07/24/2026: Still Illegal to Terminate Someone for Talking About Wages
Also, information requests.
Manteca District Volunteer Ambulance Service, 375 NLRB No. 10, 32-CA-319646 (Published Board Decision)
The Board denied cross-motions for summary judgment filed by all three parties in a case alleging that an ambulance service unlawfully refused to bargain with and provide information to a union it had voluntarily recognized. Chairman Murphy and Member Mayer found that none of the parties had shown both the absence of genuine factual disputes and entitlement to judgment as a matter of law, noting that neither the General Counsel nor the Union had established that all the requested information was relevant under Board law, nor had the employer shown that none of it was relevant. As a result, the case was sent for an evidentiary hearing before an administrative law judge rather than being decided immediately.
Member Prouty dissented, arguing that the case presented no genuine factual disputes and that summary judgment should have been granted to the General Counsel and the Union. He laid out the undisputed history: the employer voluntarily recognized the union in April 2023 after a card-check certification, began providing bargaining-related information, but then refused further information requests and effectively withdrew recognition after an employee filed a decertification petition. A subsequent decertification election favored decertification, though the union's objections to that election remain pending.
Prouty explained that under longstanding Board precedent, the mere filing of a decertification petition does not suspend an employer's duty to bargain, whether the incumbent union was certified or voluntarily recognized. He cited Dresser Industries and RCA del Caribe for the principle that a decertification petition, requiring only 30 percent support, shows nothing more than minority disaffection and does not excuse a refusal to bargain. He rejected the employer's argument that the union's failure to secure a formal recognition bar under the now-rescinded Section 103.21 relieved it of its bargaining obligations, noting that obligation attaches immediately upon voluntary recognition and continues until the Board certifies an election loss. Prouty would have ordered the employer to furnish the requested information, to bargain with the union for six months to a year under an affirmative bargaining order, and to provide additional remedies including employee rights training and a mandatory meeting to read the notice.
Significant Cases Cited
Dresser Industries, Inc., 264 NLRB 1088 (1982): Held that the filing of a decertification petition, by itself, does not suspend an employer's obligation to bargain with an incumbent union.
RCA del Caribe, Inc., 262 NLRB 963 (1982): Established that a pending rival union or decertification petition does not automatically relieve an employer of its bargaining obligations.
Brown & Connolly, Inc., 237 NLRB 271 (1978): Held that once voluntary recognition is granted to a majority union, withdrawing from that commitment before a reasonable time for bargaining has elapsed violates the employer's bargaining obligation.
Industrial Power, 321 NLRB 816 (1996): Found that an employer violated Section 8(a)(5) and (1) by refusing to provide a voluntarily recognized union with requested, relevant information.
Alpha Associates, 344 NLRB 782 (2005): Recognized that an employer's voluntary recognition of a union gives rise to a presumption of majority support.
Everglades Partners LLC D/B/a Keke's Breakfast Cafe, 375 NLRB No. 8, 12-CA-357963 (Published Board Decision)
The National Labor Relations Board granted a default judgment against Everglades Partners LLC, doing business as Keke's Breakfast Café, after the company failed to respond to allegations that it illegally fired an employee for speaking up about tip-reducing practices.
The case began when employee Sean Power raised concerns with coworkers and later with the company's corporate office that managers were serving customers' tables themselves, cutting into the tips servers could earn. About two weeks after Power reported the issue to corporate, the company removed him from the schedule and fired him.
Because Keke's Breakfast Café never filed a formal answer to the complaint despite multiple notices and a deadline extension, and offered no explanation for its silence, the Board deemed all the allegations true under its procedural rules. The Board noted that a company representing itself without a lawyer does not have automatic grounds to excuse a missed answer, citing prior precedent on that point.
Based on the undisputed facts, the Board found that Power's actions, discussing tipping concerns with fellow employees and then reporting them to management, counted as protected concerted activity under Section 7 of the NLRA. Firing him for that activity violated Section 8(a)(1) of the Act.
As a remedy, the Board ordered the company to offer Power reinstatement to his old job or an equivalent one, and to make him financially whole for lost wages and benefits, plus any other direct costs tied to the firing, such as job-search expenses. The company must also compensate Power for tax consequences of a lump-sum backpay award, remove any record of the firing from its files, and post a notice to employees describing their rights under the NLRA.
Two of the three Board members, Chairman Murphy and Member Mayer, noted they still have unresolved reservations about the added compensation remedy from Thryv, Inc., but agreed to apply it in this case absent a majority to overturn that precedent.
Significant Cases Cited
Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Pro se status alone does not establish good cause for failing to file an answer to an NLRB complaint.
Sage Professional Painting Co., 338 NLRB 1068 (2003): Reaffirmed that a respondent's lack of legal representation does not excuse a failure to file a timely answer.
Thryv, Inc., 372 NLRB No. 22 (2022): Established that backpay remedies must include compensation for all direct or foreseeable pecuniary harms, not just traditional lost wages.
F.W. Woolworth Co., 90 NLRB 289 (1950): Set the standard method for computing backpay in NLRB remedial orders.
Kentucky River Medical Center, 356 NLRB 6 (2010): Required that interest on backpay awards be compounded daily.
President and Fellows of Harvard College (Harvard University), 375 NLRB No. 5, 01-CA-354044 (Published Board Decision)
The Board affirmed an administrative law judge's finding that Harvard University violated the NLRA by refusing to turn over an outside consultant's investigative report to the union representing its campus police officers.
The dispute arose after a Harvard-employed detective, who is a member of the Harvard University Police Association, was interviewed by an outside firm, Edward Davis Company, about how her supervisors had overseen her investigation of a student sexual assault case. The union asked for a copy of the resulting report multiple times over several months, explaining that it needed the document because the detective had filed an internal complaint alleging sex discrimination by her supervisors, and because the union was considering a grievance under the collective-bargaining agreement's anti-discrimination clause. The union also offered to accept redactions protecting the identities of the alleged victim and the accused student.
Harvard refused to produce the report, telling the union only that the document was confidential and that there was no basis to believe it was relevant. At the hearing, the university's associate director of labor relations, who had made that determination, admitted he had never actually read the report himself, and no other Harvard witness had read it either.
The judge concluded, and the Board agreed, that the report was presumptively relevant because it concerned a bargaining-unit employee's job performance and how she was supervised, and that it was independently relevant to her pending discrimination complaint and to the union's potential grievance. The Board rejected Harvard's argument that the report wasn't relevant simply because it hadn't led to discipline against a unit member.
On confidentiality, the Board held that Harvard failed to meet its burden under the balancing framework from Detroit Edison Co. v. NLRB because it offered nothing more than an unsupported assertion of confidentiality, backed by a witness who had never read the document. The Board also found that even if a legitimate confidentiality interest existed, it would have been outweighed by the union's need for the information, particularly since Harvard never responded to the union's proposed accommodations, such as redacting identifying details or limiting distribution of the report.
The Board adopted the judge's order requiring Harvard to produce the report, while modifying the remedy to make clear that the university may redact personal identifying information about the alleged victim and the accused student, consistent with the union's original request. Harvard was also ordered to post a notice to employees describing the violation and its obligations going forward.
Significant Cases Cited
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Establishes that an employer's duty to bargain includes furnishing information relevant and necessary to a union's representational duties, including deciding whether to pursue a grievance.
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Sets out the balancing test used to weigh an employer's legitimate confidentiality interest in requested information against a union's need for that information.
Northern Indiana Public Service Co., 347 NLRB 210 (2006): Holds that even where an employer shows a legitimate confidentiality interest outweighing the union's need, it cannot simply refuse to provide the information but must seek an accommodation.
Palace Station Hotel & Casino, 368 NLRB No. 148 (2019): Holds that a party withholding information on confidentiality grounds forfeits that defense if it fails to offer to bargain over accommodations.
Olean General Hospital, 363 NLRB 561 (2015): Found that a union's request for a survey and list of deficiencies was relevant to possible disciplinary matters and outweighed the employer's confidentiality interest.
Kroger Limited Partnership I D/B/a Kroger Delta Division, 375 NLRB No. 6, 15-CA-280676 (Published Board Decision)
The Board affirmed an administrative law judge's findings that a Kroger grocery chain division violated the NLRA by unilaterally ending dues checkoff for its employees and by unreasonably delaying in giving their union information it had requested about payroll problems.
The dispute arose after collective-bargaining agreements between Kroger's Delta Division and UFCW Local 2008, covering grocery and meat department workers in Arkansas, expired in 2020 and were extended informally until June 2021. After negotiations stalled over a proposed change to employee health benefits, Kroger told the union in July 2021 that it would stop deducting and forwarding union dues from employees' paychecks. Internal company communications showed that Kroger intended the move to pressure the union back to the bargaining table. The parties eventually reached new agreements in 2022 that restored dues checkoff.
The Board found this unilateral cutoff of dues checkoff unlawful under its decision in Valley Hospital Medical Center, which held that dues-checkoff provisions, unlike no-strike clauses, survive contract expiration and must be maintained until the parties bargain to impasse or reach a new agreement. Kroger argued it should be excused because it acted while an earlier, since-overturned Board decision permitted employers to stop dues checkoff after contract expiration, and because applying the new rule retroactively was unfair given the circumstances, including the threat of a strike and an internal agency memo recommending dismissal of a similar case. The Board rejected these arguments, agreeing with the judge that legal uncertainty around dues checkoff was already apparent when Kroger acted, so retroactive application of the newer rule did not create a manifest injustice. The Board also rejected Kroger's claims of impasse, contractual waiver, due process violations, and laches.
Separately, the Board upheld the finding that Kroger unreasonably delayed for months in giving the union a spreadsheet tracking employees' payroll errors, despite repeated and increasingly specific requests, even though Kroger had the document readily available and never explained the delay.
The Board ordered Kroger to reimburse the union for unpaid dues with interest, without recouping the money from employees, to turn over the requested payroll information, and to post a notice to employees at its Arkansas facilities. One Board member wrote separately to note reservations about requiring reimbursement for dues withheld before the law changed, while agreeing to apply existing precedent for consistency.
Significant Cases Cited
Valley Hospital Medical Center, 371 NLRB No. 160 (2022): Held that dues-checkoff provisions survive the expiration of a collective-bargaining agreement and must be maintained until the parties bargain to a new agreement or overall impasse, overruling earlier precedent.
NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer's unilateral change to terms and conditions of employment during a period when it must bargain with a union violates the duty to bargain in good faith.
Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991): Held that certain terms and conditions of employment continue after a contract expires as terms imposed by law rather than as continuing contractual obligations.
Lincoln Lutheran of Racine, 362 NLRB 1655 (2015): Held that an employer's obligation to collect and remit union dues continues after a collective-bargaining agreement expires, absent a clear and unmistakable waiver by the union.
TDY Industries, LLC, 369 NLRB No. 128 (2020): Held that an employer must make a reasonable, good-faith effort to respond to a union's information request as promptly as circumstances allow, and that unreasonable delay violates the duty to bargain just as an outright refusal would.
Syntact, LLC, JD-46-26, 10-CA-371322 (ALJ Decision)
An administrative law judge recommended dismissal of an unfair labor practice complaint alleging that a small medical services company unlawfully fired an employee for engaging in protected concerted activity.
The case involved Syntact, LLC, a Georgia company that provides neurophysiological monitoring technicians to hospitals during surgery. The company's owner, Justin McLoughlin, had hired his college fraternity brother, Blake Pierce, in 2010 to work as a monitoring technician. In 2021, Pierce was moved to a salary and given the title "Supervising Neurophysiologist, Lead Clinical Manager/Trainer."
The company argued that Pierce's title made him a supervisor under the NLRA, which would have stripped him of the law's protections. The judge rejected that defense, finding that while Pierce trained new technicians and sometimes recommended when they were ready to work without supervision, the evidence did not show his recommendations directly affected any employee's pay or job status, a required showing under Board precedent such as Modesto Radiology Imaging and Harbor City Volunteer Ambulance Squad.
Turning to the merits, the judge found that Pierce engaged in protected concerted activity when he relayed coworkers' complaints about workload and scheduling to McLoughlin, including telling him a week before the discharge that several employees, including one who had threatened to quit, were unhappy. Because the case did not involve union activity, the judge applied the Wright Line burden-shifting framework used for Section 8(a)(3) cases to this Section 8(a)(1) discharge claim, noting that intent is relevant to this type of violation even though it does not require proof of union animus.
The judge concluded that the General Counsel failed to prove animus. Although Pierce was fired about a week after raising the complaints, the judge found the timing was explained by other factors: McLoughlin's long-standing reluctance to fire a close friend, the months of training needed to replace Pierce, and a New Year's Day incident in which Pierce refused an emergency assignment, which the judge found was the real reason for the discharge. The judge also declined to treat McLoughlin's statement that Pierce was "not happy" as coded language for protected activity, and rejected the General Counsel's request for an adverse inference based on the company's response to a subpoena, finding no evidence of intentional noncompliance. Because animus was not established, the complaint was dismissed.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing whether an employer's adverse action against an employee was motivated by protected activity.
Modesto Radiology Imaging, Inc., 361 NLRB 888 (2014): Held that the authority to evaluate employees is not itself one of the statutory indicia of supervisory status.
Harbor City Volunteer Ambulance Squad, 318 NLRB 764 (1995): Found that employees who evaluated trainees and recommended advancement were not supervisors absent proof the recommendations directly changed pay or employment status.
Willamette Industries, 341 NLRB 560 (2004): Set out the General Counsel's burden to show protected activity, employer knowledge, and animus to establish a motivating factor under Wright Line.
Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Held that evidence of animus must also support a causal link between the protected activity and the adverse action.
Injexed Medbar, JD-47-26, 16-CA-327568 (ALJ Decision)
An administrative law judge has found that a Frisco and Plano, Texas medical spa violated the NLRA by barring employees from discussing their pay, disciplining an employee for doing so, and then firing her.
The case centered on Savannah Smith, a laser technician and esthetician at Injexed Medbar LLC, who in June 2023 spoke with a coworker, office manager Tali Wald, after Wald noticed that some of Smith's sales commissions were missing from her pay report. Smith raised the issue with the spa's owners, David and LaDelle Maez, and pressed to have it resolved before the next payroll ran. During a June 8 phone call about the matter, David became angry and raised his voice at Smith, who then stepped inside the spa so Wald could witness the exchange.
At a meeting the next day, David issued Smith two verbal warnings: one for discussing pay with a coworker, and another for allegedly adding her own name to commissions that weren't hers and for talking over management. During that same meeting, David repeatedly told Smith she was prohibited from discussing wages or commissions with other employees under company policy, even after Smith told him such discussions were protected by federal law. Four days later, on June 13, LaDelle fired Smith by text message, citing simply that she wasn't "the right fit."
The judge first addressed whether Wald counted as a supervisor under Section 2(11) of the Act, since that status would strip legal protection from her conversation with Smith. The judge found Respondent failed to prove Wald exercised genuine supervisory authority: she didn't hire, fire, discipline, or evaluate employees, and while she handled scheduling and helped input commissions, LaDelle retained ultimate control over those functions. As a result, Smith and Wald's wage discussion counted as activity between two coworkers.
The judge concluded that David's statements at the June 9 meeting amounted to the oral announcement of a rule barring wage discussions, which explicitly restricted rights protected by Section 7 of the Act and was therefore unlawful without further analysis, citing the Board's approach in Stericycle, Inc. The judge also found that Smith and Wald's exchange about the missing commissions, and Smith's follow-up efforts to resolve the issue with management, were protected concerted activity because wage discussions among employees are inherently concerted under longstanding Board precedent, and because Smith's later actions were a direct outgrowth of that initial conversation.
Applying the Board's Wright Line framework to the discipline and discharge, the judge found General Counsel had shown Smith engaged in protected activity, that Respondent knew about it, and that animus drove its actions, pointing to the timing of the discipline and firing, shifting and inconsistent explanations offered by David and LaDelle across the NLRB hearing and an earlier Texas Workforce Commission proceeding, and Respondent's failure to investigate its claims against Smith. The judge specifically discredited David and LaDelle's hearing testimony, noting it contradicted their own sworn statements to the state unemployment agency, where David testified that wage discussions were "absolutely" a reason for Smith's firing. Because Respondent's stated reasons were found pretextual, it failed to show it would have taken the same actions regardless of Smith's protected conduct.
The judge ordered Injexed Medbar to rescind its no-wage-discussion policy, reinstate Smith, make her whole for lost pay and other financial harms with interest, remove references to the unlawful discipline and discharge from her file, and post a notice to employees describing their rights under the Act.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for evaluating whether an employer's adverse action against an employee was unlawfully motivated by protected activity.
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Holds that the party asserting an individual is a statutory supervisor bears the burden of proving that status.
Oakwood Healthcare, 348 NLRB 686 (2006): Establishes that supervisory status depends on the authority an individual actually exercises, not their job title, and requires the use of independent judgment.
Stericycle, Inc., 372 NLRB No. 113 (2023): Holds that a work rule is unlawful without further analysis when it explicitly restricts activity protected by Section 7 of the Act.
Fresh & Easy Neighborhood Market, Inc., 356 NLRB 588 (2011): Found that an employer unlawfully promulgated a rule against discussing protected topics when a manager orally told an employee on separate occasions that such discussions were not allowed.