04/13/2026: ALJ Amchan Adopts Narrow Reading of McLaren Macomb
Board affirms third-party appeals must indicate labor dispute to be protected.
Korean Resource Center, Inc., 374 NLRB No. 94, 31-CA-282645 (Published Board Decision)
The Board adopted an ALJ’s dismissal of an unfair labor practice complaint against a Los Angeles nonprofit, finding that the discharge of a communications manager did not violate the NLRA.
The employer, KRC, discharged Sangho Hwang — its communications manager and a union representative — after he sent an unsolicited email to a third-party community activist critiquing a mural design being installed on KRC’s building. The union and General Counsel argued the email was protected concerted activity aimed at shielding coworkers from racially offensive imagery.
The ALJ found that while Hwang’s email grew out of prior concerted activity among KRC employees and thus qualified as “concerted,” it failed on two independent grounds. First, applying the “mutual aid and protection” standard, the ALJ concluded the email’s thrust was not employees’ working conditions but rather KRC’s public image and its relationships with community partners and funders — an entrepreneurial prerogative belonging to management. Second, applying Jefferson Standard, the ALJ found that even if the email had been initially protected, it lost that protection because it failed to put the third-party recipient on notice of an ongoing labor dispute — instead reading as an internal management disagreement, requiring an impermissible “inferential leap” to infer a labor-management conflict.
On the Section 8(a)(5) bargaining obligation, the ALJ applied 800 River Road and found no duty to bargain before discharging a unit employee under an established disciplinary policy, even absent prior comparable discipline.
The Board affirmed all findings without additional analysis, but two footnotes are notable. First, the Board declined to overrule 800 River Road (though Member Prouty signaled openness to revisiting it), mooting the Acting GC’s motion to withdraw an exception seeking that result. Second, the Board found it unnecessary to reach the Jefferson Standard disloyalty analysis, having agreed with the ALJ that the email lacked the required labor-dispute nexus.
Significant Cases Cited
NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953): Employee communications with third parties lose NLRA protection if they fail to disclose the existence of an ongoing labor dispute or are so disloyal as to constitute “cause” for discharge.
800 River Road Operating Co., 369 NLRB No. 109 (2020): Employers are not required to bargain with a newly certified union before disciplining unit employees under an established disciplinary policy or practice.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Defines the outer limits of Section 7’s “mutual aid or protection” clause, holding that the connection between employee conduct and their interests as employees can become too attenuated to qualify for protection.
Xcel Protective Services, 371 NLRB No. 134 (2022): Third-party appeals retain NLRA protection only when they provide sufficient context to put the recipient on notice of an ongoing labor dispute without requiring an inferential leap.
In re American Golf Corp. (Mountain Shadows), 330 NLRB 1238 (2000): Establishes the two-part test for determining whether third-party communications retain NLRA protection: the communication must signal a labor dispute and must not be so disloyal, reckless, or maliciously untrue as to forfeit protection.
University of Dayton, JD-20-26, 09-CA-362228 (ALJ Decision)
The University of Dayton notified 45 professional staff members, including biology lecturer Lis Regula, that their annual employment agreements would not be renewed, then presented them with a Separation and Release Agreement. The General Counsel challenged the agreement’s nondisclosure provision as an unlawful interference with Section 7 rights under Section 8(a)(1) of the NLRA.
ALJ Amchan dismissed the complaint on two grounds. First, he read McLaren Macomb narrowly, concluding its holding applies only where the employer has committed other unfair labor practices — a circumstance not present here. Any broader implication that a facially overbroad confidentiality clause alone violates the NLRA, he held, is dicta he was not obligated to follow. Second, applying the reasonable-employee standard, he found the nondisclosure clause not coercive on its face: a reasonable employee would understand “confidential personnel information” to refer to information about other employees — not to their own protected concerted activity such as discussing wages. He also distinguished McLaren Macomb factually, noting that the agreements there contained a broad non-disparagement clause absent here.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): The Board held that proffering a severance agreement whose terms have a reasonable tendency to interfere with Section 7 rights violates Section 8(a)(1) of the NLRA.
Baylor University Medical Center, 369 NLRB No. 43 (2020): The Board held that a facially overbroad severance agreement does not violate the NLRA absent independently coercive circumstances surrounding its proffer.
IGT, 370 NLRB No. 50 (2020): Companion decision to Baylor University applying the same standard permitting facially overbroad severance terms absent coercive circumstances.
Clark Distribution Systems, 336 NLRB 747 (2001): Earlier Board precedent that Baylor University and IGT departed from, cited to illustrate the doctrinal history underlying McLaren Macomb.