08/11/2026: Employer Used ChatGPT to Explain That It Fired Employee for Talking About Pay
Also, Board chimes in on the permissible scope of arbitration confidentiality.
Ralphs Grocery Company, the Kroger Co., 375 NLRB No. 25, 21-CA-073942 (Published Board Decision)
The Board addressed, on remand from the Ninth Circuit, whether a grocery chain's mandatory arbitration policy unlawfully restricted employees' rights under the NLRA. Two narrow questions were before the Board: whether the policy's confidentiality provision was lawful, and whether the policy interfered with employees' ability to access the Board and its processes.
The case traces back to a 2009 wage-and-hour lawsuit filed by security guard Terri Brown against Ralphs Grocery Company. Ralphs sought to compel arbitration under its Mediation and Binding Arbitration Policy, prompting Brown to file an unfair labor practice charge. In its original decision, Ralphs Grocery I, the Board found the arbitration policy unlawful on three grounds: it required employees to waive class or collective claims, it interfered with Board access, and it imposed an overbroad confidentiality requirement. While Ralphs' appeal was pending, the Supreme Court decided Epic Systems Corp. v. Lewis, holding that employer arbitration policies barring class or collective actions are lawful. The Ninth Circuit vacated the portion of the Board's order affected by that ruling and sent the remaining issues back to the Board.
On the confidentiality question, the Board majority (Chairman Murphy and Member Mayer) applied its precedent in California Commerce Club, which holds that the Federal Arbitration Act shields confidentiality rules governing how an arbitration is conducted, but not requirements that reach beyond the arbitration itself. Applying that framework, the majority found that requiring employees to keep the content and outcome of an arbitration confidential was lawful, since those requirements relate to the arbitration proceeding itself. But the requirement that employees keep even the existence of an arbitration confidential went too far, the majority reasoned, because it amounted to an open-ended gag order unconnected to the rules governing the arbitration and therefore violated Section 8(a)(1).
On Board access, the majority concluded the policy was lawful. The policy included a clause stating that, notwithstanding any other provision, employees retained the right to file charges with the NLRB and EEOC. Applying the Board's current standard from Stericycle for evaluating workplace rules, and relying on its reasoning in Anderson Enterprises, the majority found this savings clause prominent and clear enough that no reasonable employee would read the policy as blocking access to the Board or believe that filing a charge would be futile.
On remedy, the Board rejected Ralphs' argument that the case was moot because it had since revised the policy, finding no evidence employees were ever notified of any rescission. Because the General Counsel did not dispute that the offending language had already been removed from the current policy, the Board declined to order formal rescission and instead required a notice informing employees of the violation found.
Member Prouty dissented in part. He agreed that the "existence" confidentiality language was unlawful and that the "outcome" language was lawful, but would also have found the "content" confidentiality requirement unlawful, reasoning that it could reasonably be read to bar employees from discussing the facts and circumstances underlying their disputes with coworkers. He also disagreed with the majority on Board access, arguing that the policy's repeated statements that arbitration is the exclusive and binding method for resolving all disputes, combined with the savings clause's lack of prominence, would lead a reasonable employee to view filing a Board charge as a futile preliminary step rather than a real avenue for relief.
Significant Cases Cited
California Commerce Club, Inc., 369 NLRB No. 106 (2020): Held that the Federal Arbitration Act shields arbitration confidentiality provisions that specify the rules governing the arbitration, but not provisions that extend confidentiality beyond the arbitration itself.
Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018): Held that employer arbitration agreements barring class or collective actions in any forum are enforceable under the Federal Arbitration Act.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current Board standard for evaluating whether a workplace rule unlawfully interferes with Section 7 rights, asking whether an employee could reasonably interpret the rule as coercive.
Anderson Enterprises, Inc. d/b/a Royal Motor Sales, 369 NLRB No. 70 (2020): Found that a sufficiently prominent savings clause preserving employees' right to file Board charges can render an arbitration agreement lawful despite broader language.
Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019): Held that the Federal Arbitration Act does not authorize arbitration agreements that restrict employees' access to the Board or its processes.
X Factor S2 LLC, 375 NLRB No. 23, 31-CA-323348 (Published Board Decision)
The Board affirmed an administrative law judge's finding that X Factor S2 LLC, a television production company, unlawfully discharged four members of its grip and electrical crew after they moved to unionize a nonunion production. The General Counsel's sole exception concerned the remedial notice, arguing the judge had inadvertently left out language requiring the company to offer reinstatement to the four workers even though the underlying order already included that requirement. The Board agreed the omission needed to be corrected and substituted a new notice to conform to the violations found.
No party excepted to the judge's underlying finding that the company terminated employees Noah Kelly, Andrew Choe, Sean Hunt, and Steven Miller because they engaged in, or were believed to have engaged in, protected concerted and union activity involving IATSE Local 728. That finding stood undisturbed, leaving the Board's review focused on the scope of the remedy and the notice's wording.
Consistent with Vibe Consulting, LLC, the Board modified the notice-posting provision. It also ordered the company to compensate the four discharged workers, in line with Thryv, Inc., for any direct or foreseeable pecuniary harms tied to their firings, including reasonable search-for-work and interim employment expenses, regardless of whether those expenses exceeded their interim earnings. Chairman Murphy and Member Mayer noted, as they had in Performance Plumbing, LLC and Lodi Volunteer Ambulance Rescue Squad, Inc., that they continue to question whether the expanded remedies adopted in Thryv are permissible under the NLRA and would be open to revisiting that precedent, but agreed to apply it in the absence of a three-member majority willing to overrule it.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Sets out the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected activity.
Thryv, Inc., 372 NLRB No. 22 (2022): Requires employers found to have committed unlawful discharges to compensate affected employees for direct or foreseeable pecuniary harms beyond traditional backpay.
Vibe Consulting, LLC, 374 NLRB No. 33 (2026): Provides the current standard notice-posting language the Board applied in modifying the remedial order here.
Performance Plumbing, LLC, 374 NLRB No. 48 (2026): Reflects certain Board members' stated reservations about the scope of the Thryv remedies while still applying that precedent.
Lodi Volunteer Ambulance Rescue Squad, Inc., 374 NLRB No. 26 (2026): Also notes openness to reconsidering Thryv in a future case absent a majority to overrule it.
Rhode Island CVS Pharmacy LLC, 375 NLRB No. 27, 01-CA-365034 (Published Board Decision)
The Board granted summary judgment against Rhode Island CVS Pharmacy LLC, finding that the company unlawfully refused to bargain with The Pharmacy Guild, International Association of Machinists and Aerospace Workers, AFL-CIO, after the union won certification elections at three Rhode Island store locations: Wakefield, Westerly, and Middletown.
The company had admitted it was not bargaining with the union but argued it had no obligation to do so, challenging the validity of the underlying certifications. It contended that the Westerly and Middletown bargaining units improperly included statutory supervisors, and that the Wakefield election should be set aside because of objectionable pro-union conduct by a supervisor. The Board rejected these arguments because all of the issues had already been raised, or could have been raised, in the earlier representation proceedings. Since the company did not present any newly discovered evidence or point to special circumstances justifying another look at those rulings, the Board held that it could not relitigate the same issues in this unfair labor practice case, citing Pittsburgh Plate Glass Co. v. NLRB.
The company also raised a series of constitutional defenses, including claims that the Board's structure violates separation of powers, that a hearing would violate due process and jury-trial rights, and that the Board lacks authority to decide those constitutional questions itself. The Board found these arguments were asserted without any supporting explanation or evidence and were therefore insufficient to block summary judgment.
Having found the company violated Section 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with the union since March 3, 2025, the Board ordered it to bargain on request with the union for all three units, to sign any agreement reached, and to post and distribute a notice to employees. The Board also adjusted the certification dates to reflect when the Regional Director actually issued each certification, and specified that the one-year certification period for bargaining will run from whenever the company begins bargaining in good faith, consistent with standard Board remedy practice.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): When an employer unlawfully refuses to bargain after a certification, the one-year certification period is measured from the date the employer actually begins bargaining in good faith, not from the certification date.
Frontier Hotel, 265 NLRB 343 (1982): The Board may take official notice of the record in a related representation proceeding when deciding a companion unfair labor practice case.
Sysco Central California, Inc., 371 NLRB No. 95 (2022): Bare, unsupported assertions in an answer or defense are insufficient to raise a litigable issue warranting denial of summary judgment.
Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58 (2018), enfd. sub nom. Operating Engineers Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020): Reaffirms that unsupported constitutional and procedural defenses do not require a hearing before granting summary judgment in a refusal-to-bargain case.
Autofit Inc., JD(SF)-42-26, 16-CA-355961 (ALJ Decision)
An administrative law judge has found that Autofit Inc. unlawfully fired a Houston employee weeks into her employment for discussing pay with a coworker, rejecting the auto parts company's claims that she was let go for stealing sales commissions and being a poor fit.
Daniela Irene Melendez was hired as an administrative assistant at Autofit's Houston location in September 2024 but initially worked in sales, as new hires typically did. Within her first few days on the job, she told a longtime coworker, identified in the decision only as Gabby, how much she was being paid. Gabby, who had worked at the company for nine years and had never earned that much, grew visibly upset and walked to the office of the company's Chief Logistics Officer to ask about the administrative assistant job and a raise. She was turned down. About two weeks later, Autofit terminated Melendez, telling her only that her position had been filled by someone else.
When Melendez later sought unemployment benefits, the company's administrative assistant, acting on the company's behalf in responding to a Texas Workforce Commission inquiry, gave a different account: Melendez was fired for a mix of reasons, including sharing sensitive information such as pay and general difficulties with coworkers. Autofit later argued at trial that Melendez had actually been fired for stealing commissions from two other salespeople and for personality conflicts, and it argued the administrative assistant lacked authority to speak for the company and had merely used ChatGPT to draft a response without real knowledge of the reasons for termination.
The judge rejected these arguments. She found the administrative assistant acted with the company's apparent authority both in carrying out the termination and in submitting the unemployment response, so her statements were properly attributed to Autofit. The judge also found much of the company's evidence not credible, including testimony from an assistant manager about the alleged commission thefts, which was inconsistent, uncorroborated, and appeared to shift over time as the case progressed. The company's Chief Logistics Officer, who made the termination decision, did not testify as a fact witness, and the judge drew an adverse inference from that absence.
Applying the Board's Wright Line framework, the judge concluded Autofit knew about Melendez's pay discussion and held animus toward it, pointing to the timing of the firing, the shifting and unsupported reasons offered for it, and the company's departure from its normal practice of having managers resolve sales disputes rather than treating them as terminable theft. The judge found the company's stated reasons for firing Melendez were pretextual and that it failed to show it would have fired her absent the protected conversation about pay. The judge separately concluded that under the Board's Burnup & Sims standard, the company could not justify the firing as a response to misconduct, because sharing pay information is protected activity, not misconduct.
The judge ordered Autofit to offer Melendez reinstatement, make her whole for lost earnings and other financial harms with interest, remove references to the discharge from her personnel file, and post a notice to employees at its Houston facility. The judge also rejected numerous affirmative defenses raised by the company, including claims that the Board's structure is unconstitutional and that the case was improperly delayed.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected activity.
Burnup & Sims, 379 U.S. 21 (1964): Held that discipline of an employee for alleged misconduct during protected activity is unlawful unless the employer proves the misconduct actually occurred.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Recognized that wages are a vital term and condition of employment central to protected concerted activity for mutual aid or protection.
Meyers Industries, 281 NLRB 882 (1986): Defined concerted activity as encompassing efforts by employees to initiate, induce, or prepare for group action, including bringing group complaints to management.
Cordua Restaurants, Inc. v. NLRB, 985 F.3d 415 (5th Cir. 2021): Explained how shifting or unsupported explanations for an adverse employment action can support a finding of pretext and unlawful motive.
Babson College, 01-RC-374712 (Regional Election Decision)
A regional director of the National Labor Relations Board has directed an election for a bargaining unit of police officers, community service officers, detectives, parking enforcement officers, community engagement officers and police sergeants at Babson College's campus police department, rejecting the employer's argument that the six patrol sergeants should be excluded as supervisors or managerial employees.
The American Coalition of Public Safety petitioned to represent the unit. Babson College argued the sergeants should be carved out because they assign work, discipline employees, responsibly direct staff, effectively recommend promotions, and adjust grievances, and separately because they hold managerial status. The regional director found the college failed to meet its burden on every one of these grounds.
On assignment, the decision explains that sergeants do not set officers' shift times, since scheduling runs through an annual seniority-based bid managed by the patrol lieutenant, and that mandatory overtime is governed by a seniority-based "force list" that leaves sergeants with only a routine, clerical role. The evidence also showed officers frequently chose their own patrol assignments, sometimes settling disputes among themselves by playing Rock-Paper-Scissors, undercutting any claim that sergeants exercised independent judgment in assigning duties. Isolated examples, such as a sergeant directing officers during a single incident or discretion described for responding to forced door alarms, were deemed discrete, ad hoc tasks rather than the kind of significant overall assignment that confers supervisory status under Oakwood Healthcare, Inc.
The decision similarly rejected the claim that sergeants "responsibly direct" other employees, finding no evidence that sergeants face real consequences when the officers they oversee perform poorly. On discipline, the ruling notes that the department's written policy is mere "paper authority," and that the one documented example of a verbal warning was actually drafted by a human resources manager, with the sergeants playing only an administrative role. The decision also found the department's disciplinary system does not qualify as a defined progressive system because it explicitly reserves the right to skip steps or impose maximum punishment for a first offense, and because witnesses could not identify consistent guidelines for escalating discipline.
On promotions, the regional director found that sergeants' role on interview panels and in submitting written recommendations does not amount to effective recommendation, since the police chief and deputy chief independently interview candidates and make the final decision themselves. On grievances, the decision concludes that sergeants' involvement in performance evaluations and informal problem-solving, such as helping resolve a minor complaint about a reorganized workspace, falls short of the kind of grievance adjustment required for supervisory status, and that secondary indicia like higher pay and timecard approval cannot establish supervisory status without evidence of at least one primary statutory authority. Finally, the decision found the sergeants' input on a departmental staffing policy did not amount to the kind of independent policy-making discretion required for managerial status under NLRB v. Yeshiva Univ.
The regional director accordingly directed a secret-ballot election among the petitioned-for unit, including the sergeants, to be held on August 26, 2026.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined the statutory terms "assign," "responsibly direct," and "independent judgment" used to determine supervisory status.
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Held that the party alleging supervisory status bears the burden of proving it.
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Held that job descriptions and other "paper authority" alone cannot establish actual supervisory authority.
Veolia Transportation Services, 363 NLRB 902 (2016): Held that disciplinary authority must lead to personnel action without independent investigation by upper management, and that warnings only count as discipline if they automatically trigger job-affecting consequences under a defined progressive system.
NLRB v. Yeshiva Univ., 444 U.S. 672 (1980): Established that managerial status requires taking or recommending discretionary actions that effectively control or implement employer policy.