06/02/2026: Bargaining Notes Still Exempt from Information Requests
Default judgment denied where one party in interest filed an answer.
Stericycle, Inc., 374 NLRB No. 121, 04-CA-277775 (Published Board Decision)
In this supplemental decision, the Board resolved the one allegation it had severed from its 2023 ruling: whether Stericycle violated Section 8(a)(5) and (1) of the NLRA by refusing to produce bargaining notes in response to a union information request. Chairman Murphy and Member Mayer declined to reconsider Stericycle, Inc., 370 NLRB No. 89 (2021) (Stericycle I), which established that bargaining notes are generally exempt from disclosure, and dismissed the allegation. Member Prouty dissented.
The information request arose from a live dispute over what the parties had actually agreed to during contract negotiations. When Stericycle’s representative insisted his bargaining notes would prove the company’s interpretation of the attendance policy was correct, the union requested those notes. Stericycle refused, and the ALJ dismissed the allegation under Stericycle I‘s blanket exemption. The Board majority affirmed without further analysis.
Prouty argued that Stericycle I was wrongly decided and should be overruled. Under the Board’s standard information-request framework, anchored in NLRB v. Acme Industrial Co., an employer must produce relevant information unless it can demonstrate a legitimate and substantial confidentiality interest — and even then must seek an accommodation rather than refuse outright. Prouty contended that Berbiglia, Inc., the foundation of Stericycle I, addressed something categorically different: a broad subpoena seeking a union’s internal strategy documents. Notes recording what the parties actually said to each other across the bargaining table, he argued, do not implicate those confidentiality concerns. To the extent bargaining notes contain internal strategy or caucus discussions, those portions can be redacted. Critically, Prouty noted, Stericycle never even asserted a confidentiality claim here — making the blanket rule’s application particularly difficult to defend. He would have found a violation.
Significant Cases Cited
Stericycle, Inc., 370 NLRB No. 89 (2021): Prior Board decision establishing that bargaining notes are generally exempt from disclosure under the NLRA — the rule the majority upheld and the dissent sought to overturn.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Supreme Court decision holding that furnishing relevant information upon request is a core component of the Section 8(a)(5) bargaining obligation.
Berbiglia, Inc., 233 NLRB 1476 (1977): Board decision quashing a broad subpoena for union internal records on the ground that parties must be able to formulate bargaining positions without fear of exposure — the precedent underlying Stericycle I‘s bargaining-notes rule.
Pennsylvania Power Co., 301 NLRB 1104 (1991): Established the balancing framework for confidentiality claims, requiring the party asserting confidentiality to demonstrate a legitimate and substantial interest and to seek an accommodation before withholding requested information.
Patrick Cudahy, Inc., 288 NLRB 968 (1988): Recognized that attorney-client privilege claims within bargaining notes can coexist with the general duty to provide relevant information, supporting the dissent’s argument that targeted redaction is preferable to a blanket exemption.
Aqua Dental, 374 NLRB No. 122, 16-CA-305753 (Published Board Decision)
The Board affirmed an ALJ’s finding that a Pearland, Texas dental practice violated Section 8(a)(1) of the NLRA by disciplining and discharging employee Sandra Estrada in October 2022 for engaging in protected concerted activity, ordering reinstatement and full make-whole relief.
The Board’s substantive analysis appears almost entirely in its opening footnotes. The ALJ had found two bases for protected concerted activity: an anonymous email sent to the employer on October 10, 2022 raising workplace concerns, and Estrada’s discussions with coworkers about bonuses on October 20, 2022. The Board narrowed its holding to the first basis only, relying on the ALJ’s credibility finding that a coworker had discussed the workplace concerns with Estrada before the email was sent. It declined to reach the bonus-discussion issue.
The three members diverged on the animus analysis. Chairman Murphy would limit the animus finding to the employer’s shifting rationales for termination. Member Prouty, joined in the result, would have adopted all of the ALJ’s animus findings and noted that the direct evidence of retaliatory intent may render Wright Line analysis unnecessary altogether — citing Vesta VFO, LLC for the proposition that explicit retaliation requires no further motive inquiry. He nonetheless found the violation established under Wright Line as well.
On remedy, the Board applied Thryv, Inc.‘s expanded make-whole framework. Chairman Murphy and Member Mayer, consistent with recent decisions in Performance Plumbing, LLC and Lodi Volunteer Rescue Squad, Inc., expressed openness to reconsidering Thryv but agreed to apply it in the absence of a majority to overrule it. The Board rejected the General Counsel’s requests for enhanced remedies — including a notice reading, mandatory manager training, and a written apology — finding traditional remedies sufficient. Member Prouty dissented on the notice reading, arguing the circumstances made it particularly appropriate.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing mixed-motive discharge cases under the NLRA.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s make-whole remedy to cover direct and foreseeable pecuniary harms beyond traditional backpay.
Vesta VFO, LLC, 373 NLRB No. 10 (2024): Held that where an employer acts explicitly to retaliate against protected activity, further motive analysis under Wright Line is unnecessary.
Standard Dry Wall Products, 91 NLRB 544 (1950): Established the Board’s policy of deferring to ALJ credibility determinations unless the clear weight of the evidence compels reversal.
CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151 (2022): Addressed the circumstances under which notice readings are an appropriate remedy, cited by Member Prouty in support of granting that relief here.
Infusion Management Group D/B/a the Signature Room at the 95th and the Signature Lounge at the 96th, 374 NLRB No. 125, 13-CA-328071 (Published Board Decision)
The Board denied the General Counsel’s motion for default judgment against Infusion Management Group, the shuttered operator of The Signature Room at the 95th and The Signature Lounge at the 96th in Chicago. The underlying case arose from a charge by UNITE HERE Local 1 alleging that Infusion violated Section 8(a)(5) and (1) of the NLRA by closing and laying off unit employees without affording the union an opportunity to bargain over the effects of that decision.
The General Counsel moved for default judgment after Infusion—which the Illinois Secretary of State dissolved in January 2025—failed to file an answer to the amended consolidated complaint and compliance specification. Richard Roman, however, a named party in interest, did file an answer. Although Roman denied ownership of Infusion and contested both jurisdiction and the merits, the General Counsel did not challenge the sufficiency of his answer.
The Board’s analysis turned on the consequences of naming Roman as a party in interest. Any Board order issued against Infusion would run against the company’s officers, agents, and assigns—a category that includes Roman. Because Roman could be required to take affirmative steps to effectuate such an order, and could face contempt exposure if he refused, entering default judgment without a hearing would subject him to legal obligations without due process. The Board drew an analogy to its practice of denying default judgment against a non-answering respondent when an alleged single employer or alter ego has filed a timely answer—reasoning that where one party’s liability is derivative of another’s, a filed answer by the party whose interests are at stake protects both. While the Board acknowledged that Roman’s potential exposure is more limited than that of a true single employer or alter ego, it found the due process rationale equally applicable.
The Board remanded the case to Region 13 for further proceedings.
Significant Cases Cited
Chef Nathan Sez Eat Here, Inc., 201 NLRB 343 (1973): Established that a Board order running against a corporation’s officers, agents, and assigns can expose those individuals to contempt liability if they fail to satisfy a court-enforced compliance obligation.
Midwestern Personnel Services, 331 NLRB 348 (2000): Held that naming a party as a party in interest confers due process rights of notice, an opportunity to be heard, and the right to present evidence under the Board’s Rules and Regulations.
Metro Demolition Co., 348 NLRB 272 (2006): Declined to enter default judgment against a non-answering respondent where its liability was derivative and stemmed from its alleged status as a single employer with another respondent that had filed a timely answer.
D2 Abatement, Inc., 363 NLRB No. 153 (2016): Found that an answer by an alleged alter ego precluded summary judgment against a non-answering party whose liability flowed from its alter ego status.
St. Marys Foundry Co., 303 NLRB 1032 (1991): Permitted a party in interest to participate fully in a hearing even though the respondent had failed to appear.