07/28/2026: Gissel Bargaining Order in Default Judgment Case
Plus a couple of generic test-of-certification cases.
Statesville Painting and Maintenance LLC, 375 NLRB No. 11, 10-CA-325878 (Published Board Decision)
The Board granted the General Counsel's motion for default judgment against Statesville Painting and Maintenance LLC after the company failed to file a timely answer to a consolidated complaint alleging numerous violations of the NLRA.
The Respondent argued that its owner, Vincent Brown Sr., could not respond because he was recovering from surgeries and other medical issues. The Board rejected this explanation as insufficient good cause, noting that the company never requested an extension before the deadline passed, waited more than 50 days after the answer was due to seek leave to file late, and continued conducting other business and legal matters during the period in question, including a separate federal court case where Brown signed an affidavit agreeing to represent himself. The Board cited Day & Zimmerman Services and Carmody, Inc. for the principle that a company cannot avoid its obligations under the Act by vesting them in a single employee who later experiences personal difficulties.
Although it deemed the complaint's factual allegations admitted, the Board declined to find a violation based on the Respondent's characterization of the Union as "good for nothing," reasoning that employers may disparage a union without violating Section 8(a)(1) so long as the remarks do not threaten employees, citing Children's Center for Behavioral Development.
On the admitted facts, the Board found that the company violated Section 8(a)(1) by threatening employees with discharge for raising overtime concerns, banning union apparel, telling employees that unionizing would be futile, creating the impression of surveillance, promising improved benefits to discourage union support, and coercively interrogating employees. It also found violations of Section 8(a)(3) and (1) for discharging and laying off several employees because of their union support, and a violation of Section 8(a)(5) and (1) for refusing to bargain with the union after it achieved majority support through authorization cards.
Given the seriousness and pervasiveness of the misconduct, and applying the standard from NLRB v. Gissel Packing Co., the Board found that traditional remedies, including a rerun election, would be inadequate to protect employee free choice, and it issued a bargaining order requiring the company to recognize and bargain with the union. The Board's remedy also included reinstatement and backpay for the affected employees, tax-related compensation, and notice posting, mailing, and reading requirements in both English and Spanish.
Significant Cases Cited
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Establishes that a bargaining order may issue without an election where an employer's unfair labor practices are so serious that traditional remedies cannot ensure a fair rerun election, and union majority status is instead evidenced by authorization cards.
Day & Zimmerman Services, 325 NLRB 1046 (1998): Holds that a respondent's failure to promptly request an extension of time to file an answer is a factor showing lack of good cause for a late filing.
Carmody, Inc., 327 NLRB 1230 (1999): Holds that an employer cannot avoid its statutory obligations by delegating them to a single employee and then citing that employee's personal problems as an excuse for noncompliance.
Children's Center for Behavioral Development, 347 NLRB 35 (2006): Holds that an employer may criticize or disparage a union without violating Section 8(a)(1) as long as the statements do not threaten employees or interfere with Section 7 rights.
Thryv, Inc., 372 NLRB No. 22 (2022): Requires make-whole remedies to include compensation for any direct or foreseeable pecuniary harms resulting from unlawful conduct, beyond traditional backpay.
Walgreens Company, 375 NLRB No. 14, 19-CA-359612 (Published Board Decision)
The Board found that Walgreens Company unlawfully refused to bargain with The Pharmacy Guild, affiliated with the International Association of Machinists & Aerospace Workers, AFL–CIO, after the union was certified as the exclusive bargaining representative of pharmacists and pharmacy technicians at a Vancouver, Washington store.
The case arrived at the Board through a familiar procedural path: Walgreens admitted it was engaged in a "technical refusal to bargain" so that it could contest the underlying certification, but the Board found none of its challenges warranted a hearing. Walgreens had argued that the union was never properly certified because of alleged supervisory taint and because of the Board's decision in Amazon.com Services LLC, which prohibited mandatory captive-audience meetings. The Board held that these arguments had already been raised and rejected in the underlying representation case, and that Walgreens offered no newly discovered evidence or special circumstances that would justify revisiting that decision.
The Board also rejected a series of other defenses. It found that Walgreens' denial that the union qualified as a labor organization did not raise a litigable issue because the parties had stipulated to that status in the representation proceeding. It rejected Walgreens' argument that the complaint failed to state a claim, noting that the company's own admission that it refused to bargain established the violation. The Board likewise rejected constitutional arguments concerning the agency's combined prosecutorial and adjudicatory functions and concerning removal protections for Board members and administrative law judges, finding that Walgreens had not shown any harm resulting from those removal provisions and that courts have largely rejected the argument that agency proceedings themselves constitute irreparable harm.
Having granted the General Counsel's motion for summary judgment, the Board concluded that Walgreens violated Section 8(a)(5) and (1) of the NLRA and ordered the company to bargain with the union on request, to post a notice to employees, and to certify compliance with the Board's order. The Board also specified that the union's certification year would begin running only once Walgreens starts bargaining in good faith.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): An employer cannot relitigate representation issues in a subsequent unfair labor practice proceeding absent newly discovered evidence or special circumstances.
Amazon.com Services LLC, 373 NLRB No. 136 (2024): The Board prohibited employers from requiring employees to attend mandatory captive-audience meetings concerning union representation.
Collins v. Yellen, 594 U.S. 220 (2021): A party challenging removal protections as unconstitutional must show harm actually resulting from those protections to obtain relief.
Trump v. Slaughter, 609 U.S. — (2026): The Supreme Court indicated that an unconstitutional removal provision should be severed from a statute rather than invalidating the statute as a whole.
Withrow v. Larkin, 421 U.S. 35 (1975): Administrative agencies may combine investigative, prosecutorial, and adjudicatory functions without violating due process.
Renal Treatment Centers - California, Inc. D/B/a Davita Concord Dialysis Center, 375 NLRB No. 13, 32-CA-347702 (Published Board Decision)
The Board granted summary judgment against DaVita Concord Dialysis Center in a technical refusal-to-bargain case, finding that the company violated the NLRA by refusing to recognize and bargain with the Service Employees International Union, United Healthcare Workers-West, after the union won a representation election.
The company had contested the union's certification, arguing the Regional Director erred by directing an election in a single-facility unit and raising several objections to the election. The Board found these were the same representation issues already raised and rejected in the underlying representation case, and that the company offered no newly discovered evidence or special circumstances that would justify revisiting them. Citing Pittsburgh Plate Glass Co. v. NLRB, the Board held that such issues cannot be relitigated in an unfair labor practice proceeding.
The company also argued that two related unfair labor practice charges should be consolidated with this case, but the Board found that decision fell within the General Counsel's prosecutorial discretion and did not bar summary judgment. The Board separately rejected several constitutional defenses, including claims involving removal protections for Board members and administrative law judges under Article II, and a claim that adjudicating the case without a jury violated the Seventh Amendment, citing established precedent that the NLRA creates public rights that can be adjudicated administratively.
Having found the refusal to bargain unlawful, the Board ordered the company to bargain with the union on request and to post and distribute a notice to employees. It also adjusted the certification's start date so the union's initial bargaining period would run from whenever the company begins bargaining in good faith, consistent with the Board's standard remedy for technical refusal-to-bargain cases. Member Prouty wrote separately to state he would have also ordered a notice mailing and reading, a remedy the majority did not adopt, finding the traditional remedies sufficient.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): A party cannot relitigate representation issues in a subsequent unfair labor practice proceeding when those issues were or could have been raised in the underlying representation case.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The NLRA does not implicate Seventh Amendment jury trial rights.
Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Congress may assign adjudication of public rights created by statute to an administrative agency without violating the Seventh Amendment.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Establishes that a certification year begins running only once an employer actually begins bargaining in good faith with the certified union.
NP Palace LLC, 368 NLRB No. 148 (2019): A certified union's bargaining representative status and the employer's duty to bargain attach once certification issues, supporting standard remedies in technical refusal-to-bargain cases.