08/18/2026: Talking Pay, Gissel Threats, Racial Info Requests
An application of the Atlantic Opera independent contractor test.
Shell Pipeline Co., LP, JD(SF)-15-26, 16-CA-342028 (ALJ Decision)
An administrative law judge found that Shell Pipeline Co., Shell Chemical, and Pennzoil-Quaker State Company (doing business as SOPUS Products) violated the NLRA by refusing to give the United Steelworkers individualized racial and ethnic data on unit employees, even though the companies had routinely provided that same information for roughly a decade.
The dispute arose after each employer, starting in mid-2024, began withholding "minority status" data on an individualized basis, offering only aggregated figures instead. The companies pointed to the European Union's General Data Protection Regulation, an internal company policy they never produced, and a new "Self ID" diversity program as reasons for the change. At the hearing, a Shell manager conceded that none of the U.S. entities were actually subject to the EU privacy law, and the judge found the companies' invocation of Self ID inconsistent since they continued to hand over other Self ID-covered data, like gender, while withholding race and ethnicity figures.
The judge held that because each collective-bargaining agreement contained a nondiscrimination clause, the union had a duty to police that provision, making individualized minority data presumptively relevant under longstanding Board precedent. He also found the union proved actual relevance, crediting testimony from union representative Ben Lilienfeld about a grievance in which a Black warehouse employee alleged his Hispanic supervisor favored Hispanic coworkers. Because everyone in that unit belonged to a minority group, aggregated numbers could not have revealed whether race played a role, a point the employers' own witness ultimately conceded.
The judge rejected the companies' confidentiality defense under Detroit Edison v. NLRB, finding they never established a substantial confidentiality interest, particularly given their history of freely sharing the data, their admission that it is not covered by any privacy law that applies to them, and evidence that they determine employees' ethnicity through visual observation when workers decline to self-identify. He also rejected the companies' argument that the proceeding was invalid due to the constitutional structure of the Board, noting the employers showed no harm from the removal protections at issue. He concluded that all three companies violated Section 8(a)(5) and (1) and ordered them to furnish the withheld data and post remedial notices.
Significant Cases Cited
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Employers must furnish information potentially relevant to a union's duties as bargaining representative, including deciding whether to pursue a grievance.
Detroit Edison v. NLRB, 440 U.S. 301 (1979): Courts balance an employer's substantial confidentiality interests against a union's need for requested information.
Lucky Markets, 251 NLRB 836 (1980): Race data on unit employees is presumptively relevant where the CBA contains a nondiscrimination clause and must be produced without special safeguards.
Westinghouse Electric Corp., 239 NLRB 106 (1978), enforced, Electrical Workers IBEW v. NLRB, 648 F.2d 18 (D.C. Cir. 1980): An employer must supply minority status data needed to police a contractual nondiscrimination provision.
Frito-Lay, Inc., 333 NLRB 1296 (2001): An employer was required to produce race data even for employees outside the bargaining unit.
Raven Clinical Research, Inc., JD-53-26, 09-CA-361350 (ALJ Decision)
An administrative law judge has ruled that a clinical research company violated the NLRA when it fired a worker after he called two colleagues to ask whether they, too, had been paid late.
The case centered on David Smith, who began working remotely for Raven Clinical Research in August 2024 as a contractor earning $50 an hour. Raven's CEO, Dell Hines, terminated Smith's relationship with the company on March 3, 2025, days after Smith phoned coworkers Traci Bryant and Joy Newby to ask if they had received their pay on time. Neither Bryant nor Newby testified at trial, so the judge declined to credit secondhand accounts of what Smith allegedly said to them.
Before reaching the question of protected activity, the judge had to decide whether Smith counted as an employee under the NLRA at all, since independent contractors fall outside the statute's protections. He found that Raven and Smith had formed an employment contract no later than February 5, 2025, when Smith signed a retention bonus letter that repeatedly referred to his “employment” and required him to remain “actively employed” through April 2025. The judge noted that Raven had a practice of converting contractors to W-2 employees, as it had done for another worker, Traci Bryant, and found no basis for treating a worker under an employment contract as an independent contractor. As an alternative, applying the common-law factors from the Restatement of Agency under the Board's test in The Atlanta Opera, the judge again found Smith was an employee by February 5, pointing to the open-ended nature of his engagement, his role performing Raven's core business function, and a noncompete provision that effectively barred him from other clinical research work.
Turning to the merits, the judge found that Smith's calls to Bryant and Newby were an effort to spur group action over a shared workplace concern, which qualifies as protected concerted activity even without an explicit call for the two to join him in raising the issue with management. He found a direct link between those calls and Smith's termination, relying on the timing of Hines's termination letter and Hines's own testimony, and discredited Hines's claim that he had already decided to fire Smith before learning of the calls. The judge also noted that even if Smith's conduct fell short of concerted activity, firing him to prevent future organizing among coworkers would independently violate the Act. He rejected Raven's argument that the complaint's narrower wording barred a finding on this theory, concluding the issue was closely related to the charge and had been fully litigated.
The judge ordered Raven to reinstate Smith, make him whole for lost earnings and benefits including any unpaid retention bonus, cover his search-for-work and interim employment expenses, compensate him for adverse tax consequences of a lump-sum award, and post a notice to employees.
Significant Cases Cited
The Atlanta Opera, 372 NLRB No. 95 (2023): Set the current Board standard for distinguishing employees from independent contractors, requiring assessment of all common-law agency factors without giving controlling weight to entrepreneurial opportunity.
SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019): Prior standard emphasizing entrepreneurial opportunity in the independent-contractor analysis, later overruled by The Atlanta Opera.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework requiring the General Counsel to show protected activity was a motivating factor in an adverse action, after which the employer must prove it would have acted the same way regardless.
Myers Industries (Myers I), 268 NLRB 493 (1984): Held that concerted activity under Section 7 must be engaged in with or on the authority of other employees, though a single employee seeking to initiate group action also qualifies.
Pergament United Sales, 296 NLRB 333 (1989): Held the Board may find and remedy a violation not specifically alleged in the complaint if the issue is closely connected to the complaint's subject matter and was fully litigated.
Asante D/B/a Asante Rogue Regional Medical Center, JD-52-26, 19-CA-316937 (ALJ Decision)
An administrative law judge found that a hospital operator committed several unfair labor practices during a union organizing campaign at its Medford, Oregon facility, while dismissing other allegations for lack of proof.
The case arose after the Oregon Nurses Association launched a 2023 campaign to organize surgical technologists, respiratory therapists, imaging staff, and other technical employees. The hospital responded by hiring outside labor consultants who held more than 100 meetings with employees, some mandatory, in the weeks before the election.
The judge credited testimony that consultant Arthur Wentworth told employees at an April meeting that if they voted for the union, the hospital would no longer be obligated to give them their annual merit-based wage increases. Relying on Famous Barr and DHL Express, the judge found this unlawful because an employer facing an organizing drive must continue granting benefits as it would have absent the campaign, and the discretionary nature of the merit reviews did not excuse withholding them. A separate claim that Wentworth unlawfully threatened employees with excessive union fines for crossing a picket line was dismissed, since the Union's own bylaws authorized such fines and the prediction addressed consequences outside the employer's control under NLRB v. Gissel Packing Co.
A claim that consultant Evelyn Fragoso told employees their pay would be "frozen" during negotiations was dismissed after the judge found her denial more credible than an employee's imprecise recollection. But a similar claim against a consultant identified only as Katrina was sustained: the judge found she told employees there was "no way" to get a raise except through a contract, a statement that implied the employer would simply refuse any other increase and thus crossed from lawful prediction into an unlawful threat.
The judge also found that Wentworth violated the Act when, after employees raised concerns about health insurance, he told them it would be unlikely the union could change their coverage, without pointing to any objective facts supporting that prediction. That amounted to an unlawful suggestion that bargaining would be futile. A related claim that Wentworth suggested respiratory therapists would never gain more professional "recognition" through a union was dismissed because that topic was not a mandatory subject of bargaining.
Finally, the judge found that supervisor Tucker Stennett unlawfully interrogated respiratory therapist Amy Palazzolo when he questioned her one-on-one about why she skipped a mandatory anti-union meeting, whether she'd be comfortable being paid the same as new hires, whether she had prior union experience, and what she hoped to gain from the union, all without explaining any legitimate purpose or offering assurances against retaliation.
The judge ordered the hospital to cease and desist from these practices and to post a notice to employees at its Medford facility.
Significant Cases Cited
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Held that employers may lawfully predict the effects of unionization only if the predictions rest on objective facts and address consequences beyond the employer's control; otherwise the statement is an unlawful threat.
DHL Express, Inc., 355 NLRB 1399 (2010): Held that an employer's statement that wages will be frozen until a collective-bargaining agreement is signed violates the NLRA when the employer has a past practice of granting periodic wage increases.
Rossmore House, 269 NLRB 1176 (1984): Set out the totality-of-circumstances factors used to determine whether an employer's questioning of an employee about union sympathies constitutes unlawful interrogation.
Famous Barr, 174 NLRB 770 (1969): Held that an employer confronted with a union campaign must grant or withhold benefits as it would if the union were not in the picture.
Jensen Enterprises, Inc., 339 NLRB 877 (2003): Found a violation where an employer told employees their wages would be frozen or put on hold during contract negotiations.