06/12/2026: Successor Bargaining, Retaliation, Supervisory Status
Some classic topics today.
Parking Systems, Inc., 374 NLRB No. 123, 29-CA-331253 (Published Board Decision)
A Long Island valet parking company that won a contract to take over operations at Stony Brook University Hospital violated the NLRA by refusing to hire the predecessor’s unionized workforce — and then compounded that violation by unilaterally setting different employment terms, the Board held in a unanimous decision affirming ALJ Benjamin Green’s findings.
When Parking Systems Plus took over from Classic Valet Parking in December 2023, it declined to hire the approximately 35 attendants represented by Local 1102, RWDSU/UFCW. An account executive told one Classic employee during a job interview that the company “does not work with the union or unions” — a statement the ALJ credited over conflicting management testimony, citing internal emails that contradicted the company’s claimed policy against hiring predecessor employees. The Board agreed that this refusal violated Section 8(a)(3) of the NLRA under the Wright Line burden-shifting framework.
Because the refusal to hire was discriminatory, the Board applied a key legal presumption: it treated the successor’s workforce as if it would have been composed of Classic’s employees, triggering a bargaining obligation under NLRB v. Burns International Security Services. The company’s argument that it wasn’t a successor because it won a competitive bid rather than purchasing the predecessor’s assets was rejected — the Board reaffirmed that successorship doesn’t require privity of contract.
Having found an unlawful refusal to hire, the Board also held that Parking Systems forfeited its normal right to set initial employment terms, citing Love’s Barbeque Restaurant No. 62. By implementing wages, paid time off, and other terms that differed from the Classic collective bargaining agreement, the company committed an additional Section 8(a)(5) violation. The company was also ordered to recognize and bargain with the union.
The Board rejected the company’s argument that the historical single-facility bargaining unit was no longer appropriate after the transition, noting that the company failed to meet its “heavy evidentiary burden” under Banknote Corp. of America — and that it could not point to its own unlawful unilateral changes to undermine the unit’s appropriateness.
One remedial nuance divided the panel. The ALJ found that the job offer to one Classic employee, Francis Gil Reyes, was invalid because it was effectively conditioned on her abandoning union representation — entitling her to backpay and instatement. Member Mayer dissented on that point, arguing that because the ALJ dismissed the separate Section 8(a)(1) allegation about conditioning employment on abandoning the union, those remarks couldn’t support a backpay remedy for a worker who received and declined a job offer.
Significant Cases Cited
NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972): The foundational successorship case establishing that a new employer may be obligated to recognize and bargain with the union representing its predecessor’s employees when there is substantial continuity of the business operation and workforce.
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): Supreme Court decision elaborating the “substantial continuity” standard for successorship, including how to assess continuity of the workforce and business enterprise.
Wright Line, 251 NLRB 1083 (1979): Established the burden-shifting framework applied in discriminatory-motivation cases under Section 8(a)(3), requiring the General Counsel to first make a prima facie showing of antiunion motive before the burden shifts to the employer.
Love’s Barbeque Restaurant No. 62, 245 NLRB 78 (1979): Held that a successor employer who unlawfully refuses to hire predecessor employees to evade a bargaining obligation forfeits its normal right under Burns to set initial terms and conditions of employment.
Banknote Corp. of America, 315 NLRB 1041 (1994): Established that an alleged successor challenging the appropriateness of a historical bargaining unit bears a heavy evidentiary burden of showing the unit has become repugnant to the NLRA’s policies.
M.J. Melo Painting Ltd., 374 NLRB No. 131, 29-CA-278541 (Published Board Decision)
A Brooklyn painting company violated the NLRA during a 2021 organizing campaign by IBEW Local 1430, the Board held, affirming an ALJ’s findings and ordering reinstatement and make-whole relief for nine workers.
The violations were largely uncontested on appeal. Supervisor Jose Serrano threatened employees with reduced hours and termination if they supported the union, interrogated them about their votes, promised better work assignments to those who voted no, and told workers the union would never succeed. The company followed through, cutting hours for eight employees and ceasing work assignments entirely for five — Suarez, Cedeno, Chica, Martinez, and Astoquillca — whom the Board found were effectively discharged even without formal notice, judging the terminations from the employees’ reasonable perspective.
The Board’s primary focus on appeal was whether four other workers — Hanco, Nunez, Yundes Arcila, and Yundes Londono — were constructively discharged through hour reductions alone. Under Crystal Princeton Refining Co., the General Counsel must show the conditions were intended to force resignations and were imposed because of union activity. Because the company failed to except to the ALJ’s Wright Line finding that the reductions were retaliatory, the second element was conceded. The only question was whether the cuts were severe enough. The Board said yes: reductions ranging from roughly 22 to 60 percent, sustained over weeks or months with no end in sight, satisfied the standard. Citing Alpine Log Homes, the Board noted that even smaller reductions — as little as 17 percent in prior cases — had been held sufficient.
The Board also declined to consider a non-Board settlement agreement the company attached to its exceptions brief but never entered into evidence, rejecting the argument that it mooted the pending ballot challenges and required dismissal of the union’s petition.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for discriminatory motivation cases under the NLRA.
Crystal Princeton Refining Co., 222 NLRB 1068 (1976): Set out the two-element test for constructive discharge under the NLRA.
Alpine Log Homes, 335 NLRB 885 (2001): Held that a significant, indefinite income reduction causing an employee to seek other work establishes constructive discharge where union activity was a motive.
North Carolina Prisoner Legal Services, 351 NLRB 464 (2007): Clarified that the foreseeability of an employee’s resignation satisfies the intent element of constructive discharge.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded Board remedies to include compensation for direct or foreseeable pecuniary harms beyond lost wages
Alaska Power and Telephone Company, 19-UC-384477 (Regional Election Decision)
IBEW Local 1547 won a unit clarification petition adding two positions — Power Operations Superintendent and Power Plant Superintendent — to its newly certified bargaining unit at Alaska Power and Telephone Company, which provides utility services across remote Alaska. Region 19 Regional Director Ronald Hooks issued the decision June 10, finding neither position meets the Section 2(11) definition of “supervisor” under the NLRA.
The employer argued both superintendents exercised supervisory authority over their respective crews. Hooks disagreed across every statutory indicia, relying heavily on the framework established in Oakwood Healthcare.
For Power Operations Superintendent Clair Nelson, the analysis was straightforward. Nelson let crew members self-assign tasks, followed a rote prioritization scheme for work orders, had never issued discipline and didn’t believe he had authority to do so — a view shared by his predecessor in the role. His involvement in hiring was minimal, his leave approvals were perfunctory, and his performance evaluations fed into a multi-factor bonus algorithm he didn’t control. Because the employer could not show Nelson exercised independent judgment in connection with any enumerated supervisory function, Hooks found no supervisory status.
The Power Plant Superintendent analysis was somewhat more involved. Superintendent Lloyd Crookes had only been in the role six months and had never actually hired, suspended, discharged, or disciplined anyone — though he testified he believed he had some of those powers. Hooks gave that testimony little weight. Where a comparable superintendent in another region had issued writeups, Hooks noted the record didn’t show whether upper management conducted an independent investigation before acting on them, and the lack of evidence was construed against the employer. On assignment, the two-person crew’s distinct skill sets — one mechanical, one electrical — meant any task routing was obvious rather than a product of independent judgment. On discipline and discharge, the same logic applied: authority exercised only for egregious or obvious conduct doesn’t constitute independent supervisory judgment under Oakwood Healthcare. Crookes’s overtime and leave approvals were routinely reviewed and overridden by a payroll specialist applying established policy, further undercutting any claim of independent authority.
Throughout, Hooks applied the rule from Avante at Wilson that when testimony conflicts on supervisory authority, the account of the person actually occupying the role at the time of the hearing is credited — a principle that consistently favored the union’s position here.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the framework for analyzing “assign” and “responsibly direct” under Section 2(11), requiring that independent judgment rise above the routine or clerical and that accountability for the work of others be demonstrated.
N.L.R.B. v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Supreme Court decision affirming that possession of any single enumerated supervisory power, exercised with independent judgment in the employer’s interest, is sufficient to establish supervisory status under the NLRA.
Avante at Wilson, Inc., 348 NLRB 1056 (2006): Held that the Board should not construe the supervisory definition too broadly, and that conflicting testimony on supervisory authority is resolved by crediting the person currently occupying the disputed role.
Croft Metals, 348 NLRB 717 (2006): Clarified that the authority to assign work must be independent, involve genuine judgment, and rise above routine decision-making to support a finding of supervisory status.
Children’s Farm Home, 324 NLRB 61 (1997): Held that effective recommendation of supervisory action requires that superiors act without conducting their own independent investigation, not merely that they follow the recommendation.