05/07/2026: ALJ Recommends Gissel Bargaining Order in IATSE Case
USPS employee's TikTok video about pay cut was concerted activity.
A-V Services, Inc., JD-25-26, 22-CA-332620 (ALJ Decision)
An ALJ has found that A-V Services, Inc., a national audiovisual technology provider, committed multiple unfair labor practices against a small unit of six technicians at its Jersey City, New Jersey facilities after those employees sought representation by IATSE Local 59 in mid-2023. The ALJ recommended a Gissel bargaining order on top of the election-setting-aside remedy.
The Violations
The ALJ sustained several distinct theories of liability. First, applying Wright Line, she found that A-V unlawfully ceased assigning Jersey City technicians to work at other locations — particularly the Brooklyn facility — specifically to prevent “cross-pollination” of union sentiment. The site manager’s own words, credited over his later denials, established both the fact of the policy change and its union-related motivation. A-V’s proffered justification — that a remediation team handled the relevant Brooklyn power event — was found pretextual because the company offered no explanation for why it substituted that team for the Jersey City technicians who had routinely performed such work in the past.
The ALJ also found that A-V unlawfully reduced the technicians’ overtime hours, again under Wright Line, relying on credited testimony that supervisors explicitly linked the hour reductions to the organizing campaign and that A-V introduced a new documentation requirement for unscheduled overtime around the same time.
On the wage-withholding allegation, the ALJ applied NLRB v. Great Dane Trailers rather than Wright Line, finding the policy facially discriminatory because A-V implemented a market-rate wage increase companywide in spring 2023 but withheld it exclusively from the Jersey City unit while the election petition was pending. A-V’s account executive admitted as much. The ALJ rejected A-V’s argument that withholding the increase was legally required to avoid election interference, consistent with Board precedent holding that neither good-faith uncertainty nor fear of ULP charges justifies withholding increases that otherwise would have been granted. The employer’s failure to inform employees that they would eventually receive the increase — a safe harbor the Board has recognized — was undisputed.
The ALJ further found that the sudden and dramatically increased presence of higher-level managers at the Jersey City location created the impression of surveillance in violation of Section 8(a)(1), and that the account executive’s private meeting with a technician on election day, in which he discussed promotional opportunities while implying they would evaporate if the union won, constituted an unlawful implied threat of loss of promotional opportunity.
The ALJ dismissed the discipline allegations. She credited the supervisor’s account of the underlying incidents over the employee’s admittedly hazy recollection, found that the employer’s prior handling of attendance issues did not rise to condonation given the employee’s short tenure, and concluded that comparable employees had been disciplined in comparable fashion.
The Bargaining Order
The ALJ recommended a Gissel bargaining order, finding that the wage-withholding — implemented across all but the Jersey City location and not corrected until two years after the election — constituted a “hallmark” violation with lasting effects on the unit. She noted that the technicians’ compounded annual raises continued to lag because subsequent increases were calculated off the lower base rate, meaning the harm persisted through the hearing date. Combined with the other violations’ reach across all six unit members, the ALJ concluded a rerun election would be inadequate.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing whether protected activity was a motivating factor in an employer’s adverse employment action.
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Supreme Court decision establishing that facially discriminatory employer conduct that is “inherently destructive” of employee statutory rights requires no proof of anti-union motivation to sustain a violation.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Supreme Court decision authorizing bargaining orders where employer unfair labor practices make a fair rerun election unlikely and card-based majority status is established.
Longmont United Hospital, 373 NLRB No. 97 (2024): Applied Great Dane Trailers to hold that withholding wage increases at facilities subject to a pending representation election, while implementing them elsewhere, violates Sections 8(a)(1) and (3).
Starbucks Corp., 374 NLRB No. 10 (2024): Applied impression-of-surveillance doctrine and Gissel bargaining order analysis in the context of a high-profile organizing campaign, finding that unprecedented corporate executive presence at store locations created unlawful impression of surveillance.
Riverwood Center, LLC, JD-27-26, 12-CA-334715 (ALJ Decision)
An ALJ dismissed an unfair labor practice complaint and overruled a remaining election objection against Riverwood Center, LLC, a Jacksonville, Florida nursing and rehabilitation facility, finding that the General Counsel failed to prove by a preponderance of the evidence that the employer interrogated employees about their union activities or created an impression of surveillance during the critical period before a January 2024 representation election.
The case turned almost entirely on credibility. The key witness, Jacquelin Norris — a former concierge who had spearheaded the organizing drive by distributing and collecting over 100 authorization cards — testified that facility administrator Jessa Collins called her at home before the election and told her that her name “kept coming up” when Collins was questioning employees about the union. ALJ Michael Rosas found that testimony did not hold up. Collins credibly denied making the call, and Norris was impeached by her own sworn Board affidavit, which told a materially different story about the conversation. Norris also exhibited bias stemming from her belief that Collins had retaliated against her daughter and husband, neither of which was corroborated.
Applying the totality-of-circumstances test drawn from Rossmore House and the factors set out in Bourne v. NLRB, the ALJ acknowledged that Norris’s testimony, if credited, would have satisfied the elements of a prima facie Section 8(a)(1) coercive interrogation — the information sought went to union involvement, Collins was the highest-ranking manager, and Norris denied her activities. But because the ALJ credited Collins’s denial over Norris’s inconsistent accounts, the complaint did not survive. The election objection mirroring the interrogation allegation fell for the same reason.
Significant Cases Cited
Rossmore House, 269 NLRB 1176 (1984): Established the “totality of circumstances” standard for evaluating whether employer questioning of employees constitutes unlawful interrogation under Section 8(a)(1).
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964): Set out the multi-factor test — including employer hostility, nature of information sought, rank of questioner, place and method of questioning, and truthfulness of reply — used to assess coercive interrogation claims.
Nielsen Dental PC, JD(SF)-10-26, 19-CA-351178 (ALJ Decision)
An ALJ has found that a Helena, Montana dental practice violated Section 8(a)(1) of the NLRA by instructing a receptionist not to discuss a collections bonus, citing that discussion as grounds for her discharge, and then discharging her.
The Bonus Discussion. Office manager Tammy Odegard told receptionist Suzanne King on September 5, 2024, not to tell back-office staff about a $500 collections bonus available only to front-desk employees. King nonetheless texted a dental assistant about the bonus and the broader question of whether compensation was fairly distributed across the office. The ALJ found the instruction unlawful under Automatic Screw Products Co. and Hobson Bearing International—both holding that prohibitions on discussing wages and bonuses violate the NLRA—and rejected the employer’s business-justification defense, citing the Third Circuit’s observation in Jeannette Corp. v. NLRB that potential jealousy among employees does not justify restricting Section 7 rights. The ALJ further found that both King’s termination letter and a post-termination conversation with Odegard independently violated the Act by linking the discharge to the protected bonus discussion, relying on Benesight, Inc.
The Huff Warning. King also told a newer dental assistant, Payton Huff, that she needed to improve her performance if she wanted to keep her job—a conversation that led Huff to resign. The ALJ found this was protected concerted activity under Hoodview Vending Co. and Component Bar Products, which hold that job-security discussions are “inherently concerted” and that warning a coworker of job-security risks is protected where the purpose is to help the coworker retain employment. The Respondent argued King spread false information because management had not yet decided to fire Huff, but the ALJ applied the Valley Hospital Medical Center standard—statements lose protection only if maliciously untrue, not merely inaccurate—and concluded King’s honest, if imprecise, warning did not cross that line.
Wright Line Analysis. Under the mixed-motive framework of Wright Line, the ALJ found the General Counsel established animus through the timing of the discharge (within days of the protected conduct), the presence of other unfair labor practices, and shifting employer explanations—attendance, never mentioned in the termination letter or the state labor agency response, was offered as a primary reason only in post-hearing briefing. The Respondent failed to carry its rebuttal burden: the tolerated attendance issues became a stated reason only after King’s protected activity, and the asserted “loss of trust” rested on the very wage discussions the NLRA protects.
The ALJ ordered reinstatement, backpay with interest compounded daily under New Horizons and Kentucky River Medical Center, compensation for other foreseeable pecuniary harms under Thryv, Inc., and tax-consequence make-whole relief under AdvoServ of New Jersey.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for mixed-motive discharge cases under the NLRA.
Meyers Industries (Meyers II), 281 NLRB 882 (1986): Defined “concerted activity” as conduct engaged in with the object of initiating, inducing, or preparing for group action, or with some relation to group action.
Hoodview Vending Co., 362 NLRB 690 (2015): Extended the “inherently concerted” doctrine to job-security discussions on the same rationale as wage discussions.
Valley Hospital Medical Center, 351 NLRB 1250 (2007): Held that employee statements lose NLRA protection only if maliciously untrue—knowingly false or made with reckless disregard for their truth or falsity.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the make-whole remedy to include compensation for all direct or foreseeable pecuniary harms flowing from an unlawful discharge.
United States Postal Service, JD-26-26, 12-CA-316287 (ALJ Decision)
An administrative law judge found that the U.S. Postal Service violated the NLRA when it disciplined two Florida postal workers for social media posts and workplace photography related to their working conditions.
The Kirkconnell Case
When rural letter carrier Kellman Kirkconnell learned his pay would drop by roughly $12,000 under a route evaluation system, he recorded a short video on the workroom floor and posted it to TikTok. The video discussed the pay cuts affecting him and his colleagues. His supervisor later ordered him to remove that video and a follow-up video he recorded at home, telling him he was “being watched” and that “anything you post . . . is being watched . . . anywhere.” The Postal Service ultimately issued a notice of removal, later reduced through grievance settlement to a seven-day suspension.
The ALJ found that Kirkconnell’s TikTok posts were protected concerted activity. Though Kirkconnell posted partly to vent his frustration, the ALJ applied the objective concertedness standard from Meyers Industries and concluded the posts were aimed at other employees dealing with the same pay adjustments — an exchange of mutual concern about wages and schedules. Applying the totality-of-the-circumstances test from Pier Sixty, the ALJ found the posts did not involve misconduct sufficient to forfeit the NLRA’s protection. Kirkconnell used no profanity, made only mild implied criticism of the Postal Service, and the videos did not actually display customer addresses despite the employer’s assertions to the contrary.
The ALJ also found two of the Postal Service’s conduct standards overbroad under Stericycle. ELM 665.16 — which required employees to conduct themselves “in a manner that reflects favorably upon the Postal Service” and prohibited conduct “prejudicial” to it — was held presumptively unlawful because employees would reasonably read it to bar protected complaints about working conditions. The Postal Service failed to show the rule could not be more narrowly tailored. The ALJ separately found that the supervisor’s surveillance warning and her directives to remove protected social media posts violated Section 8(a)(1), though the ALJ dismissed the allegation of actual unlawful surveillance, finding the General Counsel did not prove the Postal Service acted in an out-of-the-ordinary manner to monitor Kirkconnell’s public posts.
The Williams Case
Mail handler Keren Williams photographed a mail-sorting machine (ADUS) overflowing onto the floor, intending to report the hazardous condition to her supervisor under Article 14 of her collective bargaining agreement. She showed the picture to a manager and deleted it when told to do so. She received a notice of removal, also reduced to a seven-day suspension through settlement.
The ALJ found Williams engaged in protected concerted activity under the Board’s Interboro doctrine: an employee’s individual assertion of a right grounded in a collective bargaining agreement constitutes concerted activity, even when acting alone. Citing NLRB v. City Disposal Systems, the ALJ noted that an employee’s honest and reasonable invocation of a contract right remains protected even if the employee turns out to be wrong about the contract’s scope. The ALJ further held that the Postal Service’s blanket no-camera rule (MI AS-882-2011-6), which prohibited cell phone cameras throughout postal facilities without any carve-out for statutorily protected uses, was overbroad under Stericycle because it failed to exclude instances where photography is protected by Section 7. The ALJ ordered both rules rescinded to the extent they sweep in protected activity, and directed that references to both employees’ discipline be expunged from their files.
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Reinstated and clarified the standard for evaluating overbroad work rules, requiring that rules be assessed from the perspective of an economically dependent employee contemplating protected activity, with employers bearing the burden of proving a narrowly tailored legitimate interest.
NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Affirmed the Interboro doctrine, holding that an individual employee’s honest and reasonable assertion of a collectively bargained right constitutes concerted activity protected by Section 7.
Pier Sixty LLC, 362 NLRB 505 (2015): Established a multi-factor totality-of-the-circumstances test for determining whether an employee’s social media activity involving workplace complaints retains the NLRA’s protection.
Meyers Industries, Inc., 268 NLRB 493 (1984) (Meyers I) and 281 NLRB 882 (1986) (Meyers II): Defined concerted activity as action taken with or on the authority of other employees, including efforts to initiate or prepare for group action over shared employment concerns.
NLRB v. Electrical Workers UE Local 1229 (Jefferson Standard), 346 U.S. 464 (1953): Held that employees may lose NLRA protection for publicly disparaging their employer’s product or service in a manner unrelated to a labor dispute.
Detrex Corporation, JD-29-26, 08-CA-343335 (ALJ Decision)
An ALJ ruled that an Ohio chemical manufacturer violated the NLRA by presenting a terminated employee with a severance agreement containing overbroad non-disparagement and confidentiality provisions. The case turns entirely on the Board’s 2023 decision in McLaren Macomb, which remains controlling law and which the ALJ declined to revisit.
The employer, Detrex Corp., presented bargaining unit employee Timothy Batanian with a “Release of All Claims” agreement upon his termination in May 2024. The agreement conditioned two weeks’ severance pay on his acceptance of a non-disparagement clause barring any negative statements — oral, written, or on social media — about a broadly defined group of corporate entities, and a confidentiality clause prohibiting him from disclosing any information he acquired during employment. Neither provision had a time limit.
The agreement included two carve-outs: language stating that employees could still file charges with the NLRB or EEOC, and language in each clause stating that nothing would “prohibit Employee from engaging in activity protected under Section 7 of the National Labor Relations Act.” The ALJ rejected both as cures. On the Section 7 carve-outs, the ALJ applied Stericycle, Inc. to hold that a mere reference to “Section 7 rights” provides no meaningful protection because rank-and-file employees cannot reasonably be expected to know what that phrase means — a point underscored when Batanian himself admitted he did not. On the NLRB/EEOC savings clause, the ALJ found it independently problematic because it explicitly prohibited employees from receiving “any form of recovery or compensation” from agency proceedings, which under Kelly Services, Inc. and 20/20 Communications, Inc. unlawfully undermines the Board’s remedial authority.
Detrex advanced three defenses. It argued McLaren Macomb should be overruled, pointing to Acting GC William Cowen’s February 2025 memorandum rescinding the earlier McLaren Macomb guidance memo. The ALJ flatly rejected this, noting that GC memoranda are not binding on ALJs or the Board, and citing Prime Communications, LP for the proposition that McLaren Macomb remains in force. Detrex next argued that changing the severance agreement language would constitute a unilateral change violating Section 8(a)(5) — an argument the ALJ dismissed because severance agreements were never addressed in bargaining or incorporated into the parties’ collective bargaining agreement. Finally, Detrex raised a timeliness defense under Section 10(b), which the ALJ rejected because the original charge, filed May 29, 2024, adequately encompassed the challenged conduct.
The ALJ ordered Detrex to rescind the offending provisions, notify affected current and former employees in writing, and post the standard Board notice for 60 days.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): Established that proffering a severance agreement with provisions that condition benefits on forfeiture of NLRA rights violates Section 8(a)(1), regardless of the circumstances under which the agreement is offered.
Stericycle, Inc., 372 NLRB No. 113 (2023): Held that workplace rules must be evaluated from the perspective of a reasonable non-lawyer employee, not from a legal interpretation of the text.
Kelly Services, Inc., 368 NLRB No. 130 (2019): Found that a severance agreement provision waiving an employee’s right to monetary remedies in Board proceedings unlawfully undermines the Board’s authority and employees’ incentive to file charges.
20/20 Communications, Inc., 369 NLRB No. 119 (2020): Reaffirmed that barring employees from obtaining monetary remedies through Board proceedings violates Section 8(a)(1) by interfering with the Board’s remedial processes.
Prime Communications, LP, 374 NLRB No. 88 (2026): Confirmed that McLaren Macomb remains controlling Board law, notwithstanding the Acting General Counsel’s rescission of related guidance memoranda.
Trax International Corporation, 28-RC-375549 (Regional Election Decision)
A Regional Director has directed a self-determination election for 11 system administrators employed by defense contractor Trax International Corporation at the U.S. Army Yuma Proving Ground in Arizona. The International Association of Machinists and Aerospace Workers (IAM) Local SC3311, which already represents roughly 700 Trax employees at the facility, is seeking to add the system administrators to its existing bargaining unit.
Professional and Confidential Employee Claims Rejected
The employer argued the system administrators should be classified as professional employees under Section 2(12) of the NLRA — a status that would require a separate self-determination vote before they could be included in a mixed unit. The Regional Director rejected that argument on all four statutory grounds. The work, while technically demanding, is performed within established DOD security frameworks and approved tools, making it skilled technical work rather than the predominantly intellectual, varied work the Act requires. The positions also permit qualification through experience or military training in lieu of a formal degree, which means they don’t satisfy the requirement for advanced knowledge acquired through a prolonged course of specialized intellectual instruction — a bar that industry certifications like CompTIA Security+ don’t clear.
The employer’s confidential employee claim fared no better. Under the Board’s strict labor-relations nexus test, an employee must both assist individuals who formulate labor-relations policy and have regular access to confidential labor-relations information. The system administrators report to supervisors with no labor-relations authority, have no access to grievance files or bargaining strategy, and play no role in discipline or contract administration. Access to billing data and government performance evaluations — the primary basis for the employer’s claim — doesn’t meet that standard.
Community of Interest
The closer question was whether the system administrators share a sufficient community of interest with the existing bargaining unit to make inclusion appropriate. The Regional Director found that they do, though the record was mixed. Job functions, skills and training, functional integration, and contact all weighed in favor: bargaining unit help-desk employees escalate system issues to the administrators, whose maintenance work directly supports the systems that bargaining unit employees use daily. Those factors outweighed the differences — separate supervision below the department manager level, distinct pay structures (salaried and FLSA-exempt versus hourly workers covered by a DOL wage determination and a CBA), and no demonstrated interchange of duties. Having found a sufficient community of interest and an identifiable distinct voting group, the Regional Director directed an Armour-Globe self-determination election, scheduled for May 27, 2026, at the Yuma facility.
Significant Cases Cited
American Medical Response of Connecticut, 330 NLRB 317 (1999): Established that the four elements of the Section 2(12) professional employee definition are conjunctive and must all be met, with the burden on the party asserting professional status.
General Dynamics Corp., 213 NLRB 851 (1974): Held that the professional employee definition must be construed narrowly and that skilled technical work performed within prescribed systems does not qualify as professional work.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Set out the totality-of-circumstances community-of-interest standard for determining bargaining unit appropriateness.
Boeing Co., 337 NLRB 152 (2001): Confirmed that access to business, financial, or technical information does not establish confidential employee status absent a labor-relations nexus.
Waste Management of Puerto Rico, 339 NLRB 262 (2003): Articulated the two-part test for confidential employee status, requiring both a confidential relationship with a labor-relations policymaker and regular assistance on labor-relations matters.