05/27/2025: Successful Wright Line Affirmative Defense
Unusual Fifth Circuit case that took 12 years to process.
Allservice Plumbing v. NLRB, 23-60293 (Fifth Circuit)
The Fifth Circuit denied the NLRB's request to enforce a decade-old order against AllService Plumbing and granted the company's petition for review, establishing new limitations on NLRB enforcement authority.
Background
AllService, a small Louisiana plumbing company, faced NLRB charges in 2009 after a failed union organizing campaign. An ALJ found the company violated the NLRA through employee Joe Lungrin's anti-union activities and retaliatory layoffs, ordering reinstatement with backpay exceeding $100,000. The Board adopted this decision in 2013, but enforcement was delayed when NLRB v. Noel Canning invalidated Board members' appointments. After dismissing its 2014 enforcement petition, the Board let the case sit dormant for eight years before attempting enforcement again in 2022, citing "administrative oversight."
Majority Opinion
Circuit Judge Oldham denied NLRB enforcement on multiple grounds. The court emphasized that unlike other agencies, the NLRB lacks self-executing orders and must seek equitable relief from federal courts, granting judges significant discretion in enforcement decisions.
The majority rejected the Board's exhaustion argument, finding AllService's pro se response to the 2022 show cause order adequately preserved its objections. The court applied a liberal standard requiring only notice to the Board, not "lawyerly precision." The majority also found extraordinary circumstances excused any exhaustion failure, citing the Board's eight-year delay and AllService's intervening hardships from two floods that destroyed company records.
On the merits, the court found insufficient substantial evidence for the Board's conclusions. While Lungrin may have been an agent for work assignments, his union-related conduct fell outside that limited scope and could not be attributed to AllService. Regarding the layoffs, the majority criticized the Board for failing to adequately address contradictory evidence showing company officials lacked anti-union animus.
Dissenting Opinion
Judge Dennis characterized the majority's approach as creating "unprecedented obstacles" to NLRB enforcement. The dissent argued AllService failed to preserve objections through required written exceptions to the Board, citing established Fifth Circuit precedent. Judge Dennis distinguished this backpay case from bargaining order cases cited by the majority, invoking NLRB v. J.H. Rutter-Rex Manufacturing Co. to argue that wronged employees shouldn't bear consequences of Board delays.
The dissent accused the majority of improperly reweighing evidence and creating an unprecedented requirement that ALJs explicitly address every piece of contradictory evidence, warning this standard would frustrate Board enforcement capabilities.
Significant Cases Cited
NLRB v. Noel Canning, 573 U.S. 513 (2014): Supreme Court decision invalidating three NLRB members' appointments due to improper recess appointment procedures.
NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258 (1969): Supreme Court held that wronged employees should not bear consequences of Board delays in enforcement proceedings.
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): Established substantial evidence standard requiring courts to consider contradictory evidence when reviewing Board decisions.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Supreme Court clarified three-part test for determining supervisory status under the NLRA and burden of proof requirements.
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982): Supreme Court decision establishing jurisdictional nature of Section 10(e) exhaustion requirements.
Felton Institute, JD(SF)-12-25, 32-CA-298516 (ALJ Decision)
This NLRB case involved allegations that the Felton Institute, a California non-profit providing mental health services, violated federal labor law by interfering with union organizing and retaliating against union supporter Katriel Spiker.
Background
Spiker worked as an early interventionist from July 2019 to May 2022. The Service Employees International Union began organizing unrepresented employees at Felton's Bryant Street facility, and Spiker became active in early 2022, participating in tabling, wearing union shirts, and sending supportive emails on company-wide chains.
Performance Issues and Termination
Throughout her employment, Spiker faced recurring complaints about interpersonal behavior, including eye rolling, exclusionary conduct, and passive-aggressive treatment of colleagues. The situation escalated when coworker Hannah Brown reported feeling targeted and experiencing microaggressions from Spiker. On March 25, 2022, Spiker had a heated argument with colleague Darcy Palmer about Spiker's treatment of Brown.
Following an HR investigation that included witness interviews documenting a pattern of problematic behavior, Spiker was terminated on May 12, 2022, for violating the company's anti-bullying policy.
Legal Analysis
Under Section 8(a)(1), the ALJ found Felton violated the Act when supervisor Cevallos instructed Spiker not to discuss the union "in the perimeter of the office." Even though intended as a helpful warning, this reasonably conveyed management disapproval of union organizing. However, the ALJ dismissed allegations about restricting union discussions in meeting notes, finding this was part of a content-neutral policy.
Under Section 8(a)(3) and the Wright Line framework, the ALJ found the General Counsel established a prima facie case of discriminatory termination based on Spiker's union activities, management knowledge, and demonstrated anti-union animus. However, the ALJ concluded Felton would have terminated Spiker regardless of her union activities, finding the employer's concerns about her treatment of Brown and persistent interpersonal problems were legitimate and well-documented.
Remedy
The ALJ ordered Felton to cease instructing employees not to discuss unions in the office and to post remedial notices, but dismissed the wrongful termination claim.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established framework for analyzing mixed-motive discrimination cases requiring prima facie showing followed by employer's burden to prove it would have acted the same absent protected activity.
Mediplex of Danbury, 314 NLRB 470 (1994): Basic test for Section 8(a)(1) violations is whether employer conduct reasonably tended to restrain, coerce, or interfere with employees' Section 7 rights.
Jensen Enterprises, 339 NLRB 877 (2003): Employers may restrict union discussions during work time only if restrictions apply equally to other non-work subjects.
Smithers Tire, 308 NLRB 72 (1992): Test for unlawful threats is whether statement can reasonably be interpreted as threatening, regardless of speaker's intent.
Amentum Servs., Inc., 374 NLRB No. 16 (2024): Even well-intentioned warnings can be coercive if they convey management disapproval of organizing.
Greenhouse Group, LLC D/B/a Curaleaf, JD-46-25, 13-CA-304261 (ALJ Decision)
This NLRB decision involves unfair labor practice charges against Curaleaf cannabis dispensaries in Illinois for their handling of 2022 layoffs at unionized facilities.
Facts
In November 2022, facing financial pressures, Curaleaf notified the United Food & Commercial Workers Local 881 that layoffs were imminent at three facilities. On November 18, the company informed the union that layoffs would begin that day, projecting cuts at Skokie, Worth, and Mokena locations. The union requested seniority-based layoffs and six weeks severance; the company offered four weeks and said layoffs would follow inverse seniority within job classifications to maintain staffing ratios.
On November 29-30, Curaleaf proceeded with layoffs affecting nine employees total. Six at Skokie and three at Mokena were offered either transfers to other (mostly non-union) facilities or severance packages. Five accepted transfers; four took severance.
Violations Found
The ALJ found three categories of violations:
Failure to Bargain (Section 8(a)(5)): Curaleaf presented layoffs as a fait accompli on November 18, giving the union no meaningful opportunity to bargain over the decision. Though some discussion occurred about effects (severance, recall rights), the company implemented layoffs before reaching agreement or impasse.
Direct Dealing (Section 8(a)(5)): Management bypassed the union by communicating directly with employees about transfers and severance terms.
Unlawful Severance Agreements (Section 8(a)(1)): The agreements contained overbroad confidentiality clauses that restricted employees from discussing severance terms with their union or engaging in other protected activities, violating Section 7 rights.
Remedy
The ALJ ordered reinstatement and back pay for affected employees, rescission of unlawful severance agreements, and posting of remedial notices.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): Established framework for analyzing whether severance agreements unlawfully restrict Section 7 rights.
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Confirmed employers must bargain to impasse before making unilateral changes to terms and conditions of employment.
Airgas USA, LLC, 373 NLRB No. 102 (2024): Demonstrated how presenting layoff decisions as fait accompli violates bargaining obligations.
Permanente Medical Group, 332 NLRB 1143 (2000): Established three-element test for unlawful direct dealing violations.