employees for all direct or foreseeable financial losses caused by the violation, not just lost wages.

• Noah's Ark Processors, LLC d/b/a WR Reserve, 372 NLRB No. 80 (1 decision) - In cases where a respondent shows a proclivity to violate the Act or has engaged in egregious or widespread misconduct warranting a broad cease-and-desist order, the Board may impose expanded remedies such as reading the notice aloud, mailing and publishing it, extending the posting period, requiring supervisors to attend the reading, and requiring a company official to sign it.

• Pressroom Cleaners, 361 NLRB 643 (1 decision) - A successor employer that avoids its bargaining duty through discriminatory hiring must keep paying the predecessor's wages and benefits until the parties bargain to agreement or impasse, and cannot prove in compliance proceedings that lawful bargaining would have yielded lower terms, overruling contrary precedent.

Work rules and employee speech

• Amazon.com Services LLC, 373 NLRB No. 136 (15 decisions) - Overruling Babcock & Wilcox, this precedent holds that an employer violates the Act when it requires employees, under threat of discipline or discharge, to attend a meeting where the employer expresses its views on unionization.

• McLaren Macomb, 372 NLRB No. 48 (1 decision) - Merely offering a severance agreement whose confidentiality or non-disparagement clauses broadly restrict employees from discussing the employer, their employment, or the agreement's own terms itself violates labor law, regardless of whether the employee actually signs it.

• Sunbelt Rentals, Inc., 372 NLRB No. 24 (1 decision) - In preparing an employer's defense to an unfair labor practice charge, an employer may question employees about their protected activity only if it discloses the purpose of the questioning, assures the employee that no reprisal will follow, obtains voluntary participation, avoids a hostile or otherwise coercive setting, and limits the questions to what the defense requires, with any departure from these steps making the interrogation automatically unlawful.

• Home Depot, 373 NLRB No. 25 (1 decision) - An employee's individual conduct counts as concerted activity under Section 7 when it is a logical outgrowth of prior group complaints, without proof that coworkers specifically authorized it, and protests of racial discrimination in the workplace qualify as mutual aid or protection.

Board procedure

• Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (6 decisions) - Overruled UPMC and ended the Board's practice of approving a consent order that a respondent proposes over the objection of the General Counsel and the charging party, requiring such cases instead to be fully litigated and adjudicated on the merits.

• Sec. 102.5(c) (E-filing requirement) (1 decision) - Board rules require parties to file documents with the Agency by E-filing according to the instructions on the Board's website, and treat a filing as received only when it is properly E-filed, not when merely emailed to a regional office.

• The Skip Counsel Policy, §10058.2 of the Board's Casehandling Manual, Part One, Unfair Labor Practice Proceedings (1 decision) - This precedent describes the Board's internal Casehandling Manual guidance directing Board attorneys to avoid communicating with a represented party without going through its counsel, tracking the ethical rule against contacting a represented party directly, and stated as nonbinding agency guidance rather than a formal rule requiring notice-and-comment rulemaking.

• The "like or related to" settlement-breach doctrine (1 decision) - Under a settlement agreement's standard default clause, if a respondent later commits conduct that is merely similar to or connected with the originally settled unfair labor practices, the Board treats the settlement as breached and enters default judgment on the original allegations without a hearing on the new conduct.

Bargaining obligations

• Valley Hospital II, 371 NLRB No. 160 (4 decisions) - An employer must continue deducting and remitting union dues under a checkoff arrangement after the collective-bargaining agreement expires, treating dues checkoff like most other contract terms that survive expiration rather than as an exception employers may end unilaterally.

• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (1 decision) - Overruled the contract-coverage test and restored the rule that an employer may act unilaterally on a mandatory bargaining subject only where the union clearly and unmistakably waived its right to bargain over that subject, not merely where a contract clause broadly covers it.

• Finley Hospital, 362 NLRB 915 (1 decision) - An employer may not unilaterally change a term of employment after a contract expires unless the union clearly and unmistakably waived its bargaining right, and generic language merely limiting a provision to the contract's duration does not meet that standard.

Who counts as an employer or employee

• Browning-Ferris I, 362 NLRB 1599 (1 decision) - Two entities are joint employers whenever either possesses sufficient control, even if only reserved, exercised indirectly, or never actually exercised, over workers' essential terms and conditions of employment to permit meaningful bargaining.

• Brusco Tug & Barge Co., 359 NLRB 486 (1 decision) - Under Section 2(11), an employee who gives coworkers routine, on-the-spot instructions to carry out discrete tasks is not a supervisor unless the employer proves those instructions require independent judgment and the instructor faces real consequences for how the work turns out.

• Cook Inlet Tug and Barge, Inc., 362 NLRB 1153 (1 decision) - Employees are not statutory supervisors merely because they direct or select coworkers for tasks unless the employer proves they exercise independent judgment in doing so and are held accountable for those workers' performance, not just their own.

• Ukiah Valley Medical Center, 332 NLRB 602 (1 decision) - Under RFRA, the Board may assert jurisdiction over a religiously-affiliated health care institution despite a substantial burden on its free exercise of religion, because preventing labor strife and protecting employees' organizing and bargaining rights are compelling interests served by the least restrictive means.

Starbucks Corporation, 375 NLRB No. 28, 19-CA-295850 (Published Board Decision)

The Board majority reversed an administrative law judge and dismissed a complaint alleging that Starbucks unlawfully threatened employees over their ability to pick up shifts at other stores based on union status.

Starbucks employees are typically scheduled for fewer than 40 hours a week at their assigned “home store” and routinely “borrow” shifts at other locations to make up hours. In January 2022 the company rolled out an online tool called Shift Marketplace to facilitate this borrowing, and none of the training materials or guides limited borrowing based on whether an employee’s home store was unionized.

Barista Alejandra Toscano’s home store, the Holman Road location in Seattle, was unionized in May 2022. She continued borrowing shifts at the nonunion Green Lake store afterward. When coworkers there told her she would no longer be able to pick up shifts because her home store had unionized, Toscano confronted Green Lake manager Chelsea Zapata. Zapata said she had heard at a meeting with other managers and company lawyers that unionized and nonunion stores could not borrow from each other, but she immediately added that she “didn’t know exactly what was true,” saw no problem with the practice, and told Toscano she could keep borrowing shifts. In a follow-up text exchange days later, Zapata repeated that she wasn’t sure what was accurate and told Toscano she was “always welcome” at Green Lake. Toscano kept borrowing shifts without interruption and later transferred permanently to Green Lake.

The judge found this exchange amounted to an unlawful threat to eliminate an existing benefit in violation of Section 8(a)(1). The Board majority disagreed, holding that Zapata’s equivocal, employee-prompted remarks, paired with her repeated assurances that borrowing could continue, lacked a reasonable tendency to coerce. The majority emphasized that no company-wide restriction was ever implemented or announced, that Starbucks’s own guidance documents never limited borrowing based on union status, and that Zapata was a low-level manager who hedged rather than announcing a new policy. The majority distinguished the case from prior rulings, including other Starbucks cases from around the same period, because those involved unprompted threats made during active organizing drives, whereas here Toscano initiated the conversation and Zapata committed to preserving the status quo. The majority cited The Singer Co. in support of treating an equivocal statement as non-coercive.

Member Prouty dissented, arguing that the totality of the circumstances still supported finding a threat. He reasoned that a threat’s coercive effect does not depend on whether it is later carried out, that Zapata’s uncertainty and assurances did not erase the chilling effect of relaying that company lawyers had described a borrowing restriction, and that the timing, six days after the union’s certification, heightened the impact. He also pointed to other Board decisions finding that Starbucks made similar borrowing-related threats at stores elsewhere in the country around the same time, arguing this broader pattern supported treating Zapata’s comments as coercive. The decision also notes that Starbucks sought Member Prouty’s recusal based on his past ties to SEIU-affiliated unions, but he declined to step aside after consulting with the Board’s ethics official.

Significant Cases Cited

• Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Statements alleged to violate Section 8(a)(1) are judged by whether they have a reasonable tendency to coerce employees, considering the totality of the circumstances, regardless of intent or actual effect.

• The Singer Co., 199 NLRB 1195 (1972): A manager’s equivocal statement about a possible plant closure was too tentative to constitute an unlawful threat.

• Daikichi Sushi, 335 NLRB 622 (2001): An employer’s prediction of adverse consequences from unionization can be unlawfully coercive even when phrased as a possibility rather than a certainty.

• Holy Cross Hospital, 370 NLRB No. 16 (2020): An employer unlawfully threatened an employee by suggesting that unionizing could make leave policies less generous and scheduling less flexible.

• Metro One Loss Prevention Services Group, 356 NLRB 89 (2010): An employer unlawfully threatened employees by suggesting that pay and conditions could get worse if they unionized.

Covenant House New York, 375 NLRB No. 21, 02-CA-337831 (Published Board Decision)

The Board affirmed an administrative law judge's finding that a New York City nonprofit serving homeless youth violated the NLRA in its dealings with a union representing its professional and nonprofessional staff. The employer did not contest the underlying violations on appeal, instead arguing that two employees on the union's bargaining committee were managers whose participation tainted the process, and that Board investigators had improperly interviewed those employees without the employer's counsel present.

The Board rejected both arguments for the reasons already given by the judge. It also addressed, for the first time, the employer's broader challenge to the Board's "Skip Counsel Policy," which governs how agency staff may interview individuals whose status as a supervisor or party agent is uncertain during an unfair labor practice investigation. The Board held the policy consistent with American Bar Association Model Rule 4.2 on contacts with represented parties, noting the rule allows communication with the represented person's counsel's consent or as authorized by law, and that a comment to the rule permits investigative contacts by government lawyers before civil enforcement proceedings. The Board also rejected the argument that the policy needed formal notice-and-comment rulemaking, since it is nonbinding internal guidance rather than a binding rule. One member indicated he might be open to revisiting the policy's protections in a future case, but agreed it provided no basis to overturn the findings here.

On the merits found below and not excepted to, the judge determined that the employer failed and refused to bargain in good faith by cancelling sessions, refusing to make proposals, insisting the union remove certain bargaining committee members, and eventually refusing to bargain at all; that it unlawfully withheld information the union needed to represent employees; and that it unlawfully threatened employees with discipline for engaging in union activity. Central to the case was the employer's claim that its director of development and communications and its program compliance coordinator were "managerial" employees who could not lawfully sit on the union's bargaining committee. The judge found, based on detailed testimony about their actual duties, that both employees exercised no independent discretion to depart from policies set by senior executives, and so were neither managers, supervisors, nor confidential employees under the Act. The judge further ruled that the employer could not shortcut this factual inquiry by "admitting" managerial status in its answer, since the burden of proving such status rests with the party asserting it, and the employer had never raised the issue during the earlier representation proceeding where it agreed to include these job titles in the unit.

The Board modified the recommended order to correct clerical errors regarding dates and to conform to standard remedial language, and ordered the employer to bargain with the union, produce the requested information, and post a notice to employees at its facilities across the Bronx and Manhattan.

Significant Cases Cited

• NLRB v. Yeshiva University, 444 U.S. 672 (1980): Defines managerial employees as those who formulate and effectuate management policy by making and expressing operative decisions on the employer's behalf.

• NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956): Establishes that employers must supply unions with information relevant and necessary to their duties as collective-bargaining representative.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Sets out the framework for determining supervisory status under Section 2(11), including the requirement of independent judgment.

• NLRB v. Katz, 369 U.S. 736 (1962): Holds that conduct reflecting a mindset against reaching agreement, or that obstructs the bargaining process, violates the duty to bargain in good faith.

• I.O.O.F. Home of Ohio, Inc., 322 NLRB 921 (1997): Bars a respondent in a refusal-to-bargain case from relitigating unit or supervisory-status issues that were or could have been resolved in the prior representation proceeding.

SSM Health Saint Louis University Hospital, 375 NLRB No. 26, 14-RD-347354 (Published Board Decision)

The Board granted an employer's request for review of a Regional Director's decision dismissing a decertification petition on contract-bar grounds, and on review reversed that determination, finding the underlying collective-bargaining agreement lacked bar quality.

The employer and the union had operated under a contract that expired in mid-2023 and began negotiating a successor agreement. At their final bargaining session, the parties signed a tentative agreement that left blanks in place of the actual effective and expiration dates, instead using placeholder language such as "[Insert date of ratification]" and "[TBD one year after final wage increase]." The union's membership ratified the agreement days later, and a nurse then filed a decertification petition before the parties went back and filled in the missing dates. The Regional Director dismissed the petition, concluding the newly ratified contract barred it.

The Board disagreed, holding that both the effective date and the expiration date of a contract must be determinable from the face of the document itself, without resort to outside evidence, in order for the agreement to bar an election petition. Because the agreement here contained only blanks and instructions to insert dates, rather than the dates themselves, an employee or rival union reviewing the document could not determine when the window period for filing a petition would open. The Board distinguished cases the union and the Regional Director relied on, explaining that those decisions permitted extrinsic evidence only to establish when an already-dated agreement was signed, not to supply a missing effective or expiration date altogether. The Board also rejected reliance on Swift & Co. and Merico, Inc., noting that both involved agreements with dates clearly stated on their face, unlike the blank template at issue here. Because the union, as the party asserting the contract bar, failed to meet its burden of showing the agreement had bar quality, the Board reversed the dismissal and remanded the case for processing of the decertification petition.

Member Prouty dissented, arguing that the agreement's terms were sufficient because it expressly stated the contract would take effect upon ratification and expire based on a formula tied to the ratification date. In his view, the ratification date was not parol evidence altering the contract's terms but simply a fact needed to apply terms already stated on the document's face, and requiring parties to later reinsert that date into the agreement was an unnecessary formality.

Significant Cases Cited

• South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375 (2005): Held that both the effective date and expiration date of a contract must be apparent from the face of the document, without resort to parol evidence, for the contract to serve as a bar.

• Jackson Terrace Associates, 346 NLRB 180 (2005): Permitted extrinsic evidence to establish the execution date of an agreement that already contained a stated effective date and termination date.

• Cooper Tank & Welding Corp., 328 NLRB 759 (1999): Allowed extrinsic evidence of when the parties signed an undated signature page on a contract that undisputedly contained an effective date.

• Swift & Co., 213 NLRB 49 (1974): Held an employer could rely on a union's representation that ratification, a condition precedent, had properly occurred where the agreement already stated definite effective and expiration dates.

• Merico, Inc., 207 NLRB 101 (1973): Held a tentative agreement making ratification a condition precedent did not bar a rival petition because the agreement was never ratified before the petition was filed.

Overseas Shipholding Group, Inc., 375 NLRB No. 24, 12-CA-386056 (Published Board Decision)

The Board granted summary judgment against Overseas Shipholding Group, Inc. for refusing to bargain with the International Organization of Masters, Mates & Pilots after the union was certified as the exclusive bargaining representative of a unit of licensed deck officers on the company's U.S.-flag vessels.

The union won a mail-ballot election conducted between June and October 2024, and the Regional Director certified it as the unit's representative on October 31, 2024. The company sought Board review of the underlying representation decision, which the Board denied in March 2026. When the union then requested bargaining, the company refused, prompting the General Counsel to file an unfair labor practice complaint alleging violations of Section 8(a)(5) and (1) of the NLRA.

In its defense, the company admitted refusing to bargain but argued the refusal was not unlawful because the certified unit was inappropriate, an argument it had already raised and lost in the representation case. The Board held that this issue, along with any other representation questions, had already been fully litigated and could not be reheard in the unfair labor practice proceeding absent newly discovered evidence or special circumstances, neither of which the company offered. The company's admission that it refused to bargain was itself enough to establish the violation.

The Board also rejected several constitutional arguments the company raised, including claims that the Board's structure violates separation-of-powers principles by insulating administrative law judges, Regional Directors, and Board members from removal, that the Board improperly delegated authority to Regional Directors, and that Board proceedings violate Article III and the Seventh Amendment by adjudicating private rights without a jury. The Board found these assertions unsupported by any explanation or evidence and insufficient to defeat summary judgment.

Having found the refusal to bargain unlawful, the Board ordered the company to bargain with the union on request and, to ensure employees receive the full benefit of their certification year, ruled that the certification period will run from the date the company actually begins bargaining in good faith. The company must also post and electronically distribute a notice to employees describing the violation and their rights under the NLRA.

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 cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): When an employer unlawfully refuses to bargain after certification, the certification year is measured from the date bargaining actually begins in good faith, not from the certification date.

• Randalls Food & Drug, L.P., 369 NLRB No. 100 (2020): An employer's admission that it refused a union's bargaining request is sufficient by itself to establish a violation of the Act.

• Frontier Hotel, 265 NLRB 343 (1982): The Board may take official notice of the record in a related representation proceeding when deciding a refusal-to-bargain case.

• Sysco Central California, Inc., 371 NLRB No. 95 (2022): Bare constitutional challenges to the Board's structure or authority, unsupported by explanation or evidence, do not warrant denial of summary judgment.

United Food & Commercial Workers Local 7, AFL-CIO, JD-49-26, 27-CA-327689 (ALJ Decision)

An administrative law judge has found that a Colorado local of the United Food and Commercial Workers unlawfully suspended and fired one of its own employee-union representatives after he testified against the union in an earlier NLRB trial, and separately found that the union tried to get a grocery store to punish him based on a false threat report.

Randy Blea spent more than a decade as a union representative for UFCW Local 7, handling grievances and member issues at Denver-area grocery stores. He was also a steward for the union representing Local 7's own employees. In August 2023, Blea testified for the General Counsel and that employee union in an unrelated unfair labor practice case against Local 7, describing harsh treatment of representatives during a 2022 strike. A week later, Local 7 suspended him pending an investigation into his job performance, and two weeks after that, it fired him, citing complaints from union members and past disciplinary history.

The judge concluded the timing and Local 7's own conduct showed the real motive was retaliation for Blea's testimony and union activity, not performance. The judge noted that Local 7 never told Blea before his testimony that it was investigating his overall performance, and that its account of when the probe began was uncorroborated, since it did not call its president, Kim Cordova, to testify. The judge also found that Local 7 treated Blea far more harshly than other representatives with worse disciplinary records, several of whom kept their jobs or were allowed to resign after multiple suspensions, while Blea was discharged based on a single suspension over a year earlier. Statements by retail director Ramon Zuniga, including a remark to Blea about not "recording him like" a witness from the earlier case, further supported a finding of animus. Applying the Wright Line framework, the judge held Local 7 failed to prove it would have fired Blea absent his protected conduct.

The decision also addressed events after Blea took a new job at a King Soopers store still represented by Local 7. A union representative named Tom Olson confronted Blea over fliers critical of Cordova, and Blea told him to back off. Olson then reported to King Soopers that Blea had threatened him with physical violence, a claim a store investigation found unsubstantiated, and a Local 7 supervisor asked the store whether Blea had been suspended over the alleged threat. The judge found this violated the NLRA's restrictions on unions causing employers to discriminate against employees, concluding Olson fabricated or exaggerated the threat in retaliation for Blea's perceived support of dissident union activity. A separate allegation, that a Local 7 official improperly raised Blea's criminal background with King Soopers months later, was dismissed as untimely, a point the General Counsel conceded.

The judge also rejected Local 7's argument that Blea's backpay should be cut off based on later-discovered claims that he told another employee to falsify a hiring date to avoid back dues, finding the evidence uncorroborated and not credible. The recommended remedy includes full reinstatement, back pay with interest, compensation for related expenses and tax consequences, and removal of references to the suspension and discharge from Blea's personnel file.

Significant Cases Cited

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

• Caravan Knight Facilities Mgmt., Inc., 362 NLRB 1802 (2015): Holds that when a union causes an adverse employment action, a rebuttable presumption of unlawful motive arises unless the union shows it acted in good faith on rational considerations tied to its representational duties.

• Acklin Stamping, 351 NLRB 1263 (2007): Recognizes that a union has a legitimate interest in reporting genuine threats of physical harm to an employer as part of its duty to represent all unit employees.

• SPFPA Local 444, 360 NLRB 430 (2014): Found a union violated the Act when an official gave an employer an exaggerated and misleading account of an employee's conduct.

• Tel Data Corp., 315 NLRB 364 (1994): Sets the standard for the after-acquired evidence doctrine, under which reinstatement and backpay can be limited only if the employer proves the employee engaged in misconduct that would have led to discharge.

Sutter VNA and Hospice Dba Sutter Care at Home (Alameda Hospice), 32-RC-388749 (Regional Election Decision)

A National Labor Relations Board regional director has directed a self-determination election that would let two currently unrepresented job classifications at a Bay Area hospice provider decide whether to join an existing union-represented bargaining unit.

The case arose after the National Union of Healthcare Workers, which already represents a mixed unit of professional and non-professional employees at Sutter Care at Home's Alameda hospice location, petitioned to add Bereavement Counselor III and Volunteer Program Specialist employees to that unit. Because both sides agreed the petitioned-for group was a distinct and identifiable segment of the workforce, the only question was whether these two classifications share a community of interest with employees already in the union's unit, the standard required for what's known as an Armour-Globe self-determination election.

The employer, Sutter VNA and Hospice, missed the deadline to file its statement of position and was barred from actively litigating the case, though its hospice administrator testified and its exhibits were admitted into the record.

The regional director walked through the traditional community-of-interest factors: departmental organization, interchange and contact among employees, functional integration, similarity of skills and duties, common supervision, and shared terms of employment. She found the Bereavement Counselor III position overlaps heavily with the already-represented Bereavement Counselor II role, sharing an office, a caseload system, licensing requirements, and job duties, with employees regularly filling in for one another. That classification was found to share a strong community of interest with the existing unit on nearly every factor.

The Volunteer Program Specialist presented a closer question. That role does not interchange with unit employees and performs largely distinct duties overseeing the hospice's volunteer program, weighing against inclusion. But the position is commonly supervised by the same hospice administrator, works from the same office, attends the same interdisciplinary care meetings, and is functionally integrated with the existing unit's clinical and psychosocial staff, coordinating volunteer visits with nurses, chaplains, and social workers and sharing similar wages and benefits. Citing Board precedent holding that a petitioned-for group need only share a community of interest with a minority of the existing unit rather than the whole unit, the regional director found this sufficient for inclusion.

Because both classifications are professional employees, the ballot will ask them first whether they wish to be included with non-professional employees in a single unit, and second whether they wish to be represented by the union. The self-determination election was scheduled for August 12, 2026, at the employer's Alameda facility.

Significant Cases Cited

• Armour & Co., 40 NLRB 1333 (1942): Established, along with Globe Machine & Stamping, the framework for self-determination elections allowing unrepresented employees to vote on joining an existing bargaining unit.

• Warner-Lambert Co., 298 NLRB 993 (1990): Held that an Armour-Globe election requires determining whether the employees to be added share a community of interest with unit employees and constitute an identifiable, distinct voting group.

• United Operations, Inc., 338 NLRB 123 (2002): Set out the multi-factor community-of-interest test, including departmental organization, skills, job functions, integration, contact, interchange, terms of employment, and supervision.

• Public Service Co. of Colorado, 365 NLRB 1017 (2017): Held that a petitioned-for group in a self-determination election need only share a community of interest with a minority of the existing unit, not the whole unit or a majority of it.

• Sonotone Corp., 90 NLRB 1236 (1950): Established the mechanism for self-determination elections among mixed groups of professional and non-professional employees.

A-National Limousine Services, Inc., and a-National Transit, LLC, Joint and Single Employers, 10-RC-369430 (Unpublished Board Decision)

The Board denied an employer's request for review of a Regional Director's decision directing an election in a unit of drivers and related employees for A-National Limousine Services and A-National Transit, finding no substantial issues warranting review.

The employer had argued that the voting unit would soon shrink because its contractual relationship with the Metro Atlanta Rapid Transit Authority (MARTA) was set to end on September 30, 2025, and that the current unit therefore did not represent a substantial and representative complement of the workforce that would remain afterward. The Board rejected this argument based on facts it took administrative notice of: rather than ending the contract, MARTA's board had extended it three times, most recently through December 31, 2026. That timeline pushed any potential contraction to at least seventeen months after the hearing and well beyond the roughly six-month window the Board has previously treated as sufficient for meaningful bargaining before a workforce reduction.

Because the employer failed to show that a contraction of the unit was likely "in the near future," the Board found it unnecessary to reach the separate question of whether the current unit was a substantial and representative complement of the eventual, post-contraction unit. The Regional Director's decision directing the election was upheld.

Significant Cases Cited

• MJM Studios, 336 NLRB 1255 (2001): Addresses the standard for determining whether an anticipated change in the size of a bargaining unit is expected to occur "in the near future" for purposes of assessing unit eligibility.

• E.I. du Pont de Nemours and Co., 117 NLRB 1048 (1957): Held that a period of roughly six months can constitute sufficient time for meaningful collective bargaining before an anticipated change in the workforce.

Ethyl Corporation, 16-RD-374495 (Unpublished Board Decision)

The Board denied three requests for review of a Regional Director's decision dismissing a petition to decertify a union at Ethyl Corporation, finding the requests raised no substantial issues warranting review.

The case centered on a decertification petition filed against the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 227, in a multi-employer bargaining unit that included both Ethyl Corporation and Afton Chemical Corporation. Ethyl and Afton had raised the question of whether they constituted a single employer, but the Board found it unnecessary to resolve that issue.

Instead, the Board agreed with the Regional Director's alternative rationale: even treating Ethyl and Afton as separate employers, Ethyl had not effectively withdrawn from the multi-employer bargaining unit before the decertification petition was filed. The Board explained that although Ethyl initially gave timely notice of withdrawal from multi-employer bargaining, it undid that withdrawal by continuing to participate in multi-employer negotiations and by reaching a tentative agreement that covered the existing multi-employer unit. Because the petition sought to decertify only part of the existing bargaining unit rather than the unit as a whole, it was not coextensive with the unit and had to be dismissed under established Board precedent.

Significant Cases Cited

• Campbell Soup Co., 111 NLRB 234 (1955): A decertification petition must be coextensive with the existing bargaining unit or it will be dismissed.

• NLRB v. Associated Shower Door Co., 512 F.2d 230 (9th Cir. 1975): An employer's attempted withdrawal from multi-employer bargaining can be negated by its subsequent conduct indicating continued participation in group bargaining.

• Dependable Tile Co., 268 NLRB 1147 (1984): Reaffirmed that an employer who withdraws from multi-employer bargaining but then participates in and is bound by group negotiations has effectively negated that withdrawal.

• Michael J. Bollinger Co., 252 NLRB 406 (1980): An employer's continued participation in multi-employer contract negotiations after a purported withdrawal can nullify the withdrawal.

At the time the memo was issued, it was hard to figure out how exactly Carey would be able to do this. The only way for the backlog to decline is for the agency to close cases at a faster rate than new cases are filed. But the NLRB does not have the budget necessary to hire a bunch of new Board agents to pull this off.

Acting GC Cowen, who preceded GC Carey, had already made two changes aimed at the backlog.

The first move was to require charging parties with deferred cases to file biannual status reports or else have their cases dismissed. This resulted in a one-off mass case closure event in September of last year (visible in the graph above). In March of this year, the next biannual status report deadline passed, but it did not yield nearly as many closed cases.

The second move was to require parties who file unfair labor practice charges to also quickly submit a timeline of relevant events, a witness list, and documentary evidence or else have their cases dismissed. This does not seem to have had any noticeable effect. Among other things, even if a case were dismissed for these paperwork reasons, there would be nothing stopping a party from refiling once it assembled these materials.

For her part, GC Carey claimed that one of the ways she would pursue backlog clearance would be by not spending her resources on trying to overturn existing Board precedent. This restraint only lasted a short period of time. By May of this year, GC Carey was filing exceptions briefs urging the Board to overturn a variety of precedents regarding employer campaign speech, dress codes, and coercive rules.

According to my comprehensive dataset of NLRB docket entries, which I maintain as part of my NLRB Research project, GC Carey has pursued backlog clearance primarily by reallocating agency labor away from litigating unfair labor practice cases and towards closing cases in the backlog.

In the graph below, I compare the cumulative number of complaints issued by the GC in 2026 to the number of complaints issued in the four prior years. By the end of June, GC Carey had issued only 334 unfair labor practice complaints, which is about half as many complaints as were issued in the earlier years.

This dip is not the result of a major decline of unfair labor practice charges coming into the agency. The number of ULP charges being filed has not declined at all and is, if anything, on the higher end of the normal range.

What appears to be happening is that the GC has pushed Regions to spend more of their resources dismissing cases. By the end of June, 4,418 cases had been dismissed, which far exceeds the number that had been dismissed in prior years, even in 2025 when there was also a management-side GC.

This is not to suggest that these excess case dismissals are generally incorrect as a matter of law. Anecdotally, I have heard from practitioners that they believe more cases are being merit-dismissed or dismissed on non-effectuation grounds than before. But the docket data does not show an increase in the merit-dismissal rate (merit dismissals are up, but not as a percent of all dismissals) and non-effectuation dismissals are not able to be tracked. What makes more sense to me is just that a chunk of Board agent time that previously would have been spent litigating unfair labor practice cases is now being spent looking for meritless charges to get rid of.

Regardless of what precisely is going on behind the scenes, the practical reality is that individuals who are victims of unfair labor practices remain largely unable to vindicate their rights at the agency. The median time between a complaint being issued and a charge being filed stands at 456 days.

Despite what appears to be an aggressive effort to bring down the backlog, the size of the backlog remains basically unchanged. At best, then, the GC’s efforts are merely keeping it from getting worse. Of course, keeping it from getting worse by scaling back enforcement efforts generates the same sorts of problems for victims.