02/11/2026: Two Summary Judgments in Refusal-to-Bargain Cases
Also charge nurses were not supervisors and recognition bar prevented rival union's petition.
Hotel Equities Group LLC, 374 NLRB No. 36, 16-CA-363860 (Published Board Decision)
The NLRB has found that Hotel Equities Group violated the NLRA by refusing to bargain with UNITE HERE Local 23 following the union’s certification as the collective bargaining representative for hotel workers at an Austin, Texas facility.
After the union won a secret ballot election in July 2024, the Regional Director certified it in October 2024 as the representative for a unit including housekeeping staff, front desk workers, shuttle drivers, and other hotel employees. The Board denied the employer’s request for review in January 2025. When the union requested bargaining in March 2025, the employer refused, beginning in April 2025 and continuing through the unfair labor practice proceedings.
The employer contested the union’s certification by raising objections to the underlying representation case, asserting constitutional challenges to administrative law judge removal protections, and claiming the Board lacked a quorum. The Acting General Counsel moved for summary judgment, which Chief Administrative Law Judge Giannasi transferred to the Board.
The Board applied the longstanding principle from Pittsburgh Plate Glass that representation issues must be litigated in representation proceedings, not subsequent unfair labor practice cases, unless the party offers newly discovered evidence or establishes special circumstances. The employer presented no new evidence and raised no issues that couldn’t have been litigated earlier. The Board rejected the constitutional challenge, noting the employer suffered no demonstrable harm from removal protections, and found the quorum objection moot since the Board had regained its quorum.
The Board granted summary judgment, finding the refusal to bargain violated Section 8(a)(5) and (1). The remedy orders the employer to bargain with the union and extends the certification period to begin when good-faith bargaining commences, citing the Mar-Jac Poultry doctrine that ensures employees receive their full statutory period of union representation.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues must be litigated in representation proceedings and cannot be relitigated in subsequent unfair labor practice proceedings absent newly discovered evidence or special circumstances.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The initial certification period begins when the employer commences good-faith bargaining with the union, ensuring employees receive the full statutory period of representation.
Collins v. Yellen, 594 U.S. 220 (2021): A party challenging unconstitutional removal protections must demonstrate actual harm from those protections to obtain relief.
Frontier Hotel, 265 NLRB 343 (1982): The Board takes official notice of the record in underlying representation proceedings pursuant to its Rules and Regulations.
Transdev Services, Inc., 374 NLRB No. 40, 05-CA-352917 (Published Board Decision)
The National Labor Relations Board has ordered Transdev Services, Inc., a Baltimore-based transportation company, to recognize and bargain with the Amalgamated Transit Union Local 1764 after the company refused to acknowledge the union’s certification. The Board granted summary judgment against Transdev, finding the company violated the NLRA by refusing to bargain with the union representing customer service representatives, dispatchers, schedulers, and operations supervisors at its Baltimore facility.
The case centers on Transdev’s challenge to the union’s certification, which the company contested by arguing that certain “operations supervisors” included in the bargaining unit were statutory supervisors who should have been excluded. The Board had previously addressed this issue in the underlying representation proceeding, finding that Transdev failed to establish the supervisory status of these three operations supervisors. Following that determination, the Regional Director issued a Revised Certification of Representative in October 2024 that included the operations supervisors in the existing unit.
After the union requested recognition and bargaining in early October 2024, Transdev explicitly refused, stating it would “test” the union’s certification. The Board applied the Pittsburgh Plate Glass principle, which prevents employers from relitigating representation issues that were or could have been addressed in the underlying representation proceeding. Because Transdev presented no newly discovered evidence or special circumstances warranting reconsideration, the Board found all representation issues had been properly resolved and that the refusal to bargain violated Section 8(a)(5) and (1) of the NLRA.
The Board rejected various constitutional challenges raised by Transdev, including claims about removal protections for Board members and administrative law judges, finding no evidence the company suffered harm from such protections. The Board also dismissed Transdev’s claim to a jury trial, citing established Supreme Court precedent. The decision orders Transdev to bargain with the union upon request and to post appropriate notices informing employees of their rights.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Establishes that representation issues that were or could have been litigated in a representation proceeding cannot be relitigated in a subsequent unfair labor practice proceeding.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Rejected the contention that parties are entitled to a jury trial in NLRB proceedings under the Seventh Amendment.
Collins v. Yellen, 594 U.S. 220 (2021): Held that constitutional challenges to removal protections require showing actual harm resulted from the allegedly unconstitutional provisions.
Alameda Healthcare & Wellness Center, LLC, 32-RC-377020 (Regional Election Decision)
An NLRB Regional Director determined that approximately 70 charge nurses at Alameda Healthcare and Wellness Center are not statutory supervisors, clearing the way for a union election. The employer argued charge nurses supervise certified nursing assistants by assigning work, disciplining employees, and responsibly directing operations, but the Regional Director found insufficient evidence of independent judgment required for supervisory status.
Assignment Authority Rejected
The Regional Director found charge nurses lack meaningful assignment authority. Schedulers create monthly schedules and daily assignment sheets based on state-mandated patient-to-nurse ratios. When charge nurses assign CNAs to rooms, they either follow predetermined patterns or simply go down the list numerically without exercising judgment. Mid-shift reassignments are dictated by state regulations, mandatory patient requests, or routine workload equalization—none requiring independent judgment under Oakwood Healthcare and Lynwood Manor. Evidence about charge nurses approving overtime or modifying breaks was conflicting and, even if true, reflected routine responses to patient care requirements rather than supervisory discretion.
Disciplinary Authority Insufficient
Evidence of disciplinary involvement was sparse and conflicting. The employer provided only six examples over more than a year for 70 charge nurses—too sporadic to establish supervisory status under Oakwood Healthcare. When charge nurses participated in discipline, management conducted independent investigations or reviewed corrective action forms, undermining claims of supervisory authority under Veolia I. Most charge nurse involvement consisted of reporting CNA performance issues rather than making disciplinary recommendations—”nothing more than a reporting function” under Republican Co. The employer failed to prove a progressive discipline system exists, producing no documentary evidence despite a charge nurse testifying she’d never seen such a policy.
Responsible Direction Not Proven
The Regional Director applied Oakwood Healthcare‘s test requiring authority to direct work and take corrective action plus prospect of adverse consequences if the supervisor fails to act. While charge nurses request CNAs perform tasks, these tasks are pre-established through job descriptions and state regulations, not supervisory discretion. The employer provided insufficient evidence that charge nurses face accountability for CNA performance, offering only one example of a charge nurse disciplined for a CNA’s actions—far short of the pattern shown in Croft Metals. Secondary indicia like higher pay cannot establish supervisory status without evidence of primary statutory indicia.
Election Directed
The Regional Director ordered a Sonotone self-determination election for February 19, 2026, with separate voting groups for professional employees (RNs) and nonprofessional employees (LVNs).
Significant Cases Cited
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the three-part test for supervisory status requiring authority over one of twelve statutory functions, independent judgment, and authority held in employer’s interest.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined “assign,” “responsibly to direct,” and “independent judgment,” holding supervisory authority must exceed routine duties of straw bosses and lead employees.
G4S Regulated Security Solutions, 362 NLRB 1072 (2015): Held that conflicting or inconclusive evidence on supervisory authority defeats finding of supervisory status.
Croft Metals, Inc., 348 NLRB 717 (2006): Established that responsible direction requires authority to direct work, take corrective action, and face adverse consequences for failing to exercise that authority.
Lynwood Manor, 350 NLRB 489 (2007): Held that mere equalization of workloads does not require independent judgment necessary for supervisory status.
Interstate Waste Services, 04-RC-380380 (Regional Election Decision)
The NLRB’s Region Four dismissed a representation petition filed by Teamsters Local 701 seeking to represent waste service workers at Interstate Waste Services’ New Jersey facility, finding that the employer’s voluntary recognition of a rival union barred the petition under the Board’s recognition-bar doctrine.
The case arose after Teamsters Local 701 initially filed a petition in August 2025, which was blocked pending investigation of unfair labor practice charges alleging that Local 108 and the employer unlawfully coerced employees into signing authorization cards. The Regional Director investigated and ultimately dismissed those charges in January 2026, finding insufficient evidence to invalidate enough cards to undo Local 108’s majority status when the employer voluntarily recognized it on August 1, 2025.
When Teamsters Local 701 filed a nearly identical second petition in February 2026, the Regional Director issued a notice to show cause why the petition should not be dismissed under the recognition-bar doctrine. The doctrine provides that an employer’s voluntary recognition of a union based on majority status bars election petitions for a “reasonable period” to allow for collective bargaining—defined as no less than six months and no more than one year after the parties’ first bargaining session.
The Regional Director found that the employer and Local 108 began bargaining on January 12, 2026, reached tentative agreement on February 2, 2026, and were not at impasse. Because less than six months had elapsed since bargaining commenced, the parties remained within the protected period during which the voluntary recognition bars competing petitions. The Regional Director noted that the employer had properly refrained from bargaining with Local 108 during the earlier ULP investigation to avoid violating the NLRA’s prohibition on unlawful assistance to a labor organization.
Significant Cases Cited
Lamons Gasket Co., 357 NLRB 739 (2011): Established the Board’s recognition-bar doctrine governing when voluntary recognition of a union bars competing election petitions.
Bruckner Nursing Home, 262 NLRB 955 (1982): Held that an employer may voluntarily recognize a union while a rival union is organizing, but a duty of strict employer neutrality attaches once the rival files a representation petition.