01/30/2026: Board Rejects Settlement Agreement That Did Not Rescind Illegal Rules for All Employees
ALJs apply Wright Line. Region finds certain workers are not guards.
There are six documents today. One is a Board decision rejecting a settlement agreement in a coercive rules case. Two are ALJ decisions applying Wright Line to find no violation. Two are regional election decisions involving unit appropriateness and guard status. The last is an advice memo involving a non-solicitation provision.
Permobil, Inc., 374 NLRB No. 32, 19-CA-324895 (Published Board Decision)
An administrative law judge found that Permobil, Inc. violated the NLRA by maintaining non-disclosure and non-disparagement provisions in its Employment Agreement that restricted employees’ protected activities. The judge dismissed allegations regarding noncompetition and non-solicitation clauses, as well as claims about the company’s federal court lawsuit to enforce the agreement.
After the decision, the parties reached a private settlement that resolved both the NLRB charge and the company’s federal lawsuit against the charging party. The company moved to remand the case to allow withdrawal of the charge based on this settlement. The Board denied the motion, finding the settlement inadequate under the Independent Stave standard.
The Board identified two key deficiencies. First, the Acting General Counsel opposed the settlement, arguing it provided relief only to the individual charging party while leaving other employees subject to the same unlawful employment agreement provisions without remedy. Second, the settlement was unreasonable given the nature of the violations. Although the company did not challenge the judge’s findings that the non-disclosure and non-disparagement provisions violated the Act, the settlement provided no remedy related to those provisions, no notice posting to inform affected employees of their statutory rights, and no mechanism to prevent the company from continuing to maintain and enforce the problematic agreement terms. The Board emphasized that while it encourages private settlements, this agreement failed to address the public interest in protecting the statutory rights of all employees subject to the unlawful provisions.
Significant Cases Cited
Independent Stave Co., Inc., 287 NLRB 740 (1987): Established the standard for determining whether the Board will give effect to a private non-Board settlement, including factors such as party agreement, reasonableness of the settlement, absence of fraud or coercion, and respondent’s history of violations.
Flint Iceland Arenas, 325 NLRB 318 (1998): Applied the Independent Stave standard to reject a settlement where unlawful conduct was directed at the entire workforce but the settlement provided no notices or assurances to employees against similar future conduct.
Frontier Foundries, 312 NLRB 73 (1993): Cited for the principle that the Acting General Counsel’s opposition to a settlement is an important consideration weighing against accepting the settlement.
American Tower Corporation, JD-07-26, 13-CA-326591 (ALJ Decision)
An NLRB administrative law judge ruled that American Tower Corporation violated the NLRA by making implied discharge threats to an employee advocating for wage increases and by maintaining an overbroad confidentiality agreement prohibiting salary discussions, but dismissed allegations that the company unlawfully discharged the employee.
Michael Hoffman, an Operational Site Lead, repeatedly complained to management in March and April 2023 about inadequate compensation for himself and coworkers, mentioning potential unionization. When Hoffman expressed disagreement with the company’s compensation position, HR Representative Stephanie Brien told him “if you feel like this was not the right fit...nobody is forcing him to stay here.” Vice President Eric Dudek made a similar statement in July 2023, asking why Hoffman didn’t look for another job if unhappy.
The judge found both statements violated Section 8(a)(1) under Board precedent treating “invite to quit” comments as implied threats, though he expressed constitutional concerns about applying this as a per se rule without examining context.
Regarding Hoffman’s August 2023 discharge, the company claimed it terminated him for refusing to work with Construction Manager George Greiner following a reorganization. Hoffman had a past conflict with Greiner and stated he would do his job but wouldn’t speak to or meet with Greiner. When management requested confirmation he would fulfill job requirements, Hoffman never clearly affirmed he would.
Applying Wright Line, the judge found insufficient evidence of antiunion animus or causal nexus between protected activity and discharge. The company proved it would have discharged Hoffman regardless due to his refusal to acknowledge changed job duties and complaints about confrontational behavior.
The judge found the confidentiality agreement unlawfully prohibited discussing “salary and compensation information” and “methods of operation.” Under Stericycle, the company failed to prove the rule advanced a legitimate business interest unachievable through narrower means.
The remedy requires rescinding unlawful confidentiality provisions and posting notices, but no reinstatement or backpay.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established burden-shifting framework requiring proof of protected activity, employer knowledge, animus, and causal nexus, with employer rebuttal showing it would have taken same action regardless.
Stericycle, Inc., 372 NLRB No. 113 (2023): Created framework for evaluating workplace rules with presumption of unlawfulness if employees could reasonably interpret rule as restricting Section 7 rights, rebuttable only by proving legitimate business interest unachievable through narrower tailoring.
Winston Salem Journal, 341 NLRB 124 (2004): Held employee engages in protected activity by speaking to management about unfair treatment of other employees.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established employer free speech protections under First Amendment and Section 8(c) unless expression contains threats or promises of benefit.
Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Clarified General Counsel must establish causal nexus between protected activity and adverse action to meet initial Wright Line burden.
Medieval Knights, LLC and Medieval Times U.S.A. Inc., JD-08-26, 22-CA-351533 (ALJ Decision)
An Administrative Law Judge dismissed unfair labor practice charges against Medieval Times, finding the company did not unlawfully discipline knight Marcus Vere for his union activities or testimony in prior NLRB proceedings.
The General Counsel alleged Medieval Times violated the NLRA by issuing multiple warnings to Vere between April and September 2024 in retaliation for his support of the American Guild of Variety Artists and his January 2024 NLRB testimony. Vere had actively participated in the union’s organizing campaign and contract negotiations at the Lyndhurst, New Jersey location.
ALJ Michael Rosas applied the Wright Line framework and found insufficient evidence of discriminatory animus. The judge emphasized that Medieval Times tightened attendance enforcement across all departments starting December 2023—before Vere’s testimony—implementing stricter clock-in policies and systematically tracking all employees’ attendance. Records showed over 100 employees received informal coaching or discipline for attendance violations during 2024-2025, with multiple formal coachings, written warnings, and terminations.
The judge rejected arguments that timing or departure from past lenient practices demonstrated retaliation. Other employees who testified received no discipline, while non-union employees with better attendance also faced progressive discipline. While inconsistent enforcement prevented Medieval Times from meeting its rebuttal burden, the General Counsel failed to establish discriminatory motivation.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established burden-shifting framework requiring proof that protected activity motivated adverse employment action.
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958 (2004): If employer’s stated reasons are pretextual, it fails to meet its Wright Line burden.
Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Unlawful motivation may be proven through direct or circumstantial evidence.
Grand Rapids Press, 327 NLRB 393 (1998): ALJs may rely on prior animus findings even when pending Board review.
Shamrock Foods, 366 NLRB No. 107 (2018): Unlawful where employer exclusively targeted protected conduct through stricter scrutiny.
KGW-Tv, 19-RC-376874 (Regional Election Decision)
An NLRB regional director approved a self-determination election for 20 producers, digital content producers, and content coordinators at KGW-TV in Portland to vote on joining IBEW Local 48’s existing bargaining unit of directors and broadcast engineers. The election is scheduled for February 19, 2026.
The director rejected the employer’s argument to dismiss the petition based on a planned reorganization, finding no Board precedent supports dismissal for workplace changes that don’t constitute cessation of operations.
Applying the Armour-Globe standard, the director found the voting group constitutes an identifiable, distinct segment that shares a community of interest with the existing unit. Key factors included high functional integration between directors and producers who work together daily on broadcasts, shared workspace in the newsroom, and similar terms and conditions of employment.
The director rejected claims that producers are statutory supervisors under Section 2(11), finding they don’t assign significant overall duties or responsibly direct other employees as defined in Oakwood Healthcare. While producers make presentation decisions, they don’t select which anchors, reporters, editors, or directors work on their newscasts, and requesting specific editors based on known skills is a routine function.
The director also rejected the employer’s argument that digital content producers are managerial employees, distinguishing editorial policy formulation in The Republican Co. from newsworthiness determinations, consistent with established Board precedent.
Significant Cases Cited
Armour & Co., 40 NLRB 1333 (1942): Established self-determination elections for employees sharing community of interest with existing bargaining units.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined supervisory authority as assigning significant overall duties and being held accountable for others’ performance.
St. Vincent Charity Medical Center, 357 NLRB 854 (2011): “Identifiable and distinct” analysis asks whether voting group unduly fragments workforce.
The Republican Co., 361 NLRB 93 (2014): Editorial page editor formulating newspaper policy is managerial employee.
United Power Cooperative, 27-RC-371523 (Regional Election Decision)
The NLRB’s Denver Regional Director determined that system operators at United Power Cooperative are not statutory guards under the NLRA and directed an election for a stand-alone bargaining unit of approximately five employees.
The International Brotherhood of Electrical Workers, Local 111 sought to add the system operators to its existing unit. The employer argued they qualified as guards under Section 9(b)(3), which would bar representation by a union representing non-guards.
System operators work 24/7 monitoring United Power’s electrical grid, dispatching line crews for outages, and coordinating switching procedures. They also monitor security cameras, access control systems, and facility alarms, reporting concerns to management.
Applying Boeing Co., the Regional Director found system operators lack traditional guard characteristics—no weapons, security training, guard uniforms, security patrols, ability to control access, or authority to enforce rules. Their security duties are minor compared to their primary grid-monitoring responsibilities. The decision distinguished Sho-Me Power Electric Cooperative, where dispatchers who controlled facility access were deemed guards.
The Regional Director also rejected combining the system operators with the existing unit. Applying United Operations community of interest factors, the decision found insufficient commonality despite functional integration. System operators have distinct job functions, different schedules (12.5-hour versus 8-hour shifts), and separate supervision. The union failed to demonstrate an overwhelming community of interest under Specialty Healthcare.
Significant Cases Cited
Boeing Co., 328 NLRB 128 (1999): Employees are guards if guard responsibilities are not minor or incidental to overall duties, focusing on nature of duties rather than time spent.
Sho-Me Power Electric Cooperative, 373 NLRB No. 139 (2024): Dispatchers who monitor and control facility access and respond to intrusions are statutory guards.
Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Party seeking to add employees to existing unit bears burden of demonstrating overwhelming community of interest.
United Operations, Inc., 338 NLRB 123 (2002): Community of interest considers distinct skills, job functions, supervision, terms and conditions, and employee interchange.
Swirlds Labs, 27-CA-325586 (Advice Memo)
The NLRB Division of Advice concluded that an employer’s maintenance of non-solicitation provisions in employment agreements did not violate Section 8(a)(1) and advised dismissal of the charge. The charging party had signed two agreements containing similar provisions—one employment agreement forbidding solicitation of employees to cease doing business with or providing services to the employer, and one stock option agreement prohibiting solicitation that would encourage employees to leave or alter their relationship with the employer.
The Advice division analyzed whether these restrictions could chill protected concerted activity. While acknowledging that the employment agreement provision could theoretically target protected activities like work stoppages to improve conditions—not just unprotected quitting—and that the stock option provision might implicate protected activity, the division found several factors counseled against proceeding. First, the division applied established Board precedent distinguishing voluntary resignation from conditional threats to quit, finding that resigning is unprotected while threatening to quit may be protected. The division also noted that General Counsel’s position regarding post-termination non-solicitation provisions is that such restrictions generally do not violate Section 7 rights.
However, the division emphasized practical considerations that made litigation inappropriate. Both restriction periods had expired following the charging party’s voluntary resignation. No evidence showed the provisions were still maintained given that the employer offered replacement stock option agreements with more favorable terms that employees likely accepted. Additionally, there was no evidence the provisions had ever been invoked or enforced, that any employee had engaged in protected activity, or that any employee had even considered engaging in activity potentially implicated by the provisions. Under these circumstances, the division determined pursuing the case would not effectuate the NLRA or constitute a prudent use of agency resources.
Significant Cases Cited
Crescent Wharf and Warehouse Company, 104 NLRB 860 (1953): Established that voluntarily resigning from employment is unprotected activity whereas threatening to quit may be protected concerted activity.
Technicolor Services, 276 NLRB 383 (1985): Found that a union steward’s efforts to have coworkers apply to other companies was protected because it served the employees’ interest in better job security rather than undermining the employer.