02/24/2026: X Factor Beyond Belief Illegally Fired Union Supporters
X Factor also did not show up to the hearing.
USC Care Medical Group, Inc., Usc Student Health Department, 374 NLRB No. 42, 31-CA-360815 (Published Board Decision)
The NLRB issued a decision and order against USC Care Medical Group, Inc. (USC Student Health Department) on February 18, 2026, finding that the employer violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the National Union of Healthcare Workers (NUHW) following the union’s certification as the exclusive bargaining representative of medical assistants, licensed vocational nurses, and radiology technologists at the Engemann Student Health Center.
The case arose after a secret ballot election on April 17, 2024, in which NUHW was certified as the bargaining representative. The employer refused to bargain as a deliberate tactic to challenge the certification, arguing that the bargaining unit was inappropriate because it excluded employees at the employer’s other student health centers. The Board rejected this argument on summary judgment, applying the well-established rule from Pittsburgh Plate Glass Co. v. NLRB that representation issues already litigated — or that could have been litigated — in a prior representation proceeding cannot be relitigated in an unfair labor practice case. The employer offered no newly discovered evidence or special circumstances to justify re-examination of the underlying representation decision.
The Board also disposed of several constitutional affirmative defenses. It rejected the employer’s Seventh Amendment jury trial argument, citing NLRB v. Jones & Laughlin Steel Corp., which long ago settled that question. On the employer’s Article II removal protection claims regarding Board members and ALJs, the Board denied relief because the employer failed to demonstrate any concrete harm resulting from those provisions, consistent with the Supreme Court’s framework in Collins v. Yellen.
The Board ordered the employer to cease and desist from the refusal to bargain, to bargain on request with NUHW, and to post the required notice. It also applied the Mar-Jac Poultry rule, resetting the one-year certification bar to begin running only from the date the employer begins bargaining in good faith.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues that were or could have been litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice proceeding.
Specialty Healthcare, 357 NLRB 934 (2011): Set forth the Board’s standard for determining the appropriateness of a bargaining unit, particularly in healthcare and other non-acute care settings.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The Supreme Court upheld the constitutionality of the NLRA and rejected the argument that NLRB proceedings entitle respondents to a jury trial under the Seventh Amendment.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the one-year certification bar begins to run only from the date an employer commences bargaining in good faith, not from the date of certification.
Collins v. Yellen, 594 U.S. 220 (2021): Held that to obtain relief based on an unconstitutional removal protection, a party must demonstrate actual harm caused by the challenged provision.
Amazon.com Services, Inc., 374 NLRB No. 38, 29-CA-280153 (Published Board Decision)
In a February 19, 2026 supplemental decision, the Board addressed the one remaining issue it had severed from its November 2024 decision in this case: whether Amazon violated Section 8(a)(1) of the NLRA at mandatory employee meetings on November 10 and 11, 2021, by promising improvements to its Career Choice Program (CCP) — a tuition reimbursement benefit — in order to discourage employees from supporting the Amazon Labor Union (ALU) at its JFK8 facility in Staten Island. The Board affirmed the ALJ’s dismissal of those allegations.
Amazon had announced company-wide CCP enhancements in September 2021 — including reducing the service requirement to qualify from one year to 90 days and increasing reimbursement from 80 to 100 percent — without any reference to the union. At the November meetings, managers discussed those previously announced changes. The General Counsel did not allege that the September announcement was itself unlawful, but argued that the November discussions functioned as the first effective announcement of the changes because most employees lacked actual prior knowledge of them, and that the Respondent should have been required to justify the September announcement with a legitimate business reason.
The Board rejected both arguments. On the first, it relied on the well-established principle that the lawfulness of an employer’s reference to existing benefits does not turn on whether employees had prior actual notice of those benefits, citing Ideal Macaroni Co. and related precedent. On the second, the Board held that because the General Counsel never pled or litigated the lawfulness of the September announcement, the Respondent’s motive for that announcement was not properly before the Board and no inference about it — lawful or unlawful — could be drawn. The Board noted that the company-wide nature of the announcement and the absence of any union reference tended, under existing precedent, to weigh against an inference of unlawful motive. Member Prouty wrote separately to note that systemwide benefit changes have been found unlawful in other cases where affirmative record evidence showed they were designed to combat union activity, but that such facts were not present in this record and that due process concerns precluded any conclusion on motive given that the issue was never litigated.
The remaining complaint allegations were dismissed.
Significant Cases Cited
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): Held that an employer violates the NLRA by conferring benefits on employees during a union organizing campaign in order to discourage union support.
Vista Del Sol Health Services, 363 NLRB 1193 (2016): Established that the Board infers improper motive and interference with Section 7 rights when an employer grants or promises benefits during an organizing campaign without a legitimate business reason.
Ideal Macaroni Co., 301 NLRB 507 (1991): Held that an employer may lawfully refer to an existing benefit during a union campaign even if employees were previously unaware of it.
Nalco Chemical Co., 163 NLRB 68 (1967): Found that company-wide benefit changes affecting a large number of employees at multiple locations, with no contingency on an election result, did not support an inference of unlawful intent to influence a vote among a small subset of employees.
NP Red Rock LLC d/b/a Red Rock Casino Resort Spa, 373 NLRB No. 67 (2024): Found unlawful promises and implementation of systemwide benefits where affirmative record evidence showed the benefits were developed specifically to combat a union campaign.
Browning-Ferris Industries of California, Inc., D/B/a BFI Newby Island Recyclery and FPR-II, LLC, D/, 374 NLRB No. 46, 32-CA-160759 (Published Board Decision)
In this Second Supplemental Decision and Order, the NLRB reaffirmed on remand from the D.C. Circuit that Browning-Ferris Industries (BFI) is a joint employer of workers supplied by staffing contractor Leadpoint Business Services at BFI’s Newby Island recycling facility in Milpitas, California, and therefore violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with Teamsters Local 350.
The case has a lengthy procedural history dating to 2013, when the Union sought to represent Leadpoint’s sorters, screen cleaners, and housekeepers. The central legal question has always been whether BFI qualifies as a joint employer of those workers. In 2015, the Board in Browning-Ferris I abandoned the prior “direct and immediate control” standard from TLI, Inc. and Laerco Transportation, holding instead that reserved authority to control and indirect control are both relevant to the joint-employer inquiry. The D.C. Circuit largely upheld that standard in 2018 but remanded, instructing the Board to clarify how indirect control must be cabined to bear on essential terms and conditions of employment, not merely routine features of company-to-company contracting. On the first remand in 2020, the Board instead applied pre-Browning-Ferris I precedent and declined to find joint-employer status, concluding that retroactive application would be manifestly unjust. The D.C. Circuit rejected that approach and remanded again in 2022.
In this decision, the Board clarifies the Browning-Ferris I standard by incorporating the court’s distinction between control over workers’ essential terms and conditions on one hand, and ordinary incidents of third-party contracting on the other. Specifically, the Board holds that evidence of control is relevant only if it bears on the manner, means, and details of workers’ performance — not if it merely sets objectives, monitors end results, or reflects routine contractual parameters. Applying that clarified standard retroactively (which the Board found appropriate given the absence of clear, settled pre-existing law that parties could reasonably have relied upon), the Board concluded that BFI exercised direct control sufficient on its own to establish joint-employer status: BFI unilaterally set conveyor belt speeds governing the pace of work, directly instructed Leadpoint workers about sorting methods and use of emergency stop switches, and assigned and directed housekeepers. BFI also maintained a contractual wage cap preventing Leadpoint from paying its workers more than comparable BFI employees — a provision that directly affected wages and required BFI’s participation even to implement a local minimum wage increase. Additionally, BFI exercised indirect control by channeling performance instructions through Leadpoint supervisors and by twice requesting the discharge of specific Leadpoint workers, requests Leadpoint followed. The Board emphasized that this decision applies only as law of the case for events predating the 2020 Joint Employer Rule’s effective date, and has no prospective application.
Significant Cases Cited
Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015): The Board’s original decision abandoning the “direct and immediate control” standard and holding that reserved and indirect control are relevant to the joint-employer inquiry under the NLRA.
Browning-Ferris Industries of California, Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018): The D.C. Circuit largely upheld the restated standard but remanded, requiring the Board to limit indirect control to conduct bearing on essential terms and conditions rather than routine contracting parameters.
Sanitary Truck Drivers & Helpers Local 350 v. NLRB, 45 F.4th 38 (D.C. Cir. 2022): The court rejected the Board’s 2020 retroactivity analysis and issued a second remand requiring the Board to clarify and apply the Browning-Ferris I standard.
Dunkin’ Donuts Mid-Atlantic Distribution Center, Inc. v. NLRB, 363 F.3d 437 (D.C. Cir. 2004): The court affirmed joint-employer status where a user employer exercised direct control over discipline, work assignment, equipment, and day-to-day direction of contractor-supplied employees.
SNE Enterprises, 344 NLRB 673 (2005): Established the Board’s general presumption of retroactive application of new standards and identified the factors — including party reliance and purposes of the NLRA — relevant to whether retroactivity would work a manifest injustice.
X Factor S2 LLC, JD-12-26, 31-CA-323348 (ALJ Decision)
An NLRB Administrative Law Judge found that X Factor S2 LLC, a television production company, violated Sections 8(a)(1) and (3) of the NLRA by discharging four members of its grip and electrical crew after learning they were attempting to unionize a non-union production.
The crew — Noah Kelly, Andrew Choe, Sean Hunt, and Steven Miller — began organizing efforts in early July 2023, just before filming started on the second season of “X Factor (Beyond Belief).” Kelly contacted IATSE Local 728, discussed the plan with Choe and Hunt, and distributed digital authorization cards. Executive producer Daniel Castro learned of the effort on the first day of filming and, after the second day, gave all four employees the following day off and replaced them with a new crew. The four were never called back.
The ALJ applied the Wright Line burden-shifting framework. Under that standard, the General Counsel must first show that protected activity was a motivating factor in the adverse action. The ALJ found that burden met through direct evidence: Castro’s contemporaneous email to the director of photography acknowledging Kelly’s organizing effort, and his explicit statement that he “could not have a [Union] rep coming down and having a vote happen.” The timing of the discharges — occurring within two days of Castro learning of the plan — and the shifting, pretextual reasons Castro offered (a pending SAG strike, “breathing room,” poor “vibes,” and trimming “the fat”) further supported a finding of discriminatory motive.
On the question of whether the employer knew of or suspected all four employees’ involvement, the ALJ noted that Castro’s initial email mentioned only Kelly, but inferred knowledge as to the others based on their close working relationships, Castro’s reference to replacing crew members in the plural, and the Board’s established principle that suspicion of protected activity — not certainty — is sufficient. The ALJ also noted that even if Choe, Hunt, and Miller were treated as neutrals, their discharges would still be unlawful as actions taken to facilitate or cover up discrimination against a known union supporter.
Because the respondent failed to appear at the hearing or present any evidence, it could not carry its Wright Line rebuttal burden of showing the discharges would have occurred absent the protected activity.
The ALJ ordered reinstatement, backpay with interest compounded daily, compensation for other direct or foreseeable pecuniary harms under Thryv, Inc., adverse tax consequence compensation, and the standard notice-posting remedy.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for evaluating whether an employer’s adverse action against an employee was motivated by anti-union animus, requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Reaffirmed the types of circumstantial evidence — including timing, pretextual reasons, and departures from past practice — that may establish discriminatory motive under Wright Line.
Martech MDI, 331 NLRB 487 (2000): Held that the General Counsel need not prove an employer had specific knowledge of an individual employee’s protected activity where circumstances support an inference of suspicion, including general knowledge of union activity, demonstrated animus, timing, and pretextual reasons.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the make-whole remedy to require employers to compensate unlawfully discharged employees for all direct or foreseeable pecuniary harms beyond lost wages, including job-search expenses.
The Atlanta Opera, Inc., 372 NLRB No. 95 (2023): Reaffirmed the common-law agency test for determining independent contractor status, emphasizing whether a worker is in fact rendering services as part of an independent business rather than operating under the employer’s effective control.
Ascension Providence Rochester Hospital, JD-11-26, 07-CA-301250 (ALJ Decision)
ALJ Benjamin W. Green found Ascension Providence Rochester Hospital committed multiple NLRA violations across several theories while dismissing others.
Section 8(a)(1) — Overbroad Rules and Coercive Conduct
Applying Stericycle, Inc., the judge found that management directives prohibiting “negative comments,” requiring a “positive attitude,” and barring an employee from surveying coworkers about an attendance policy were presumptively unlawful because a reasonable, economically dependent employee would read them to prohibit Section 7 activity. The hospital failed to show a legitimate business interest that could not be served by narrower rules. The judge also found violations when security removed off-duty union representatives from the publicly accessible lobby and cancelled a conference room reservation, both on the stated ground that no union business could occur on campus — a per se overbroad restriction under Beth Israel Hospital v. NLRB. A manager’s statement at an off-premises sandwich shop that employees would get the wages they wanted if they stopped distributing union materials violated Section 8(a)(1) as both an implied threat and a promise of benefit under NLRB v. Exchange Parts Co.
Section 8(a)(3) — Failure to Reinstate ULP Strikers
The judge found the September 2023 strike was a ULP strike based on the strike notice citing only pending ULP charges, picket signs referencing ULPs, and the timing of the strike vote. The hospital refused to reinstate strikers on the date specified in the advance notice, instead holding them out one additional day to exhaust a contractual minimum-hours guarantee with its replacement staffing agency. Relying on Alaris Health at Castle Hill, the judge rejected any claim to a five-day grace period, holding that when the employer’s ULPs contributed to the strike and the return date was known in advance, the employer bears the financial burden of overlapping staffing costs.
Section 8(a)(5) — Information Requests
The judge found violations for the hospital’s wholesale failure to respond to multiple information requests covering nonunit RN and radiology technologist use, unit employee compensation data, and wage scales at other Ascension Detroit-area hospitals. The hospital’s defenses — inadvertent oversight, the union’s failure to follow up, and the union’s ability to bargain without the information — were all rejected. One request regarding health plan changes was dismissed because the hospital’s response was not shown to be deficient.
Section 8(a)(5) — Unilateral Use of STO Nurses
The judge found the hospital unlawfully hired and used short-term option (STO) registered nurses to perform bargaining unit work without bargaining, beginning April 17, 2022 (the start of the Section 10(b) limitations period). Applying MV Transportation Inc., the judge found the CBA’s layoff-order provisions did not affirmatively authorize unilateral STO use — in contrast to a separate provision expressly granting the right to use PRN nurses — and that no clear and unmistakable waiver was shown. Although the union had knowledge of STO use before the limitations period began, the judge found the ongoing practice constituted a continuing violation rather than a completed, time-barred one.
Dismissed Allegations
The judge dismissed the Thanksgiving turkey claim, finding the longstanding gift was not tied to employment-related factors and thus not a mandatory subject of bargaining under Benchmark Industries. The overall bad-faith bargaining claim was also dismissed; while the hospital’s unlawful conduct hampered the union’s bargaining position, it did not establish an intent to avoid reaching agreement altogether.
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current standard for evaluating work rules, analyzing them from the perspective of an economically dependent employee and shifting the burden to the employer to justify rules that could reasonably chill Section 7 activity.
Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978): Held that hospital restrictions on employee union solicitation in public non-patient-care spaces are presumptively unlawful absent a showing of disruption to patients or operations.
Alaris Health at Castle Hill, 367 NLRB No. 52 (2018): Held that employers whose ULPs contributed to a strike are not entitled to a grace period to delay reinstating strikers when the return date was known in advance and the delay serves only to exhaust a replacement staffing contract.
MV Transportation Inc., 368 NLRB No. 66 (2019): Established the “contract coverage” test under which unilateral employer action is lawful only if the CBA’s plain language affirmatively covers and authorizes it, and otherwise requires a clear and unmistakable waiver.
Benchmark Industries, Inc., 270 NLRB 22 (1984): Held that employer gifts not based on employment-related factors — such as holiday food items given to all employees regardless of work performance — are not mandatory subjects of bargaining.
Satellite Healthcare, Inc., JD(SF)-04-26, 20-CA-340738 (ALJ Decision)
Administrative Law Judge Brian D. Gee found that Satellite Healthcare, a California-based dialysis company, violated Sections 8(a)(1), (3), and (5) of the NLRA by withholding annual merit wage increases from union-represented employees at eleven Northern California facilities in 2024, and by making coercive statements blaming the Union for that outcome.
This is the second of two unfair labor practice decisions against Satellite arising from the same organizing campaign. In the first — Satellite Healthcare, Inc., JD(SF)-08-02 — the ALJ found similar violations concerning 2023 merit increases, and the Board adopted those findings without exception in February 2026.
Section 8(a)(1) — Coercive Statements. Four supervisors and agents told employees, in various formulations, that there would be no merit increases in 2024 because the employees were unionized or in bargaining. The ALJ found these statements unlawful under the well-settled rule that employers may not blame employees’ choice of union representation for the loss of expected benefits. The ALJ rejected Respondent’s argument that the statements were merely lawful explanations of the status quo obligation, reasoning that the status quo actually required continuing the merit program — not suspending it.
Section 8(a)(3) — Discriminatory Withholding. Applying the Wright Line burden-shifting framework, the ALJ found the General Counsel established a prima facie case: union activity was known to Respondent, merit increases were withheld from represented employees while non-represented employees at the same facilities received them, and animus was demonstrated through multiple forms of direct evidence including managers’ own statements, disparate treatment, accompanying unfair labor practices from Satellite I, departure from established practice, and a pretextual justification offered to one employee. Respondent presented no witnesses and offered no credible rebuttal. The ALJ also found the withholding “inherently destructive” of Section 7 rights under the standard articulated in NLRB v. Great Dane Trailers, Inc., requiring no finding of discriminatory motive.
Section 8(a)(5) — Unilateral Change. The ALJ found that Satellite’s merit increase program — in place for over two decades, administered on a fixed annual schedule, and always resulting in some increase for eligible employees — constituted an established term and condition of employment. Respondent was therefore obligated to maintain it and bargain over any discretionary elements before making changes. The Union had explicitly waived its right to bargain over the amounts of individual increases in sidebar discussions during negotiations, removing any colorable justification for inaction. The ALJ rejected Respondent’s “Hobson’s choice” defense — the argument that granting increases would also have been unlawful — citing Hyatt Regency Memphis, which established decades ago that the prohibition is on unilateral change, not on maintaining established conditions.
The ALJ ordered Respondent to make affected employees whole for lost merit increases, with backpay plus interest compounded daily, compensation for adverse tax consequences, and standard posting and recordkeeping remedies. The ALJ declined to grant enhanced remedies — including a notice reading, extended posting of an Explanation of Rights, or an extension of union certification — finding them unwarranted on the record.
Significant Cases Cited
Wright Line Industries, 251 NLRB 1083 (1980): Established the burden-shifting framework for evaluating discriminatory motivation in employer actions alleged to violate Section 8(a)(3) of the NLRA.
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Held that certain employer conduct is “inherently destructive” of employees’ Section 7 rights and violates Section 8(a)(3) even absent proof of specific discriminatory intent.
Daily News of Los Angeles, 315 NLRB 1236 (1994): Established that an annual merit wage increase program constitutes a mandatory subject of bargaining that an employer must maintain and bargain over, notwithstanding discretion retained in setting individual raise amounts.
Airgas USA, LLC, 373 NLRB No. 102 (2024): Found that employer statements attributing the loss of wage increases to employees’ union support constituted direct evidence of discriminatory animus and independently violated Section 8(a)(1).
Hyatt Regency Memphis, 296 NLRB 259 (1989): Rejected the “Hobson’s choice” argument that an employer is caught between conflicting legal obligations when faced with an established wage increase practice during first-contract bargaining, clarifying that the prohibition is on unilateral changes to existing conditions of employment.
Touchstone Climbing, Inc., 32-RC-377918 (Regional Election Decision)
NLRB Region 32 Regional Director Christy J. Kwon directed union representation elections on February 17, 2026, for two separate employee units at Touchstone Climbing, a California rock-climbing gym company. Western States Regional Joint Board, Workers United petitioned to represent four maintenance employees and 21 routesetters, both groups servicing the company’s Bay Area facilities. The employer argued any appropriate unit must also include front desk staff, coaches, instructors, and safety staff.
The Regional Director applied the two-step framework from American Steel Construction, Inc. First, she found both petitioned-for units readily identifiable and internally cohesive — maintenance employees share a common supervisor, specialized tools, and identical job functions across facilities, while routesetters share a common supervisor, occupy a single department in the company’s organizational chart, and perform the same highly technical climb-setting function at each facility. Second, she found the employer failed to show that the excluded employees share an “overwhelming community of interest” with either unit. The departmental organization, skills, job duties, contact, and terms and conditions factors all weighed against the employer’s position, as the petitioned-for employees are separately supervised, use distinct tools, perform entirely different work, have minimal contact with other classifications, and earn different wages. Interchange and functional integration were found neutral. Elections were directed for both units, scheduled for February 25, 2026.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Restored the “overwhelming community of interest” standard for evaluating whether employees outside a petitioned-for unit must be included, overruling the more employer-favorable PCC Structurals standard.
Specialty Healthcare & Rehab. Center of Mobile, 357 NLRB 934 (2011): Established that the burden falls on the party seeking to expand a petitioned-for unit to show the excluded employees share an overwhelming community of interest with those included.
DTG Operations, Inc., 357 NLRB 2122 (2011): Held that employees performing distinct job functions not shared by other classifications weigh against a finding of an overwhelming community of interest, even in a functionally integrated operation.
Guide Dogs for the Blind, Inc., 359 NLRB 1412 (2013): Found that separate supervision and distinct departmental placement weigh against an overwhelming community of interest, even where all employees work toward a common organizational goal.
Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015 (2011): Affirmed that the burden of demonstrating an overwhelming community of interest rests with the party asserting it, and that limited contact between employee groups weighs against such a finding.