03/25/2026: Board Disposes of Seven More Ex-Cell-O Cases
Also, supervisory authority cannot be assumed by state laws governing job duties.
ArrMaz Products, Inc., 374 NLRB No. 70, 12-CA-294086 (Published Board Decision)
The Board issued a brief supplemental decision resolving a lingering remedial question in a test-of-certification refusal-to-bargain case. The underlying violation — the employer’s failure to bargain with the Union in violation of Section 8(a)(5) and (1) of the NLRA — had already been established in a 2022 decision and enforced by the Eleventh Circuit in 2024.
The only remaining issue was whether the Board should overrule Ex-Cell-O Corp. and impose a make-whole remedy compensating employees for economic losses caused by the employer’s unlawful refusal to bargain. The Board declined to do so, citing its February 2026 decision in Longmont United Hospital, in which the Board majority had already rejected departing from established remedial practice in test-of-certification cases. The General Counsel’s pending motion to withdraw the overruling request was denied as moot.
Member Prouty dissented on the remedial question, reiterating his position from Longmont United Hospital that Ex-Cell-O Corp. should be overruled and that employers should be required to make employees whole for provable, quantifiable economic harm flowing from unlawful bargaining refusals, as contemplated by Section 10(c) of the NLRA.
Significant Cases Cited
Ex-Cell-O Corp., 185 NLRB 107 (1970): Established the Board’s longstanding rule declining to impose make-whole economic remedies on employers who unlawfully refuse to bargain in test-of-certification cases.
Longmont United Hospital, 374 NLRB No. 52 (2026): Reaffirmed Ex-Cell-O Corp. and declined to expand remedies for refusal-to-bargain violations in test-of-certification cases.
ArrMaz Products Inc., 372 NLRB No. 12 (2022): The underlying Board decision finding the employer violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Union.
Universal Protection Services, LLC D/B/a Allied Universal Security Services, 374 NLRB No. 67, 12-CA-305972 (Published Board Decision)
Same as ArrMaz above.
United Scrap Metal PA, LLC, 374 NLRB No. 69, 04-CA-315904 (Published Board Decision)
Same as ArrMaz above.
VTCU Corp., 374 NLRB No. 64, 27-CA-320744 (Published Board Decision)
Same as ArrMaz above.
Siren Retail Corporation D/B/a Starbucks, 374 NLRB No. 66, 19-CA-299478 (Published Board Decision)
Same as ArrMaz above.
OAKRHEEM, INC. D/B/a HAYWARD CONVALESCENT HOSPITAL, 374 NLRB No. 65, 32-CA-294577 (Published Board Decision)
Same as ArrMaz above.
Nexstar Media, Inc. (Denver Hub), 374 NLRB No. 68, 27-CA-342707 (Published Board Decision)
Same as ArrMaz above.
Rhode Island CVS Pharmacy, L.L.C., 01-RC-342728 (Unpublished Board Decision)
The NLRB denied CVS Pharmacy’s request to review a Regional Director’s decision directing an election for a unit of pharmacists represented by The Pharmacy Guild, affiliated with the International Association of Machinists & Aerospace Workers.
The sole legal issue was whether CVS pharmacists qualify as supervisors under Section 2(11) of the NLRA — specifically, whether they hold the pharmacy technicians “accountable” for their performance in a legally meaningful sense. The Board agreed with the Regional Director that CVS failed to meet this burden. While Rhode Island law makes licensed pharmacists broadly responsible for medication dispensing and requires technicians to work under pharmacist direction, the Board held that state-law accountability does not establish that CVS itself would impose adverse employment consequences on a pharmacist based on a technician’s performance. Without non-conclusory evidence of such employer-imposed consequences — such as discipline, poor performance ratings, or other adverse effects — the accountability prong of the supervisory test is not satisfied.
Significant Cases Cited
Lynwood Manor, 350 NLRB 489 (2007): Established that accountability under Section 2(11) requires evidence that an employer would impose adverse consequences on an employee for a subordinate’s performance failures, not merely general oversight responsibilities.
Pain Relief Centers, P.A., 371 NLRB No. 70 (2022): Held that state-law accountability of a nurse for medical actions does not establish that the employer holds that nurse accountable for subordinates’ performance within the meaning of Section 2(11).
Overseas Shipholding Group, Inc., 12-RM-327039 (Unpublished Board Decision)
The National Labor Relations Board denied an employer’s request for review in a representation case involving Overseas Shipholding Group (OSG) and its subsidiary, Alaska Tanker Company (ATC). The International Organization of Masters, Mates & Pilots had demanded recognition for a unit of licensed deck officers (LDOs) working specifically on OSG-branded vessels, excluding those working on ATC-branded vessels. OSG argued the appropriate unit should be employer-wide, encompassing LDOs from both fleets.
The Board affirmed the Regional Director’s conclusion that the petitioned-for unit — limited to OSG-branded vessel LDOs — was a proper fleetwide unit under NLRA unit-determination principles. The key legal issue was whether “fleetwide” necessarily means “employer-wide.” The Board said no. Citing Moore-McCormack Lines, the Board reaffirmed that while seagoing personnel units should generally be fleetwide, an employer can operate more than one fleet. The OSG and ATC operations were found to be distinct fleets based on separate vessel branding, non-overlapping geographic routes, different wages and policies, separate reporting structures, and minimal employee transfers between the two operations.
The Board also clarified that OSG’s reliance on Inter-Ocean Steamship was misplaced because that case involved vessels that were uniformly branded, had uniform wages, and operated within the same geographic area — facts sharply distinguishable from the OSG/ATC situation. The Board further noted that a single-employer finding does not automatically make an employer-wide unit appropriate or required, citing Lawson Mardon U.S.A. and South Prairie Construction.
On a separate issue, the Board upheld the Regional Director’s finding that chief mates are not statutory supervisors. Applying the Oakwood Healthcare framework, the Board found OSG failed to show chief mates exercise independent judgment in assignment, discipline, or direction. Generalized and self-serving testimony about evaluating subordinate skill levels was deemed insufficient without concrete examples, consistent with SR-73 And Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation and Croft Metals.
Significant Cases Cited
Moore-McCormack Lines, Inc., 139 NLRB 796 (1962): Established that units of seagoing personnel should generally be fleetwide in scope, while recognizing that special circumstances may warrant deviation from that rule.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Set the standard for determining supervisory status under the NLRA, including what constitutes independent judgment in assignment, direction, and discipline.
South Prairie Construction Co. v. Operating Engineers Local 627, 425 U.S. 800 (1976): Held that a single-employer finding does not compel the conclusion that an employer-wide bargaining unit is appropriate.
Lawson Mardon U.S.A., Inc., 332 NLRB 1282 (2000): Reaffirmed that a single-employer determination does not require or even necessarily make appropriate a unit encompassing all employees of the combined entity.
SR-73 And Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation, 365 NLRB 1188 (2017): Held that general testimony about a putative supervisor considering employee skill in making assignments is insufficient to establish independent judgment without specific examples.
Phoenix Energy Management / PEM Manufacturing, 29-RD-351215 (Regional Election Decision)
Region 29 Regional Director Teresa Poor dismissed two petitions seeking a decertification election at Phoenix Energy Management, Inc. and PEM Incorporated on March 18, 2026, finding that pending unfair labor practice charges require deferral of any election.
The employer had filed an RM petition and an individual named Garrett Hansen had filed an RD petition, both seeking an election among production and maintenance employees to determine whether they wished to continue union representation by Regional Shop Local Union No. 852, Ironworkers. Before those petitions could be processed, the Region issued a consolidated complaint alleging a wide range of NLRA violations, including that the employer created an alter ego entity to divert bargaining unit work, threatened employees with layoffs, promised better wages in exchange for withdrawing union support, refused to apply the expired collective bargaining agreement to new hires, denied the union access to its Brooklyn facility, and — critically — that the employer or its agent actively assisted employees in circulating the very decertification petition at issue.
The Regional Director applied the “merit-determination dismissal” framework, which permits dismissal of a representation petition when the General Counsel has found merit in ULP charges alleging conduct that would both interfere with employee free choice and is inherently inconsistent with the petition itself. Because the complaint seeks an affirmative bargaining order — which would preclude a question concerning representation — further processing of the petitions is not currently warranted. Additionally, because the RD petitioner was alleged to have acted as an agent of the employer in soliciting signatures, the showing of interest supporting the petition was itself tainted. The Regional Director noted that in cases involving an 8(a)(5) refusal to bargain with an incumbent union, a causal nexus between the unlawful conduct and any subsequent loss of majority support may be presumed, obviating the need for a separate nexus analysis.
The dismissals are without prejudice; the petitioners may seek reinstatement only if the ULP allegations are ultimately found to be without merit.
Significant Cases Cited
Rieth-Riley Construction Co., 371 NLRB No. 109 (2022): Defined “merit-determination dismissals” and articulated the standard for dismissing representation petitions when the General Counsel finds merit in ULP charges that would irrevocably taint the petition or related election.
Overnite Transportation Co., 333 NLRB 1392 (2001): Established that the Board will dismiss a representation petition, subject to reinstatement, where a concurrent ULP complaint alleges conduct that would interfere with employee free choice and is inherently inconsistent with the petition itself.
Wire Products Mfg. Co., 326 NLRB 625 (1998): Held that an employer violates Section 8(a)(1) of the NLRA by actively soliciting, encouraging, or assisting employees in initiating, signing, or filing a decertification petition.
Lee Lumber & Building Materials Corp., 322 NLRB 175 (1996): Established that in cases involving an 8(a)(5) refusal to recognize and bargain with an incumbent union, a causal relationship between the unlawful conduct and a subsequent loss of majority support may be presumed.
Eastern States Optical Co., 275 NLRB 371 (1985): Articulated the standard for evaluating whether employer assistance with a decertification petition was unlawful by asking whether the preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees.
Meow Wolf, Inc., 28-RM-341292 (Regional Election Decision)
Meow Wolf, Inc., an immersive arts and entertainment company based in Santa Fe, New Mexico, filed an RM petition challenging the appropriateness of a bargaining unit sought by the Communications Workers of America. The union had demanded voluntary recognition for a unit of Creative Directors (CDs) and Art Directors (ADs) in all classifications. The employer argued these employees were managerial and therefore excluded from NLRA coverage, and separately argued that the sole Senior Art Director (SAD) did not share a community of interest with the proposed unit.
Managerial Status
Regional Director Cornele Overstreet applied the standard from Republican Co. and NLRB v. Yeshiva University, under which managerial employees are those who formulate and effectuate high-level employer policies or exercise discretion independent of established employer policy. The burden rests on the party asserting managerial status.
The Regional Director found the employer failed to meet that burden for either the CD or AD classifications. The record showed that CDs at all levels — including Principal CDs and Senior CDs — operate within parameters set by the employer’s executive leadership, Creative Council, and Controls Gate, and that their work is subject to approval at each stage. Citing Holly Sugar Corp., the decision noted that making some decisions “within established limits set by higher management” does not confer managerial status. The employer’s argument that CDs align with management interests and effectuate high-level policy was rejected because the record demonstrated that their creative proposals could be rejected by leadership just as readily as those of lower-level employees.
As for the SAD, the employer’s argument rested almost entirely on the fact that the sole SAD, Benjamin Geary, is also a company co-founder and sits on the employer’s Creative Council. The Regional Director found this argument unavailing because the record failed to establish any connection between the SAD job classification and co-founder duties. Geary did not testify, and the SAD job description contained no reference to co-founder responsibilities. The decision noted that Geary reports to a supervisor — as do nine other CDs — while no evidence showed other co-founders have supervisors or report within the same chain of command.
Community of Interest
Applying the American Steel Construction, Inc. framework, the Regional Director found that the CDs and SAD across all classifications share a community of interest. The employees are organized within the same department structure, perform similar creative work, are subject to the same Creative Council and Controls Gate oversight, and several share the same direct supervisor. The employer offered no meaningful evidence to distinguish the SAD from the broader unit.
The Regional Director directed a mixed manual-mail ballot election — manual voting at the Santa Fe facility on April 2, 2026, and mail ballots for two remote employees — citing San Diego Gas & Electric as authority for using mixed-method elections where a portion of the unit is geographically scattered.
Significant Cases Cited
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Established the Supreme Court’s definition of managerial employees as those who formulate and effectuate management policies and whose alignment with management creates a potential conflict of interest with fellow employees.
Republican Co., 361 NLRB 93 (2014): Restated the Board’s standard for managerial employee status and confirmed that the party asserting such status bears the burden of proof.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare community-of-interest standard for determining appropriate bargaining units, overruling the more restrictive PCC Structurals framework.
Holly Sugar Corp., 193 NLRB 1024 (1971): Held that an employee does not acquire managerial status merely by making decisions or exercising judgment within limits established by higher management.
San Diego Gas & Electric, 325 NLRB 1143 (1998): Set forth the criteria under which mail or mixed manual-mail ballot elections are appropriate, including where eligible voters are geographically scattered.
Mid-Western Car Carriers, Inc., 14-RC-376290 (Regional Election Decision)
Regional Director Andrea J. Wilkes found that a single-facility unit of approximately 41 drivers at the employer’s Kansas City hub is appropriate under the NLRA, rejecting the employer’s argument that the unit must include all drivers across its nine-hub national network.
Applying the five-factor test from Trane and J & L Plate, the Regional Director found the employer failed to rebut the presumptive appropriateness of the single-facility unit under Hilander Foods. Although Kansas City exercises centralized control over hiring, firing, HR, and training, local dispatchers and operations supervisors retain meaningful day-to-day authority over drivers at each hub, per Esco Corporation. On interchange, the employer’s evidence — driver logs covering only 14 of 78 drivers over roughly four months — lacked the contextualizing data required by New Britain Transportation Co., and driver testimony showed transfers were largely voluntary. On distance, all other hubs are at least 255 miles from Kansas City, strongly favoring the petitioned-for unit. Working conditions in Kansas City also differ meaningfully from other hubs, as drivers there run up to four loads daily, never require sleeper cabs, and have on-site maintenance access. Bargaining history was neutral. A secret-ballot election is scheduled for April 10, 2026.
Significant Cases Cited
Hilander Foods, 348 NLRB 1200 (2006): Centralized control alone does not rebut the single-facility presumption where significant local autonomy exists.
New Britain Transportation Co., 330 NLRB 397 (1999): Interchange data lacking contextualizing percentages or totals has insufficient evidentiary value to rebut the single-facility presumption.
Esco Corporation, 298 NLRB 837 (1990): Limited local oversight by a non-statutory supervisor can still support a single-facility unit finding.
Trane, 339 NLRB 866 (2003): Articulated the multi-factor test for determining single-facility unit appropriateness.
Starbucks Corp., 371 NLRB No. 71 (2022): Cross-location interchange covering roughly two percent of shifts was too limited to establish regular interchange among employees at different locations.