07/01/2026: Employer Knowledge of Concertedness. Non-Solicitation Provisions.
Some interesting advice memos today.
Sutherland Global Services, 05-CA-313962 (Advice Memo)
This is a heavily redacted advice or regional memo analyzing two unfair labor practice charges, with names, dates, and other identifying information withheld under FOIA privacy exemptions. The substantive analysis addresses whether the employer violated Section 8(a)(1) in two respects: changing its overtime policy and terminating an employee for recording a workplace meeting.
On the overtime policy change, the Region concluded there was insufficient evidence of an unlawful motive. The charging party had discussed concerns about unpaid incentive pay with at least one coworker, and the subsequent escalation to management was arguably protected as the logical outgrowth of concerted activity under Maine Coast Regional Health Facilities. However, the charging party's communications with higher-level officials made no mention of coworkers, leaving only a supervisor's offhand reference to "you guys" as potential evidence that the employer knew the complaint was group-related. The Region found that phrase alone insufficient to establish employer knowledge of concerted activity, particularly because the same language appeared in an earlier email predating any group activity. The overtime policy change also applied to the entire team, the charging party was offered overtime at least once, and the only evidence of animus was timing. The Region concluded that evidence would be too thin to prove retaliation.
On the termination, the employer discharged the charging party for recording a meeting with a supervisor in violation of its Clean Desk Policy, which required employees to store personal items including cell phones outside their work area to protect client confidentiality. The Region found insufficient evidence that the recording itself was protected concerted activity, and declined to issue a complaint.
Significant Cases Cited
Maine Coast Regional Health Facilities d/b/a Maine Coast Memorial Hospital, 369 NLRB No. 51 (2020): Held that an individual employee's complaint can qualify as protected concerted activity when it is the logical outgrowth of prior group activity.
BAYADA Home Health Care, 27-CA-341402 (Advice Memo)
The NLRB's Division of Advice concluded that two provisions in BAYADA Home Health Care's separation agreement are lawful, directing Region 27 to dismiss the unfair labor practice allegations.
The first provision prohibited laid-off employees from soliciting BAYADA's current or former employees, clients, or business partners to leave the company or affiliate with competitors. The advice memo found this nonsolicitation clause not facially overbroad under the standard set in McLaren Macomb, which asks whether a provision reasonably tends to interfere with employees' Section 7 rights. The key distinction here was that the agreement applied only after the employment relationship had ended. Because the Board has historically protected conduct like employees helping one another find better jobs or improve job security only within the context of an ongoing employment relationship, a post-employment restriction on that same conduct does not infringe on protected activity. The act of actually leaving employment is itself unprotected; only a conditional threat to resign can be protected.
The second provision required former employees to cooperate with BAYADA in legal, regulatory, or investigative matters after separation, including providing information and attending meetings. The memo found this clause similarly lawful. While employees generally have a Section 7 right to refuse employer questioning that unduly pries into protected conduct, and a right to decline to submit to questioning in preparation for unfair labor practice proceedings, the advice memo noted that no Board precedent extends these protections to former employees generally. Additionally, the clause's reference to "providing information" and "attending meetings" indicated it was aimed at pre-trial cooperation rather than compelling testimony in formal proceedings.
Significant Cases Cited
McLaren Macomb, 372 NLRB No. 58 (2023): Held that an employer's proffer of a separation agreement provision is unlawful where its language has a reasonable tendency to interfere with, restrain, or coerce employees' exercise of Section 7 rights.
Crescent Wharf & Warehouse Co., 104 NLRB 860 (1953): Distinguished the unprotected act of resigning from employment from a potentially protected conditional threat to resign if the employer does not meet certain conditions.
Technicolor Services, 276 NLRB 383 (1985): Held that a union steward's efforts to have coworkers apply at other companies was protected Section 7 activity because it furthered employees' job security interests rather than aiming to harm the employer.
Johnnie's Poultry Co., 146 NLRB 770 (1964): Established standards governing an employer's right to question employees in preparation for unfair labor practice proceedings.
Retail Store Employees Union, Local 876, 219 NLRB 1188 (1975): Held that the NLRA protects an employee who, without malice, refuses to voluntarily testify against a fellow employee in an unfair labor practice proceeding.
Trader Joe's East Inc., 13-RC-339478 (Unpublished Board Decision)
The Board denied Trader Joe's East Inc.'s request for review of a Regional Director's decision upholding a union election victory by Trader Joe's United at a Chicago-area store, finding no substantial issues warranting review.
The employer's objections centered on the conduct of Nigel Brown, an employee and organizing-committee member. The Board assumed for purposes of the decision that Brown was a union agent, but concluded his conduct was not objectionable under the standard applicable to party agents. Brown allegedly warned employees that the employer would fire LGBTQ+ employees if the union lost, but the Board found this unactionable because any threat of job loss was not within the union's power to carry out. Brown's disruptive outbursts, which occurred on a single day about ten days before the election, were similarly dismissed: they might have embarrassed pro-union employees but could not reasonably have coerced anyone into voting for the union.
The Board also upheld the Hearing Officer's partial quashing of a subpoena directed at documentary filmmaker Nadia Shaarawi, who the employer speculated had filmed employees waiting to vote. The Board agreed with the Regional Director that filming by a non-party is not objectionable, and further found no evidence that Shaarawi was a union agent or that any filming occurred without consent. The employer's attempt to review her footage was characterized as a fishing expedition.
Member Mayer concurred in the outcome but wrote separately to criticize the Regional Director's handling of a separate subpoena directed at Brown himself. Mayer argued that subpoenaing communications between Brown and the union was plainly relevant to the agency question, and that Section 7 concerns should have been addressed through in camera review and redaction rather than outright revocation, as the D.C. Circuit established in Ozark Automotive Distributors, Inc. v. NLRB. Mayer found it fundamentally unfair to deny the employer access to potentially probative evidence and then rule against it for failing to prove agency. However, Mayer concluded the error was harmless because Brown's conduct would not have warranted setting aside the election even if he were a union agent, and agreed that the ballot of Brandi Hewitt should be opened and counted.
Significant Cases Cited
Rio de Oro Uranium Mines, Inc., 120 NLRB 91 (1958): Overruled election objections based on union agents' threats of job loss where the threats were not within the union's power to carry out.
Mediplex of Connecticut, Inc., 319 NLRB 281 (1995): Found that a brief scuffle between union agents and managers did not merit setting aside an election.
Millard Processing Services, Inc., 304 NLRB 770 (1991): Found that filming by a non-party reporter near an election site was not objectionable conduct.
Firestone Textiles Co., 244 NLRB 168 (1979): Found that derogatory and mildly threatening remarks shouted at employees by picketers did not warrant setting aside an election.
Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015): Established that Section 7 concerns over subpoenaed materials should be addressed through in camera review and redaction, not preemptive revocation.
Mass General Brigham Incorporated, 01-RC-345183 (Unpublished Board Decision)
The Board denied Mass General Brigham's request for review of the Regional Director's decision directing an election in a multi-facility unit petitioned for by the Massachusetts Nurses Association, finding no substantial issues warranting review.
The central question was whether the petitioned-for unit, which spans multiple facilities, constitutes an appropriate bargaining unit under the community of interest standard. The Board agreed with the Regional Director that it does. The employees share overlapping education and training, similar skills, and hourly pay with only slight wage variations. They work on distinct but interconnected parts of the employer's occupational health and workers' compensation system and nearly all participate in an on-call rotation providing systemwide support across all facilities. Employees may fill in as clinical nurses at other locations, and some schedule clients' appointments in other employees' clinics. The group also shares centralized labor-relations and personnel policies, a common second-level supervisor, and corresponds to the employer's own administrative grouping within its Workplace Health department.
The Board acknowledged countervailing factors: limited interchange among employees, significant geographic distance between facilities, and a split in job duties between those performing direct clinical care and those doing administrative work. It found these differences outweighed by the commonalities. Member Mayer added that the geographic distance argument was undercut by the fact that the employer's own proposed alternative units would involve similar or greater distances between facilities.
Significant Cases Cited
Exemplar, Inc., 363 NLRB 1500 (2016): Addresses the community of interest standard for determining appropriate bargaining units, including the relevance of administrative or supervisory groupings.
Stormont-Vail Healthcare, Inc., 340 NLRB 1205 (2003): Held that outlying clinics falling under the same administrative or supervisory grouping as other facilities should be included in the bargaining unit.
Capital Coors Co., 309 NLRB 322 (1992): Identifies factors such as overlapping skills, training, and wage rates as favoring a finding of community of interest.
Presbyterian/St. Luke's Medical Center, 289 NLRB 249 (1988): Addresses cross-facility scheduling and fill-in work as factors supporting inclusion of employees in a common unit.
Village of Streamwood, 13-WH-384602 (Unpublished Board Decision)
The NLRB certified Metropolitan Alliance of Police, Streamwood Civilians, Chapter #567 as a bona fide representative under Section 7(b) of the Fair Labor Standards Act, covering non-sworn civilian employees of the Streamwood Police Department in Illinois, including community service officers, parking and code enforcement aides, and police services specialists.
The certification was triggered by the union's April 2026 petition to Region 13. The FLSA's Section 7(b) allows employers and certified unions to agree to alternative overtime arrangements, and bona fide certification by the NLRB is a prerequisite. The Regional Director investigated, confirmed the union already holds recognized exclusive bargaining status under a collective bargaining agreement running through December 2027, and recommended certification. No party objected.
A footnote in the order flags an important limitation: this FLSA certification does not independently establish the union's right to recognition under the NLRA, which operates under a separate statutory framework.
Significant Cases Cited
County of Alameda, 322 NLRB 614 (1996): Held that an NLRB certification of a representative as bona fide under Section 7(b) of the FLSA does not establish that organization's right to recognition as an exclusive bargaining representative under the NLRA.