04/22/2026: Three ALJ Decisions
Unlawful interrogation, failure to bargain layoffs, premature recognition withdrawal.
Centers for Family Medicine, GP and HealthCare Partners Medical Group, P.C., JD(SF)-06-26, 21-CA-333729 (ALJ Decision)
An ALJ found that two Southern California physician management companies within the Optum/UnitedHealth Group corporate family violated the NLRA by conducting a mass layoff without bargaining and later withdrawing recognition of a newly certified union.
The Union of American Physicians and Dentists was certified in August 2023 to represent approximately 45 hospitalist physicians at several Orange County hospitals. Less than two months later, the employers terminated 10 unit physicians effective January 25, 2024, immediately relieving them of duties on October 26 as part of a pre-planned shift from fee-for-service to managed care.
The ALJ held the layoff decision was a mandatory subject of bargaining, rejecting the employers’ argument that it fell within the “core entrepreneurial control” exception of First National Maintenance Corp. v. NLRB. Because the employers continued providing the same services using contractors rather than employed hospitalists, the ALJ found the change more analogous to Fibreboard subcontracting — a change in degree, not kind. On effects bargaining, the ALJ found the employers’ simultaneous notification to the union and affected physicians, combined with the prior unilateral completion of the employee-selection process, foreclosed any meaningful opportunity to bargain. Post-hoc offers to discuss effects were insufficient. Under Wendt Corporation, the employers’ obligation was to bargain before implementing the change, not after.
The employers’ March 2025 withdrawal of recognition fared no better. Relying on an attorney’s unverified email claiming declarations from 70 percent of the unit, the employers failed to satisfy the objective-evidence standard under Levitz Furniture. The ALJ also found the withdrawal independently unlawful because the mass termination — which stripped 10 of approximately 45 unit members from the workplace shortly after certification — tainted any subsequent expression of lost support under the Master Slack Corp. four-factor framework. The ALJ ordered reinstatement, full backpay, make-whole relief under Thryv, and restoration of recognition.
Significant Cases Cited
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964): Established that subcontracting bargaining-unit work without altering the basic nature of the business is a mandatory subject of bargaining.
First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Created a narrow exception to the bargaining duty for decisions involving fundamental changes to the scope and direction of the enterprise.
Wendt Corporation, 372 NLRB No. 135 (2023): Reaffirmed that employers must bargain before making unilateral changes during first-contract negotiations, overruling Raytheon Network Centric Systems.
Levitz Furniture Co., 333 NLRB 717 (2001): Required employers to possess objective evidence of an incumbent union’s actual loss of majority support before withdrawing recognition.
Master Slack Corp., 271 NLRB 78 (1984): Established the four-factor test for determining whether unfair labor practices tainted a decertification effort or withdrawal of recognition.
Asarco, LLC, JD(SF)-05-26, 28-CA-255235 (ALJ Decision)
An administrative law judge (ALJ) issued a decision in a sprawling case arising from ASARCO LLC’s negotiations with the United Steelworkers and several other unions for a successor basic labor agreement (BLA). The case spans events from the 2018–2019 contract talks through the ensuing strike and its aftermath, involving allegations of bad-faith bargaining, unlawful unilateral changes, picket-line surveillance, and discriminatory post-strike discipline.
Bargaining / Impasse
The General Counsel alleged that ASARCO bargained in bad faith across numerous dimensions — including failure to meet at reasonable times, insistence on predictably unacceptable proposals (wages, health insurance, pension, and the copper price bonus), and inadequate responses to information requests — causing the October 2019 strike to be a ULP strike and the December 2, 2019 implementation of the last, best and final offer (LBFO) to be unlawful. The ALJ rejected all of these claims. Applying the five-factor impasse framework from Taft Broadcasting Co., the ALJ found the parties reached a genuine good-faith impasse on the critical economic issues of wages, health insurance, and pension after approximately a year of negotiations. ASARCO’s delays were attributed primarily to proposal preparation and responses to the union’s own information requests, and the record reflected both parties contributed to abbreviated bargaining sessions. The ALJ further found that the union’s post-impasse information requests were tactical delay devices submitted to avoid a valid impasse declaration, relying on ACF Industries, LLC. ASARCO’s LBFO implementation was therefore lawful, and the strike was an economic — not an unfair labor practice — strike.
Picket-Line Surveillance
The ALJ found that ASARCO’s contracted security firm, AFIMAC, engaged in unlawful surveillance (or gave the impression of surveillance) of picketers at the Mission and Silver Bell facilities by video recording their picketing activities, in violation of Section 8(a)(1). However, the record did not support finding surveillance at the Ray Complex or Hayden facilities.
Post-Strike Violations
The ALJ found multiple violations in the post-strike period. ASARCO continued to recruit replacement workers after the union made an unconditional offer to return to work on July 6, 2020, violating Laidlaw‘s reinstatement obligations under Section 8(a)(3) and (1); the number of affected employees was left for compliance. ASARCO also committed Section 8(a)(5) violations by unilaterally changing payroll dates at the Ray and Hayden facilities and implementing a fatigue monitoring system in haul trucks without bargaining to impasse. Additional violations were found concerning unilateral changes at the Amarillo and Hayden facilities — including reduction of rod-line shifts, position eliminations, and duty reassignments — and the discriminatory termination of seniority and layoff of employees at both facilities in 2021.
Individual Discriminatees
Applying Wright Line, the ALJ found that ASARCO violated Section 8(a)(3) and (1) by suspending and terminating employees Ben Lucero and Eli Laracuente. In Lucero’s case, the ALJ found evidence of disparate treatment — non-striking employees who committed similar or more serious safety infractions received last-chance agreements, while Lucero, a returned striker, did not — and that management’s proffered justification was unsupported by the record. Allegations concerning employees Puhara and McCray were recommended for dismissal.
Remedy
The ALJ ordered standard make-whole remedies including reinstatement and backpay computed under F.W. Woolworth Co., interest per New Horizons, compounded daily per Kentucky River Medical Center, and expanded make-whole remedies for direct and foreseeable pecuniary harms per Thryv, Inc.
Significant Cases Cited
Laidlaw Corp., 171 NLRB 1366 (1968): Established the framework governing an employer’s obligation to reinstate economic strikers upon their unconditional offer to return to work.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing discriminatory discharge cases under Section 8(a)(3), requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the NLRB’s make-whole remedy to include direct and foreseeable pecuniary harms beyond traditional backpay.
Taft Broadcasting Co., 163 NLRB 475 (1967): Set forth the five-factor framework used to determine whether a genuine bargaining impasse exists.
ACF Industries, LLC, 347 NLRB 1040 (2006): Held that a union’s information requests submitted primarily to delay a valid impasse declaration — after months of extensive bargaining — do not forestall a lawful LBFO implementation.
Wrightsville Firewater LLC D/B/a John Wright Restaurant, JD-21-26, 05-CA-331875 (ALJ Decision)
A Pennsylvania restaurant illegally fired a server, maintained an unlawful wage-discussion policy, and interrogated employees about protected activity, an ALJ ruled April 21.
MacKenzie Caterbone worked as a server and banquet bartender at Wrightsville Firewater LLC d/b/a John Wright Restaurant. After she discussed tip distributions with coworkers and complained to a supervisor that the owner was improperly tipping himself, owner James Switzenberg fired her by text, explicitly citing “talking about pay” as grounds. At trial, Switzenberg claimed the real reason was that Caterbone had accessed a confidential tip sheet from a manager’s office — a justification ALJ Arthur Amchan rejected as fabricated, noting it appeared nowhere in the termination text or Switzenberg’s Board affidavit, and that the record did not establish Caterbone had entered the office at all.
Applying Wright Line, Amchan found the General Counsel established protected activity as a motivating factor and that the employer’s alternative explanation was pretextual. Caterbone’s wage discussions were inherently concerted under Aroostook County Regional Ophthalmology Center, and her complaints about tip distribution — including on behalf of a coworker — were independently protected under Senior Citizens Coordinating Council and Butler Medical Transport.
A staff memo prohibiting employees from discussing “salaries, hourly wages, and tip-outs” was separately found unlawful. The employer argued the memo’s author lacked authority to bind the company, but Amchan found she acted as an agent because employees would reasonably have understood her to speak for management. Before firing Caterbone, Switzenberg also questioned two coworkers about who had been discussing tips — unlawful interrogation under Rossmore House, the ALJ found, with no legitimate justification and no assurances against reprisal.
The ALJ ordered reinstatement, full backpay, search-for-work expenses, and rescission of the wage-discussion rule.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for mixed-motive discharge cases, requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer.
Rossmore House, 269 NLRB 1176 (1984): Sets out the factors for evaluating whether employer questioning of employees constitutes unlawful interrogation under the NLRA.
Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995): Holds that employee wage discussions are inherently concerted and protected under Section 7 of the NLRA.
Senior Citizens Coordinating Council, 330 NLRB 1100 (2000): Holds that complaints about tip apportionment are protected concerted activity because tip distribution directly affects terms and conditions of employment.
Butler Medical Transport, 365 NLRB 1095 (2017): Holds that an employee’s complaint on behalf of a coworker, rather than solely herself, does not strip the activity of its protected status.