07/18/2025: Retaliatory Discharge, Refusal to Reinstate, Illegal Employer Rule

Also an employer prematurely withdrew recognition of a union.

Langeloth Metallurgical Company, LLC, JD-58-25, 06-CA-290184 (ALJ Decision)

This case involved Langeloth Metallurgical Company (LMC) and its treatment of former striking workers. LMC employees represented by UAW Local 1311 engaged in an economic strike from September 2019 to August 2021. During the strike, LMC hired permanent replacement workers and in April 2020 lawfully withdrew recognition from the union.

When the strike ended on August 16, 2021, the union made an unconditional offer to return to work on behalf of all striking employees. Rather than recalling former strikers to fill vacancies, LMC brought in temporary workers from Compliance Staffing Agency/Jen-Mar Services (JMS) beginning in September 2021. LMC eventually recalled some strikers in June 2022, but created a recall matrix that heavily weighted whether employees had made individual offers to return to work, despite the union's collective offer on their behalf.

The ALJ found that LMC violated the National Labor Relations Act by:

1. Failing to appropriately place former economic strikers on a preferential recall list

2. Implementing a discriminatory recall system

3. Failing and refusing to reinstate former strikers to existing vacancies

4. Failing to timely reinstate strikers to existing vacancies

The ALJ rejected LMC's claims that:

• The economic strike converted to an illegal strike after union recognition was withdrawn

• The union's unconditional offer to return was invalid because it no longer represented a majority of workers

• LMC had legitimate business justifications for using temporary workers

The ALJ determined that LMC's reasons for using temporary workers rather than recalling former strikers (cost savings, avoiding layoffs, operational flexibility) were not supported by evidence. The record showed that LMC continuously brought in temporary workers over three years, with an average of 10 JMS workers at the facility each month. The ALJ also found evidence of anti-union animus in LMC's recall process.

The ALJ ordered LMC to:

1. Rescind its discriminatory recall procedure

2. Offer reinstatement to former strikers

3. Make whole former strikers for lost earnings and other benefits

4. Pay compensation for adverse tax consequences of lump-sum backpay awards

Significant Cases Cited

• Laidlaw Corporation, 171 NLRB 1366 (1968): Established that economic strikers who unconditionally apply for reinstatement remain employees and are entitled to full reinstatement upon departure of replacements.

• Rose Printing Co., 304 NLRB 1076 (1991): Clarified that economic strikers are entitled to reinstatement to their former jobs or substantially equivalent positions when vacancies occur.

• Colonial Haven Nursing Home, 218 NLRB 1007 (1975): Held that employers must offer reinstatement to employees for whom positions are available after a union makes a collective offer to return to work.

• American Machinery Corporation, 174 NLRB 130 (1969): Determined that a union still has authority to speak on behalf of striking workers even after employer withdraws recognition.

• Alaska Pulp Corp. II, 326 NLRB 522 (1998): Found that a union's unconditional offer to return on behalf of all striking employees was valid despite the union's decertification.

Berg Drywall LLC d/b/a The Berg Group, JD(SF)-15-25, 16-CA-319280 (ALJ Decision)

In this NLRB case, Administrative Law Judge Brian D. Gee found that Berg Drywall LLC d/b/a The Berg Group violated Section 8(a)(1) of the National Labor Relations Act by unlawfully discharging employee Fernando Mendoza in retaliation for protected concerted activities.

The case involved events at Tesla's "Gigafactory Texas" in Austin, where Berg was hired as a contractor to build out part of the facility. Mendoza initially worked as a carpenter but was promoted to foreman after leading a successful work stoppage in late 2021 that resulted in the removal of two managers accused of mistreatment.

In December 2022, Mendoza suffered a workplace injury after raising safety concerns about an open trench. Following this incident, Mendoza and several coworkers sent an anonymous email to HR complaining about Superintendent David Cepeck and raising concerns about safety and favoritism. On January 4, 2023, Mendoza was discharged along with five other employees.

Applying the Wright Line framework, Judge Gee found that the General Counsel established a strong prima facie case. Mendoza engaged in protected concerted activity by collaborating with other employees to raise safety concerns and complain about management. Cepeck knew or believed Mendoza was behind these activities and admitted to discharging him for being "disruptive" by "trying to get them to go against me" and "riling up" employees about workplace matters including safety.

Berg failed to establish that it would have discharged Mendoza regardless of his protected activities. The judge found that Berg's stated reasons for the discharge—a forklift safety violation and supposedly lying about returning his ID badge—were pretextual. The inconsistent treatment between Mendoza and another employee (Quijvix) who also failed to return his badge but was later rehired further undermined Berg's defense.

The judge rejected Berg's argument that Mendoza was a statutory supervisor not subject to the Act's protections, finding insufficient evidence that Mendoza possessed any supervisory authority under Section 2(11). The judge also rejected Berg's constitutional challenges to the structure of the NLRB and its argument that the collective bargaining agreement precluded Board review.

As a remedy, the judge ordered Berg to offer Mendoza reinstatement, make him whole for lost earnings and benefits, and remove references to the unlawful discharge from his personnel file.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing cases involving employer motivation in adverse employment actions.

• Intertape Polymer Corp, 372 NLRB No. 133 (2023): Clarified that animus can be established through direct evidence or inferred from circumstantial evidence.

• CSC Holdings, LLC, 368 NLRB No. 106 (2019): Held that when an employer's stated reason is pretextual, it cannot meet its Wright Line rebuttal burden.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Set forth criteria for determining supervisory status under Section 2(11) of the Act.

• Commonwealth Flats Development Corporation, 373 NLRB No. 142 (2024): Rejected constitutional challenges to the structure of the NLRB as meritless.

Consumers Energy, JD-60-25, 07-CA-329132 (ALJ Decision)

This case concerns a last chance agreement between Consumers Energy Company and employee Jara Frei that contained language prohibiting both Frei and her union from contesting any future termination "in any manner or forum." Administrative Law Judge Ira Sandron found this language violated Section 8(a)(1) of the National Labor Relations Act.

The case originated when Local 107 of the Utility Workers Union of America filed charges against Consumers Energy. The disputed language appeared in a May 1, 2023 last chance agreement that settled a grievance filed by Frei, converting her March 28, 2023 discharge to an uncontested disciplinary layoff without backpay. On October 25, 2023, Frei was terminated, and pursuant to the last chance agreement, she was barred from contesting the termination through either the grievance procedure or any external forum.

Judge Sandron ruled that a last chance agreement requiring employees to waive rights to invoke the NLRB's processes for alleged unfair labor practices violates Section 8(a)(1). The judge found the language overly broad and unlawful because it constituted an employee waiver of the right to contest adverse actions before the NLRB or other agencies.

Applying the Board's Stericycle framework, the judge determined that the General Counsel had proven the challenged rule had a reasonable tendency to chill employees from exercising their Section 7 rights. The judge found that Consumers Energy failed to rebut this presumption by showing it couldn't advance its legitimate business interests with a more narrowly tailored rule.

Notably, the judge rejected the General Counsel's argument that Frei's October 25 termination warranted reinstatement and backpay remedies. While the last chance agreement contained unlawful language, there was no evidence that Frei was terminated for protected activity or that she was terminated solely because of the unlawful provision. The judge emphasized that Frei was not terminated for refusing to sign the unlawful agreement, and she had in fact been able to file an NLRB charge regarding her termination.

As a remedy, the judge ordered Consumers Energy to rescind or modify the unlawful language in the last chance agreement, specifically the phrase "and neither the Union nor the grievant shall contest such action in any manner or forum." Consumers Energy was also ordered to notify Frei in writing that this had been done and that the unlawful language would not be used against her.

The judge distinguished this case from Coca-Cola Bottling Company of Los Angeles, where the Board had found a grievance settlement lawful because it clearly only precluded the employee from contesting the specific suspension at issue, not future matters.

Significant Cases Cited

• McKesson Drug Co., 337 NLRB 935 (2002): Found that a last chance agreement requiring waiver of NLRB processes violated Section 8(a)(1).

• Stericycle, Inc., 372 NLRB No. 113 (2023): Established the framework for analyzing work rules that may chill Section 7 rights.

• Ishikawa Gasket America, Inc., 337 NLRB 175 (2001): Held that a separation agreement forcing an employee to prospectively waive Section 7 rights is overly broad.

• Retlaw Broadcasting Co., 310 NLRB 984 (1993): Ruled that future rights of employees may not be traded away in agreements.

• Coca-Cola Bottling Company of Los Angeles, 243 NLRB 501 (1979): Found a grievance settlement lawful when it clearly only precluded action on a specific past matter, not future issues.

The Pomptonian, Inc. D/B/a Pomptonian Food Service, JD-61-25, 22-CA-312629 (ALJ Decision)

This case involves a dispute between The Pomptonian Inc. (Pomptonian), a food service contractor for New Jersey school districts, and Service Employees International Union, Local 32BJ (the Union). Administrative Law Judge Michael A. Rosas found that Pomptonian violated the National Labor Relations Act by failing to comply with its collective bargaining agreement (CBA) with the Union in several ways.

Since 2014, Pomptonian has been the food services contractor for the Springfield School District, where the Union represented its employees. The parties had a CBA that was effective from September 2018 to August 2022, which automatically renewed annually unless terminated. The CBA contained provisions requiring Pomptonian to distribute Union membership applications and dues authorization forms to new employees, remit completed forms to the Union, provide monthly information about personnel changes, and allow Union access to meet with employees.

In 2022, Pomptonian failed to distribute membership forms to new employees and did not provide the Union with required monthly personnel information. As a result, many new employees did not join the Union or have dues deducted. By September 2022, only 10 of 19 bargaining unit employees were paying dues. This discrepancy led to employee dissatisfaction with the Union, which was expressed at an October 2022 meeting.

On January 31, 2023, Pomptonian withdrew recognition of the Union, claiming it had evidence that the Union no longer had majority support. Pomptonian relied on a petition purportedly signed by 18 of 19 employees indicating they no longer wanted Union representation. After withdrawing recognition, Pomptonian stopped deducting and remitting Union dues and denied the Union access to meet with employees.

Judge Rosas determined that Pomptonian's withdrawal of recognition was unlawful for two reasons. First, Pomptonian failed to establish that it had valid objective evidence that the Union had lost majority support, as it did not authenticate the employee signatures on the petition. Second, Pomptonian's unfair labor practices had tainted any employee disaffection from the Union, as its failure to comply with the CBA contributed directly to employee dissatisfaction.

The judge found that Pomptonian violated Section 8(a)(5) and (1) of the Act by:

1. Failing to distribute Union membership forms to new employees and provide personnel information to the Union

2. Withdrawing recognition from the Union without valid objective evidence

3. Ceasing dues deductions without notifying or bargaining with the Union

4. Denying the Union access to meet with employees

The judge ordered Pomptonian to cease these unfair labor practices, recognize and bargain with the Union, rescind its unilateral modifications to the CBA, and post an appropriate notice to employees.

Significant Cases Cited

• Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Established that an employer must prove by a preponderance of evidence that an incumbent union has actually lost majority support before withdrawing recognition.

• Master Slack Corp., 271 NLRB 78 (1978): Set forth a four-factor test for determining whether unfair labor practices tainted employee disaffection from a union.

• Bath Iron Works Corporation, 345 NLRB 499 (2005): Established the test for analyzing allegations that an employer modified a collective-bargaining agreement without consent.

• NLRB v. Katz, 369 U.S. 736 (1962): Held that an employer violates its duty to bargain by unilaterally changing terms and conditions of employment during negotiations.

• C & S Industries, Inc., 158 NLRB 454 (1966): Established that a party seeking to modify terms of an existing contract must obtain the other party's consent.

Vestas American Technology, Inc, 07-RC-359738 (Regional Election Decision)

Regional Director Elizabeth Kerwin found that a unit of Wind Turbine Technicians at Vestas-American Wind Technology's Bad Axe, Michigan facility was appropriate for collective bargaining, rejecting the employer's argument that Dispatchers and a Stock Keeper must be included.

The Utility Workers Union of America sought to represent approximately seven Wind Techs, while Vestas contended the smallest appropriate unit must include four additional employees for a wall-to-wall unit.

The Director denied Vestas's motions to disqualify the Hearing Officer and transfer the case, finding no evidence of bias or prejudice that impacted the employer's ability to present its case.

Applying the American Steel framework, the Director found the Wind Techs share an internal community of interest as they:

• Constitute a distinct department with specialized skills and training

• Work primarily at wind farm sites rather than in the facility

• Require certifications not needed by other employees

• Work in hazardous conditions at heights up to 125 meters

The Director found no overwhelming community of interest existed between Wind Techs and the excluded positions based on:

• Different supervisory structures (Dispatchers and Stock Keeper have dual reporting relationships)

• Distinct job duties (Wind Techs perform technical field work while others work inside)

• Limited functional integration and contact (Wind Techs spend most time offsite)

• Different schedules (Wind Techs work 50+ hours with on-call duties; others work 40 hours)

• No evidence of interchange between positions

The Director rejected Vestas's claim that the unit was "fractured," noting it followed the employer's own departmental lines, unlike the situations in Odwalla and Neiman Marcus.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2023): Established the framework for determining appropriate units when a union seeks to represent a portion of job classifications.

• Specialty Healthcare, 357 NLRB 934 (2011): Provided the standard for determining appropriate bargaining units when employers contend a larger unit is required.

• United Operations, Inc., 338 NLRB 123 (2002): Outlined the community of interest factors used to determine appropriate bargaining units.

• Odwalla, Inc., 357 NLRB 1608 (2011): Explained when a proposed unit might be considered "fractured" if it doesn't track employer-drawn lines.

• The Neiman Marcus Group, Inc., 361 NLRB 50 (2011): Addressed when a unit is inappropriate because its boundaries don't follow employer's operational lines.