07/23/2025: ALJ Recommends Cemex Bargaining Order
DC Circuit rejects Starbucks effort to have the agency declared unconstitutional.
Ariana Cortes v. NLRB, 24-5152, (DC Circuit)
The D.C. Circuit Court of Appeals affirmed the dismissal of a constitutional challenge to NLRB members' tenure protections for lack of Article III jurisdiction. Plaintiffs Ariana Cortes and Logan Karam, Starbucks baristas whose decertification petitions were dismissed by the NLRB, sought only a declaration that the Board members' removal protections violated Article II. During the appeal, the NLRB changed its position and agreed with the plaintiffs that these protections were unconstitutional.
The court held that no case or controversy existed since both parties now sought the same outcome. Without adverse legal interests or any "real-world consequences" that would flow from a judgment, the court lacked jurisdiction. The court explained that Article III requires more than a legal debate—it requires a judgment that would adversely affect one party's concrete interests while benefiting the other's. Since a declaratory judgment would have "no real meaning for the parties" given their agreement on the constitutional question, the court affirmed the district court's dismissal.
Significant Cases Cited
Lewis v. Continental Bank Corp., 494 U.S. 472 (1990): Established that Article III's case-or-controversy requirement continues through all stages of federal judicial proceedings.
United States v. Windsor, 570 U.S. 744 (2013): Held that parties can remain adverse despite agreement on constitutionality when a judgment would cause "real and immediate economic injury."
Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020): Found that constitutional adversity remains when court ruling would have "real meaning" for parties despite agreement on unconstitutionality.
California v. Texas, 593 U.S. 659 (2021): Clarified that the Declaratory Judgment Act alone does not provide court jurisdiction without satisfying Article III requirements.
Collins v. Yellen, 594 U.S. 220 (2021): Referenced regarding whether plaintiffs must establish "compensable harm" to be eligible for relief in removal-protection constitutional challenges.
Sportsman's Warehouse, Inc., JD(SF)-16-25, 28-CA-308079 (ALJ Decision)
This decision concerns unfair labor practice charges filed against Sportsman's Warehouse, Inc. related to a union organizing campaign at its Prescott, Arizona store. The United Food & Commercial Workers International Union, Local 99 sought to represent approximately 24 employees at this location.
In late 2022, employee Peter Scott Fuller initiated contact with the union and gathered authorization cards from 67% of eligible employees. The union filed a representation petition on October 24, 2022. An election was held on December 2, 2022, which the union lost by a vote of 18 to 5.
The ALJ found that Sportsman's engaged in numerous unfair labor practices before and after the election. Before the election, management officials made multiple threats that the store would close if employees unionized. Department managers, including Backley and Bruce, told employees the store would "shutter" if the union won. Clothing manager Cardoza interrogated an employee about how he would vote, told another employee the store might close due to unionization, and made other coercive statements.
District manager Hendrickson unlawfully solicited grievances when he asked employees about improvements needed at the store shortly after the petition was filed, implying he would remedy them. Senior Vice President Miller held mandatory captive audience meetings where he made statements about unionization, including implied promises regarding pay increases and threats that selecting the union would be futile.
The ALJ also found that Sportsman's unlawfully discharged Fuller on December 28, 2022, following an incident with another employee, Greg Phillips. The ALJ determined that Fuller's termination was discriminatory and motivated by his union activities. The decision highlighted inconsistencies in management testimony about who made the termination decision and the disproportionate discipline between Fuller and Phillips, who only received a final written warning despite his role in the incident.
The ALJ rejected the allegation that Sportsman's unlawfully reduced employee Gina Gonzales's work hours, finding that the reduction was consistent with company-wide cuts and Gonzales's limited availability and time-off requests.
Applying the Board's recent decision in Cemex Construction Materials Pacific, the ALJ determined that Sportsman's violated Section 8(a)(5) by refusing to recognize and bargain with the union, which had obtained authorization cards from a majority of employees. The ALJ ordered a remedial bargaining order, finding that Sportsman's unfair labor practices were severe enough to prevent a fair rerun election.
The remedial order requires Sportsman's to cease and desist from the unlawful conduct, reinstate Fuller with backpay, and recognize and bargain with the union as the exclusive representative of the unit employees. The bargaining obligation was set to commence on October 26, 2022, when Sportsman's had initiated its unfair labor practice campaign.
Significant Cases Cited
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established that an employer violates Section 8(a)(5) by refusing to recognize a union with majority support unless it promptly files an RM petition.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Authorized bargaining orders where employer unfair labor practices make a fair election impossible.
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing discrimination cases turning on employer motivation.
Acumen Capital Partners, LLC v. NLRB, 122 F.4th 998 (D.C. Cir. 2024): Affirmed that the General Counsel bears the burden of persuasion to show anti-union animus contributed to an employer's decision.
Thryv, Inc., 372 NLRB No. 22 (2022): Required compensation for direct or foreseeable pecuniary harms resulting from unlawful discharge.
Catalina Hills Botanical Care, Inc. D/B/a Curaleaf Midtown, JD(SF)-17-25, 28-CA-302934 (ALJ Decision)
In this case, ALJ Anzalone examined unfair labor practice charges against Curaleaf, a cannabis dispensary in Phoenix, following a successful union organizing campaign by UFCW Local 99 in 2022.
The ALJ found that Curaleaf violated Section 8(a)(1) by:
Telling employees bargaining would be futile and they could lose pay/benefits if they unionized
Prohibiting discussion of workplace health issues (rodent infestation)
Banning union insignia
Denying Weingarten rights and telling employees they had no union representation
The ALJ also found Curaleaf violated Section 8(a)(3) by unlawfully disciplining and discharging Nicholas Fredrickson, the lead union organizer. Using the Wright Line analysis, the judge determined Fredrickson's attendance discipline deviated from standard practice and was motivated by anti-union animus. His later disciplines were "tainted" by the initial unlawful action.
However, the ALJ dismissed allegations regarding employees Crawford (discharged for tip theft) and Tinajero (discharged for attendance violations), finding Curaleaf established legitimate reasons for these actions.
The 8(a)(5) allegations regarding unilateral changes were dismissed for insufficient evidence, and discipline-related 8(a)(5) allegations were dismissed based on Care One at New Milford precedent.
The ALJ ordered reinstatement with backpay for Fredrickson, rescission of unlawful directives, and notice posting.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established burden-shifting framework for analyzing discrimination cases.
NLRB v. J. Weingarten, 420 U.S. 251 (1975): Established employees' right to representation during investigatory interviews.
800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020): Held employers need not bargain before disciplining under established policies.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established employees' right to wear union insignia at work.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Distinguished lawful employer predictions from unlawful threats.
Marathon Health, LLC and OurHealth Professional Physicians Group, LLC, as a Joint Employer, 25-RC-365021 (Regional Election Decision)
In a representation case involving Marathon Health, LLC and OurHealth Professional Physicians Group, LLC as a joint employer, Teamsters Local 135 petitioned to represent medical assistants, medical receptionists, and patient care coordinators at a Marathon-managed clinic in Indianapolis. The Regional Director for NLRB Region 25 issued a decision on July 18, 2025, directing an election despite the employer's objections.
The employer raised several threshold arguments against processing the petition. First, they claimed the NLRB's structure violates Article II of the Constitution because Board members have removal protections. Second, they argued that with only two Board members currently seated (following President Trump's removal of Board Member Wilcox on January 27, 2025), the Board lacks the three-member quorum required to delegate authority to Regional Directors to process representation cases.
The Regional Director rejected both arguments. Regarding the constitutional claim, she cited recent Board precedent rejecting identical constitutional challenges. On the quorum issue, she explained that the Board's 1961 delegation of authority to Regional Directors to process representation cases remains valid despite the current lack of quorum, noting this position has been upheld by multiple federal courts of appeals.
The employer's primary substantive argument was that the petition should be dismissed because the Indiana Teamsters Health Benefits Fund (Fund) was allegedly a joint employer that should have been named in the petition, and that the union had a disqualifying conflict of interest in representing employees. The Fund is a Taft-Hartley health-and-welfare plan that contracts with Marathon to operate the clinic for Fund participants, who are primarily Teamsters-represented employees and their dependents.
The Regional Director analyzed whether the Fund exercised "substantial direct and immediate control" over any essential terms and conditions of employment (wages, benefits, hours, hiring, discharge, discipline, supervision, and direction) as required under the Board's 2020 joint employer rule. Finding no evidence that the Fund controlled any of these areas, the Director concluded it was not a joint employer. While Fund Administrator Wilson participated in the interview process for clinic staff, the evidence was insufficient to establish direct control over hiring decisions.
Regarding the conflict of interest claim, the Regional Director found no disqualifying conflict because the union and Fund are separate entities. The union appoints only two of the Fund's eight trustees, and there was no evidence the union dominated the Fund's decisions. The Director distinguished cases where unions were disqualified due to controlling employer boards or directly competing with employers, noting that here, the Fund reimburses Marathon for clinic operations but does not control day-to-day operations or staffing decisions.
The Regional Director directed an election to be held on July 25, 2025, for a unit of all full-time and regular part-time Medical Assistants, Medical Receptionists, and Patient Care Coordinators at the Indianapolis clinic.
Significant Cases Cited
New Process Steel, LP v. NLRB, 560 U.S. 674 (2010): Established that the Board must maintain a three-member quorum to exercise its authority.
SJT Holdings, Inc., 372 NLRB No. 82 (2024): Rejected claims that the Board's structure with removal protections for Board members is unconstitutional.
SuperShuttle International Denver, Inc., 357 NLRB 68 (2011): Established that the burden to prove a disqualifying conflict of interest is a "heavy one" requiring showing a "clear and present" danger.
Brentwood Assisted Living Community, 355 NLRB No. 149 (2010): Confirmed Regional Directors can properly process representation proceedings under delegated authority despite Board lacking a quorum.
Child Day Care Center, 252 NLRB 1177 (1980): Clarified that a union's participation in a trust fund doesn't preclude representation of fund employees when union officials don't constitute a majority on the board of trustees.