02/02/2026: New Board Says It Will Not Overrule Precedent Without Three-Member Majority
And other tidbits from the recent slate of published Board decisions.
As I noted last week, the new Board’s early output has mostly consisted of a bunch of short decisions on requests for review and default judgments that have little legal significance. But some of those decisions have important tidbits in them. Today’s post provides a rundown of those tidbits and then finishes with a summary of an ALJ decision from Friday.
I’ve seen five significant takeaways in the published Board decisions so far:
Regional Directory Authority When Quorum Absent. The Board affirmed that Regional Directors possess the authority to process representation cases even when the Board itself lacks a quorum. It held that the Supreme Court’s decision in Loper Bright did not disturb this precedent. Satellite Healthcare (Santa Rosa), 374 NLRB No. 25, 20-RC-360713 (2026-01-15) (Published Board Decision)
COVID Remedial Notices Ended. The Board officially discontinued its temporary COVID-19 policy that allowed employers to delay posting remedial notices until their facilities fully reopened or staffing levels returned to normal. Citing that the national emergency ended “long ago,” the Board ordered a return to standard procedure requiring all notices be posted within 14 days of service, regardless of a facility’s operational status. Vibe Consulting, LLC, 374 NLRB No. 33, 07-CA-300342 (2026-01-30) (Published Board Decision)
Coercive Rules Settlements Require Rescinding the Rules. The Board rejected a private settlement that resolved an individual employee's dispute but left the rest of the workforce subject to unlawful non-disclosure and non-disparagement agreements. Applying the Independent Stave factors, the Board held the settlement unreasonable because it lacked any notice-posting remedy to inform other employees of their statutory rights or correct the unlawful provisions still maintained against them. Permobil, Inc., 374 NLRB No. 32, 19-CA-324895 (2026-01-29) (Published Board Decision)
Board Can Pursue Cases Against Companies in Bankruptcy. The Board reaffirmed that an employer's Chapter 7 bankruptcy filing does not strip the Agency of jurisdiction or stay unfair labor practice proceedings. Citing the "police or regulatory power" exception to the automatic stay, the Board held that it retains full authority to process cases to final disposition even while a respondent is in bankruptcy. Ampersand Publishing, LLC D/B/a Santa Barbara News-Press, 374 NLRB No. 27, 31-CA-029759 (2026-01-28) (Published Board Decision)
No Overturning Precedent Without Three-Member Majority. In both Lodi Volunteer Ambulance Rescue Squad and Ampersand Publishing, Members Murphy and Mayer applied the consequential damages remedies established in Thryv, Inc. solely because the current Board lacks a three-member majority to overrule the precedent. Explicitly noting their hesitation, the Members agreed to apply Thryv only as “extant precedent” while reserving their opinions on whether such remedies are actually permissible under the Act. Lodi Volunteer Ambulance Rescue Squad, Inc., 374 NLRB No. 26, 22-CA-331846 (2026-01-28) (Published Board Decision); Ampersand Publishing, LLC D/B/a Santa Barbara News-Press, 374 NLRB No. 27, 31-CA-029759 (2026-01-28) (Published Board Decision)
The new Board's announcement that it intends to adhere to the long-standing tradition of requiring a three-member majority to overturn precedent is the most significant tidbit. Currently, the Board only has three members, necessitating unanimous votes to change existing law. Given that Member Prouty is unlikely to vote against the precedents established during the Biden administration, Board law should remain largely unchanged for the time being.
VHS Acquisition Subsidiary Number 7, Inc. D/B/a Saint Vincent Hospital, JD-09-26, 01-CA-290852 (ALJ Decision)
An Administrative Law Judge found Saint Vincent Hospital in Worcester, Massachusetts committed multiple unfair labor practices against the Massachusetts Nurses Association following a nine-month strike that ended in December 2021. The violations occurred after nurses returned to work and voted in February 2022 to keep their union despite a decertification attempt by replacement workers.
Union Access Violations
For over 20 years, union representatives visited the hospital with minimal advance notice—often same-day notification. The contract required 24-hour notice only “where reasonably possible.” In February 2022, management suddenly began demanding strict 24-hour notice for every visit and banned two union representatives for 30 and 56 days respectively for alleged violations.
The judge ruled this violated the NLRA. The longstanding practice of flexible access had established the contract’s meaning. The hospital couldn’t unilaterally reinterpret the agreement without bargaining.
Bonus Program Violations
The hospital unlawfully manipulated three incentive programs:
Shift Bonus: Unilaterally reduced an agreed $600 bonus to $400 in November 2022 without union consent.
Winter Extra Shift and Switch Shift Programs: Prematurely declared impasse on January 12, 2023 and implemented both programs, even though the union had indicated the day before that it was still reviewing proposals. The hospital had already executed 22 individual contracts with nurses before even claiming impasse—unlawful direct dealing that bypassed the union.
When a nurse asked about her delayed $6,000 bonus, management blamed the union’s unfair labor practice charge, further violating the law.
Information Request
The hospital refused to provide 2012-present health insurance plan documents the union requested to understand coverage patterns and prepare for negotiations. The judge found health insurance information presumptively relevant and the request not overly burdensome.
Arbitration Administration
For over a decade, the parties used the Labor Relations Connection and American Arbitration Association to fully administer arbitrations—not just select arbitrators, but coordinate schedules, exchange documents, and serve as liaison. In September 2023, the hospital unilaterally announced it would only use these services for arbitrator selection. This violated the duty to bargain over changes to established grievance procedures.
Remedy
The hospital must rescind unlawful changes if requested, make employees whole for bonus losses, provide requested documents, and bargain in good faith on mandatory subjects before making future changes.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Employers must bargain before changing terms and conditions of employment, even with a contract in effect.
Pan-Adobe, 222 NLRB 313 (1976): Past practice establishes meaning for contract language used by parties.
Taft Broadcasting Co., 163 NLRB 475 (1967): Impasse requires examining bargaining history, good faith, length of negotiations, and parties’ contemporaneous understanding—not just employer impatience.
IMI South, LLC, 364 NLRB 1373 (2016): Generally-worded zipper clauses don’t demonstrate clear and unmistakable waiver of statutory bargaining rights.
Garden Grove Hospital, 357 NLRB 653 (2011): Collective bargaining continues during contract term for day-to-day adjustments and new problems not covered by existing agreements.