07/27/2026: Complaining About Workplace DEI Programs Can Be Protected Activity
Employer retaliation against working condition complaints is illegal.
Boxart, Inc., 375 NLRB No. 12, 29-CA-370489 (Published Board Decision)
The Board granted the General Counsel's motion for default judgment against Boxart, Inc., a Brooklyn-based fine art packing, crating, storing, and transporting company, after it failed to file a timely answer to a complaint alleging violations of Section 8(a)(3) and (1) of the NLRA.
The complaint stemmed from a charge filed by Teamsters Local 814 in 2025. After the General Counsel issued a complaint in April 2026, the Respondent did not file an answer within the required period. The Region warned the Respondent by letter, and the Respondent's counsel twice requested extensions, citing a change in company ownership. Despite reminders, including one from the assigned administrative law judge's office urging a response "asap," no answer was filed until after the Board issued a Notice to Show Cause, at which point the Respondent submitted both a late response and an untimely answer.
In its defense, the Respondent argued that good cause existed for the delay because it had been sold due to financial difficulties and had been unable to pay its legal bill until the balance was settled. The Board rejected this explanation, holding that an inability to pay counsel does not establish good cause for missing a filing deadline. The Board cited its precedent that lacking representation, whether due to having no lawyer at all or being unable to pay one, does not excuse a late answer. The Board also noted that the Respondent failed to submit a sworn affidavit supporting its request for a late filing, as required by the Board's rules. It further rejected the argument that the delay caused no prejudice, explaining that a showing of prejudice is not necessary to enforce compliance with the Board's procedural rules.
Having deemed the complaint's factual allegations admitted, the Board found that Boxart discharged employees Sofia Franklin, Ruaridh Gonzales, and Henry Sekimotto because it believed they had joined the Union and engaged in concerted activity, and to discourage other employees from similar activity. This conduct violated Section 8(a)(3) and (1) of the NLRA.
As a remedy, the Board ordered Boxart to offer the three employees full reinstatement, make them whole for lost earnings and benefits plus any other direct or foreseeable pecuniary harms, compensate them for adverse tax consequences of a lump-sum backpay award, file backpay allocation reports and W-2 forms with the Regional Director, remove references to the unlawful discharges from its files, and post a notice to employees. Chairman Murphy and Member Mayer noted, consistent with their positions in other recent cases, that they continue to reserve judgment on whether the compensatory remedies from Thryv, Inc. are permissible under the Act, but applied that precedent in the absence of a majority to overrule it.
Significant Cases Cited
Quality Investigations, Inc., 370 NLRB No. 138 (2021): Merely being unrepresented by counsel does not establish good cause for failing to respond to Board filings.
Lockhart Concrete, 336 NLRB 956 (2001): Addressed what does not constitute good cause for failing to file a timely answer.
Harvey Reeds Lawn & Garden Care Servs. Co., 321 NLRB 1002 (1996): A respondent's financial situation and contemplation of bankruptcy did not constitute good cause for failing to file an answer.
Perry Brothers Trucking, Inc., 364 NLRB 58 (2016): Where a respondent fails to answer until after a Notice to Show Cause issues despite written notice, and fails to show good cause, later attempts to answer will be denied as untimely.
Thryv, Inc., 372 NLRB No. 22 (2022): Established that respondents must compensate discriminatees for all direct or foreseeable pecuniary harms resulting from unfair labor practices, beyond traditional backpay.
Everyone Can Achieve, 375 NLRB No. 9, 04-CA-338985 (Published Board Decision)
The Board granted the General Counsel's motion for default judgment against a Delaware traffic control and construction consulting company after it failed to comply with a settlement agreement resolving unfair labor practice charges brought by Local 199, Laborers International Union of North America, AFL–CIO.
The union had filed charges alleging that the company failed to bargain in good faith by refusing to turn over information the union needed to represent employees under its collective-bargaining agreements. The company and union reached an informal settlement in October 2024 requiring the company to furnish the requested information, post an employee notice, and prove compliance to the Region. The settlement contained a default language provision: if the company failed to comply after 14 days' notice, the Regional Director could issue a complaint, and the company would be deemed to have admitted all allegations and waived its right to answer.
After the company missed a compliance deadline extended to March 13, 2025, and continued to not comply despite further communications, the Regional Director issued a consolidated complaint under the settlement's noncompliance provisions. The company did not respond to the Board's notice to show cause, so the allegations went undisputed.
Based on the default, the Board found that the company had recognized the union as the limited exclusive bargaining representative of a unit of highway construction employees under Section 8(f) of the NLRA, and that the union's March and May 2024 information requests, covering job assignments, worker classifications, wage rates, benefit contributions, and hiring hall referrals, were necessary and relevant to the union's representational duties. The Board concluded the company violated Section 8(a)(5) and (1) of the NLRA by failing and refusing to furnish some of that information and by unreasonably delaying other portions of it.
The Board ordered the company to cease and desist from these violations, furnish the outstanding information to the union, and post a notice to employees at its Wilmington facility.
Significant Cases Cited
U-Bee, Ltd., 315 NLRB 667 (1994): Supports finding that allegations in a default judgment motion are deemed true when a respondent fails to comply with a settlement agreement's noncompliance provisions.
Apex Fintech Solutions, JD-48-26, 12-CA-325317 (ALJ Decision)
An administrative law judge found that a financial technology company unlawfully fired a data engineer after he publicly criticized the company's diversity programs and accused specific executives of tolerating anti-male bias.
The employee had objected, starting soon after he was hired in 2021, to a company-sponsored program called Poker Power that limited participation to people who identified as female, and later complained about sexist jokes and a women-only mentoring program he found on an internal Slack channel. In July 2023 he emailed his manager and a director to report what he called sexism in company channels, and the company hired outside counsel to investigate. Shortly after, an HR representative told him to keep the investigation confidential and to raise concerns only through "proper channels."
In late August 2023, the employee posted two lengthy LinkedIn articles accusing the company of fostering a culture of bigotry, naming several employees, including one he said had gone on a "tirade" against white men during a DEI panel. When the company demanded he remove "false, derogatory, disparaging and/or defamatory" statements without specifying which ones, he asked for specifics and refused to retract anything. The company fired him on September 1, 2023, citing his refusal to retract the posts under the non-disparagement clause of his employment agreement, and a month later sued him for defamation, later abandoning that suit without explanation.
The judge held that the employee's posts and internal complaints were protected concerted activity because he was trying to rally coworkers around workplace conditions and encouraged others to file discrimination charges. Applying the framework from Atlantic Steel Co. and Wright Line, the judge found the company failed to prove the employee's statements were false, let alone maliciously false, particularly given its failure to call any witnesses who were present at the DEI meetings or to authenticate the transcript it relied on. Because the company could not show its statements were false, its later lawsuit against the employee also violated the NLRA under the standard from Bill Johnson's Restaurants, Inc. v. NLRB, as did HR's demands that he stop discussing his complaints outside "proper channels." The judge separately found that the confidentiality and non-disparagement provisions in the company's standard employment agreement were unlawfully broad under Stericycle, Inc., because they could be read to bar employees from discussing company practices, training materials, or even the identities of coworkers involved in protected activity.
The judge ordered the company to reinstate the employee with backpay and other compensation, rescind the unlawful contract provisions, remove references to the discharge from his file, and post a notice to employees.
Significant Cases Cited
Atlantic Steel Co., 245 NLRB 814 (1979): Set out the four-factor test for whether an employee's outburst during otherwise protected activity loses the Act's protection.
Wright Line, 251 NLRB 1083, enforced by General Motors, 369 NLRB No. 127 (2020): Establishes the burden-shifting framework for proving discriminatory motive in discharge cases.
Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983): Holds that an employer's lawsuit against an employee violates the Act if it lacks a reasonable basis and is filed with retaliatory motive.
NLRB v. Burnup & Sims, 379 U.S. 21 (1964): Requires an employer to show a good-faith belief that an employee made false statements before discipline for those statements can be lawful.
Stericycle, Inc., 372 NLRB No. 113 (2023): Sets the current standard for evaluating whether facially neutral workplace rules unlawfully chill employees' exercise of their rights.
Starbucks Corporation, JD(SF)-13-26, 19-CA-332361 (ALJ Decision)
An administrative law judge found that Starbucks Corporation committed several violations of the NLRA during union organizing drives at two Renton, Washington stores in 2023 and 2024, while dismissing other allegations against the company.
The case centered on organizing efforts at Starbucks' Petrovitsky Road and Grady Way locations, where workers sought representation by Workers United. The judge found that a district manager unlawfully interrogated a shift supervisor, Nicole D'Ettore, by asking her in a one-on-one meeting whether she had heard anything about unionizing at the store. Applying the Board's longstanding totality-of-the-circumstances test from Rossmore House, the judge weighed factors including the formality of the meeting, the seniority of the questioner, and the lack of any assurance against reprisals, concluding the questioning was coercive.
The same conversation was also found to be an unlawful solicitation of grievances. When the manager followed her union question by asking what coworkers were worried about, the judge held this created an implied promise to fix those problems, since Starbucks failed to show it had a genuine practice of soliciting employee concerns before the union campaign began.
The judge also found that a store manager violated the NLRA by telling D'Ettore she could not wear a union pin because it was not "Starbucks approved," even though the company's policy has long allowed one reasonably sized union button and even though a manager later said she could keep wearing it. Because employees had previously worn non-Starbucks-issued pins without any problem, the initial instruction to remove the pin was discriminatory enforcement of the dress code.
A December meeting between D'Ettore and store and district managers produced further violations. The judge found the managers unlawfully solicited grievances again by asking employees for their opinions about the union at the meeting's close. He also found unlawful threats in statements that management assistance would be harder to get if the store unionized, that borrowing shifts between stores might become difficult, and that new benefits could be withheld for the year or more it typically takes to negotiate a first contract.
Two allegations were dismissed. A store manager's profanity-laced Snapchat video mocking union protesters as whiny and lacking hobbies was found not to violate the Act because it never named any individual employee and contained no threats, distinguishing it from cases like Great Atlantic & Pacific Tea Co., where a sign singled out a specific union supporter by name. The judge also dismissed a claim that D'Ettore was harassed over job performance issues, including being asked about a possible medical accommodation for memory problems, finding this conduct wasn't adequately alleged in the complaint and, in any event, did not amount to an adverse employment action.
Significant Cases Cited
Rossmore House, 269 NLRB 1176 (1984): Established the totality-of-the-circumstances test for evaluating whether employer questioning about union activity constitutes unlawful interrogation.
Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92 (D.C. Cir. 2000): Held that an employer soliciting grievances for the first time during a union campaign creates a compelling inference of an implied promise to remedy them.
Siren Retail Corp. d/b/a Starbucks Reserve Roastery, 373 NLRB No. 140 (2024): Found that Starbucks' restriction on wearing more than one union pin violated the NLRA absent proof of special circumstances.
Great Atlantic & Pacific Tea Co., 192 NLRB 645 (1971): Found a violation where an employer posted signs ridiculing a specific named union supporter as a "punk."
Wright Line, 251 NLRB 1083 (1980): Set the burden-shifting framework for evaluating whether an adverse employment action was motivated by protected activity.
J.R. Simplot Company, LLC, 32-RC-387441 (Regional Election Decision)
A regional director for the National Labor Relations Board has directed a manual election among a group of delivery drivers at an agribusiness company's California facility, rejecting the employer's argument that the voting unit should instead include all of the facility's employees.
Teamsters Local 431 petitioned to represent full-time and regular part-time drivers at J.R. Simplot Company's Helm, California facility, which distributes agricultural products like seed, fertilizer, and pesticides to retail stores and directly to growers. The petitioned-for group covered about 16 drivers split between "shuttle drivers," who haul products from the Helm facility to Simplot's retail stores along fixed routes, and "retail drivers," who deliver directly to customers along routes that change daily. The employer argued that the unit was too narrow and should instead include warehouse workers, office staff, and dispatchers across the facility's three departments.
Applying the framework from American Steel Construction, Inc., the regional director first found that the petitioned-for drivers share an internal community of interest and are readily identifiable as a group, pointing to their shared requirement of a Class A commercial driver's license and hazardous materials endorsement, their common role of hauling products away from the facility, their ability to fill in for each other, and their shared wage structure and Department of Transportation regulatory obligations. Differences between shuttle and retail drivers, such as route length and trailer type, were not enough to defeat that shared interest.
The decision then turned to whether any excluded employees, including warehouse workers, office staff, and dispatchers, shared an "overwhelming" community of interest with the drivers such that they had to be included in the unit. The regional director found the employer failed to meet that burden. While drivers shared department affiliation and some functional integration with warehouse employees and dispatchers, they had markedly different skills and training, distinct job functions, limited contact with other classifications, almost no interchange with non-driver employees, and different terms of employment such as government-regulated hours, drug testing, and specialized uniforms. Citing Home Depot USA, Inc. and Mc-Mor-Han Trucking Co., the decision noted that the Board has previously approved driver-only units under similar circumstances.
Because the petitioned-for unit met the standard for an appropriate bargaining unit, and the employer did not show that other employees had to be folded in, the regional director ordered a secret-ballot election limited to the driver classifications, scheduled for August 5, 2026, at the Helm facility.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Set out the current three-part test for an appropriate bargaining unit and the "overwhelming community of interest" standard for challenging exclusions from a petitioned-for unit.
American Hospital Ass'n v. NLRB, 499 U.S. 606 (1991): Held that a petitioned-for unit need only be "an" appropriate unit for bargaining, not the single most appropriate one.
Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008): Established that excluded employees share an overwhelming community of interest with a petitioned-for unit only when traditional community-of-interest factors overlap almost completely.
Home Depot USA, Inc., 331 NLRB 1289 (2000): Found a driver-only unit appropriate based on drivers' distinct terms and conditions of employment, certification requirements, and uniforms.
Mc-Mor-Han Trucking Co., 166 NLRB 700 (1967): Approved a driver-only unit for a trucking company where a union sought to represent drivers separately and no other union sought a broader unit.
Goodkind Group & Park Lane Hotel, as Joint Employers, 02-CA-372011 (Unpublished Board Decision)
The Board denied Goodkind Group LLC's petition to revoke an investigative subpoena issued in connection with unfair labor practice charges involving the company and Park Lane Hotel, alleged joint employers, and Restaurant Workers Union, Local 1.
The Board found that the subpoena sought information relevant to the matters under investigation and described the evidence sought with the particularity required under Section 11(1) of the NLRA and Section 102.31(b) of the Board's Rules and Regulations. It also found that Goodkind Group had not established any other legal basis for revoking the subpoena. The Board noted that although it considered modifications the Region had offered in its opposition to the petition, those modifications were not necessary to its conclusion that the petition lacked merit.
The Board ordered Goodkind Group to produce the subpoenaed materials within five business days of the order.
Significant Cases Cited
NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005 (9th Cir. 1996): Addressed the standards governing enforcement and revocation of NLRB investigative subpoenas.
NLRB v. Carolina Food Processors, Inc., 81 F.3d 507 (4th Cir. 1996): Addressed the standards governing enforcement and revocation of NLRB investigative subpoenas.
Starbucks Corporation, 01-RC-359305 (Unpublished Board Decision)
The Board denied the Employer's requests for review of a Regional Director's decision directing an election and certifying the union as the representative of a group of Starbucks employees, finding that the arguments raised did not present substantial issues warranting further consideration.
The Employer had argued that shift managers hold supervisory authority because they can effectively recommend discipline, but the Board declined to consider this argument since the Employer had not raised it before the Regional Director, as required by the Board's procedural rules. The Board also noted that, even on the merits, the Employer had not shown that store managers accepted shift managers' disciplinary recommendations without conducting their own independent investigation, citing Los Angeles Water & Power Employees' Assn.
The Employer separately argued that shift managers exercise independent judgment when assigning baristas to specific duty stations, sometimes called "play calling," because they do not always rely on the company's scheduling application and instead consider barista preferences only some of the time. The Board rejected this argument, explaining that the Employer relied on inference rather than specific evidence to show that the alternative assignment methods actually involved independent judgment. Citing G4S Regulated Security Solutions, the Board reiterated that conclusory statements or inferences, without detailed and specific evidence, are not enough to establish supervisory status. Because the Employer failed to meet its burden, the Board denied review of the Regional Director's finding that shift managers do not assign work using independent judgment.
Significant Cases Cited
Los Angeles Water & Power Employees' Assn., 340 NLRB 1232, 1234 (2003): A party asserting supervisory status based on disciplinary recommendations must show that those recommendations are acted upon without independent investigation by higher management.
G4S Regulated Security Solutions, 362 NLRB 1072, 1072 (2015): Mere inferences or conclusory statements, without detailed, specific evidence, are insufficient to establish supervisory authority.