06/04/2026: Employer Trumps Up Harassment Claims to Fire Union Organizer
You can't do that.
Southern Aluminum Finishing Company, Inc., JD-35-26, 25-CA-325283 (ALJ Decision)
An ALJ has found that Southern Aluminum Finishing Company violated the NLRA by suspending and then discharging a union organizer, and by maintaining overly broad confidentiality and nonsolicitation policies.
Kyle Phillips was hired as a fabricator at the company’s Indianapolis facility in March 2023. Two weeks into the job, he disclosed to his supervisor that he was a union organizer assigned by Sheet Metal Workers Local 20 to organize the facility’s employees. Within days, three co-workers who were unreceptive to his organizing efforts filed harassment complaints — assisted, the record showed, by the same supervisor Phillips had just notified. Phillips was suspended on April 7, just two weeks after disclosing his union role, and terminated on April 17.
The Discharge
ALJ Jeffrey P. Gardner applied the Wright Line burden-shifting framework, which requires the General Counsel to first show that protected activity was a motivating factor in the employer’s action, after which the burden shifts to the employer to prove it would have taken the same action regardless. The ALJ found the General Counsel’s prima facie case straightforward: Phillips’s organizing was openly known, and animus was evident from the timing, from the company’s own “Union Free Employment” policy, and from the supervisor’s immediate invocation of the nonsolicitation agreement upon learning of Phillips’s union role.
The ALJ then found that the company’s proffered justifications were pretextual. The termination letter cited a sexual harassment policy — one concerned with conduct based on protected characteristics like sex and race — and applied it to union organizing conversations. No discipline history existed, performance was never at issue, and the claimed concern about production slowdowns appeared nowhere in the investigation record or termination letter, surfacing only at trial. The ALJ also credited Phillips’s testimony over that of management, finding the acting general manager and HR manager not credible. Because the employer’s stated reasons were pretextual, it could not meet its Wright Line burden, and the ALJ found violations of Sections 8(a)(3) and (1).
Interrogation Allegation Dismissed
The ALJ dismissed the General Counsel’s allegation that Dalton’s employee interviews constituted unlawful interrogation. Applying the Bourne factors and the totality of the circumstances, the ALJ found that the interviews arose from actual employee complaints and that Dalton had a legitimate investigative need for the information — even though the investigation itself was ultimately a pretext for the discharge.
Work Rules
Under the Stericycle standard, which asks whether a reasonable employee could interpret a rule to restrict Section 7 activity, the ALJ found both the company’s confidentiality policy and its nonsolicitation agreement unlawfully overbroad. The confidentiality policy’s prohibition on sharing any information “not generally known to the public” could reasonably be read to bar employees from sharing wage information — a core Section 7 right. The nonsolicitation agreement’s restrictions on encouraging co-workers to seek other employment similarly swept in protected concerted activity.
The remedy includes reinstatement, full backpay with interest compounded daily, compensation for foreseeable pecuniary harms under Thryv, reimbursement of job-search expenses under King Soopers, and revision or rescission of the unlawful rules.
Significant Cases Cited
Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): Establishes the burden-shifting causation test for cases alleging discriminatory employer motivation, requiring the General Counsel to show protected activity was a motivating factor before the burden shifts to the employer to prove it would have acted the same way regardless.
Stericycle, Inc., 372 NLRB No. 113 (2023): Sets the current standard for evaluating work rules, holding that a rule is presumptively unlawful if a reasonable employee — interpreting it as a layperson — could read it to restrict Section 7 activity, even if the rule could also be read otherwise.
Rossmore House, 269 NLRB 1176 (1986): Establishes that employee interrogation violates the NLRA only when the words or context suggest coercion or interference, with the totality of circumstances assessed using the Bourne factors.
Thryv, Inc., 372 NLRB No. 22 (2022): Expands the make-whole remedy to include compensation for all direct or foreseeable pecuniary harms caused by an unlawful adverse employment action, beyond just lost wages.
Capstone Logistics LLC, 372 NLRB No. 124 (2023): Reaffirms that timing alone can constitute substantial circumstantial evidence of unlawful employer motivation in discrimination cases.