Preferred Building Services, Inc. V. NLRB, 24-1384 (DC Circuit)
A federal appeals court has upheld a National Labor Relations Board ruling that a San Francisco-area janitorial company illegally fired workers who picketed over pay, harassment, and working conditions, rejecting the company's arguments that the picketing itself broke the law.
The case traces back to 2014, when janitors employed by Preferred Building Services and its subcontractor, Ortiz Janitorial Services, picketed outside buildings they cleaned to protest low wages, poor conditions, and sexual harassment. A local union helped organize the demonstrations. After the pickets, the janitorial companies fired several participating employees, and the union filed unfair labor practice charges. An administrative law judge sided with the workers, but the Board initially reversed, finding the picketing itself was unlawful "secondary" picketing aimed at pressuring neutral businesses rather than the employer. The Ninth Circuit disagreed and sent the case back, finding no evidence supported that conclusion. On remand, the Board reaffirmed that the companies had violated the NLRA by firing the workers, rejected the employers' defenses, and ordered remedies including reinstatement and expanded compensation for financial harms under the Board's Thryv framework.
On this second round of appeal, Preferred (Ortiz did not participate) raised three arguments, and the U.S. Court of Appeals for the District of Columbia Circuit rejected all of them. First, Preferred argued it had been wrongly blocked from presenting evidence at the original hearing about a later, more confrontational protest at a different building, which it claimed would prove the picketing had an unlawful secondary purpose. The court found no prejudice, noting the Board had actually accepted this evidence as true and still concluded it didn't establish that the earlier pickets targeted neutral parties, distinguishing the case from Service Employees International Union Local 525 (General Maintenance), where a union had directly targeted a building's tenants.
Second, Preferred argued the picketing was actually aimed at forcing recognition of the union or organizing employees, which would make it unlawful under a different provision of the NLRA. The court found substantial evidence supported the Board's finding otherwise, pointing to picket signs and leaflets directed at the public rather than employees, the absence of any demand for recognition, and chants and materials focused on wages and working conditions rather than union organizing.
Third, Preferred challenged the Board's expanded remedy under Thryv, Inc., which requires compensating fired workers for job-search and other out-of-pocket costs regardless of interim earnings. The court held it lacked jurisdiction to consider this argument because Preferred never raised it before the Board itself, and rejected Preferred's claim that objecting would have been futile.
The court denied Preferred's petition for review and granted the Board's request to enforce its order.
Significant Cases Cited
Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950): Established the four-factor test the Board uses to distinguish lawful primary picketing from unlawful secondary picketing at shared work sites.
Service Employees International Union Local 525 (General Maintenance), 329 NLRB 638 (1999): Found unlawful secondary picketing where a union directly targeted a building's tenants and owners outside normal working hours.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's standard remedy for unlawful discharges to include compensation for direct or foreseeable financial harms beyond lost wages.
HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016): Held that a party must file a motion for reconsideration with the Board to preserve objections to issues the Board decided on its own, and that a Board majority's rejection of a dissent's arguments does not excuse this requirement.
Service Employees International Union Local 87 v. NLRB, 995 F.3d 1032 (9th Cir. 2021): The Ninth Circuit's earlier ruling in this same dispute finding no substantial evidence that the janitors' picketing had an unlawful secondary object.
Clear Choice Cannabis, 19-RC-389220 (Regional Election Decision)
A Regional Director for NLRB Region 19 resolved a representation petition filed by United Food and Commercial Workers Local 367 seeking to represent workers at a Tacoma, Washington cannabis dispensary operated by Clear Choice Cannabis. The parties disputed whether two job classifications, shift leads and front-of-house employees, belonged in the bargaining unit. The Regional Director found that shift leads are not supervisors and should be included, but that front-of-house employees are guards and must be excluded.
Shift Leads
The employer argued that shift leads hold supervisory authority under Section 2(11) of the NLRA in several categories, including hiring, discipline, assignment, reward, scheduling, and responsible direction of other employees. The decision walked through each category and found the evidence insufficient in every instance. Shift leads' hiring and promotion input amounted only to informal, personal recommendations that the sales manager did not treat as controlling. Their reported ability to order transfers was based on a single documented example, too infrequent to establish authority, consistent with the Board's reasoning in Robert Greenspan, D.D.S., P.C. Testimony that shift leads could discipline employees or send them home early was contradicted by the shift lead's own testimony, and under Avante at Wilson, Inc., that firsthand testimony was given priority. Directing budtenders to specific tasks or tills was found to be routine, non-supervisory direction rather than significant "assignment" as defined in Oakwood Healthcare, Inc. Discretionary bonus authority was deemed too infrequent and too closely reviewed by the sales manager to qualify as independent judgment. Because the employer, as the party asserting supervisory status, bears the burden of proof and any evidentiary gaps are held against it, the Regional Director concluded shift leads are ordinary employees who should be included in the unit.
Front of House Employees
The front-of-house classification presented a different question: whether these employees are statutory guards under Section 9(b)(3), which bars guards from being combined with non-guard employees in the same bargaining unit. The decision applied the guard factors set out in Boeing Co., including whether employees enforce rules protecting property or safety, monitor security systems, and report or respond to infractions. Although front-of-house employees lack uniforms, weapons, keys, or specialized security training, the decision found those features are not required for guard status. What mattered was that these employees are stationed at the entrance to check IDs, monitor security camera feeds, use coded radio communications to report drug use, disturbances, and emergencies, and periodically intervene to remove unruly customers. Citing Rhode Island Hospital, the decision explained that employees who primarily observe and report security issues, rather than physically confronting violators, can still qualify as guards when that function is a primary rather than incidental part of the job. Because monitoring and reporting security matters was found to be more than incidental to the front-of-house role, those employees were excluded from the unit as guards.
The Regional Director directed an election among the roughly 27 employees found appropriate for the unit, to be held September 11, 2026, at the employer's Tacoma facility.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the framework for analyzing supervisory authority under Section 2(11), including definitions of independent judgment, assignment, and responsible direction.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Held that possessing any one of the statutory supervisory functions, exercised with independent judgment, is sufficient to confer supervisory status.
Boeing Co., 328 NLRB 128 (1999): Set out the factors used to determine whether an employee qualifies as a statutory guard under Section 9(b)(3).
Rhode Island Hospital, 313 NLRB 343 (1993): Held that employees who primarily observe and report security infractions, rather than directly confronting violators, can still be guards if that function is a primary job responsibility.
Avante at Wilson, Inc., 348 NLRB 1056 (2006): Held that when testimony conflicts on supervisory status, the Board gives priority to testimony from the person actually occupying the disputed role who denies having supervisory authority.
Wyndham Vacation Ownership, Inc., 05-RD-385547 (Unpublished Board Decision)
The Board denied an employer's request for review of a Regional Director's decision to hold a decertification election petition in abeyance based on a union's request to block it. The Board found the request raised no substantial issues warranting review, concluding that the Regional Director had acted consistently with the Board's blocking-charge rule, Section 103.20 of its Rules and Regulations.
In a footnote, the Board majority clarified that it was not relying on a particular pending unfair labor practice charge as a basis for the blocking request, since nothing in the record showed the union had asked the Regional Director to use that charge to block the election. Member Prouty would have relied on that charge as additional support for blocking the petition, based on other pending charges.
Chairman Murphy and Member Mayer wrote separately to note that they were applying existing blocking-charge policy without expressing a view on whether that policy is correctly decided, citing institutional reasons for their restraint. Member Mayer added that the Board's current procedures require regional directors to continually reassess whether a charge should keep blocking a petition as processing continues, citing the Casehandling Manual and Section 103.20(e) of the Board's rules, which allow a regional director to resume processing a petition if special circumstances arise or if employee free choice becomes possible despite a pending charge. Member Mayer also suggested that the Board should examine whether its blocking-charge policy adequately weighs how much time has passed since a petition was filed, and urged that unfair labor practice cases blocking an election be given priority in processing.
Stericycle, Inc., 19-RC-390296 (Unpublished Board Decision)
The Board denied the Employer's request for review of a Regional Director's decision directing a mail-ballot election, finding no substantial issues warranting review. It also denied as moot the Employer's request to stay the election through ballot impoundment.
In a footnote, the Board addressed the standard governing a Regional Director's choice between manual and mail-ballot elections. It reiterated that while Regional Directors have broad discretion over election methods, a presumption favors manual elections over mail-ballot elections. That presumption can be overcome under circumstances set out in San Diego Gas & Electric, and a Regional Director's discretion, while not unfettered, must be exercised within the guidelines from that case and Aspirus Keweenaw. Those guidelines direct consideration of the parties' preferences, voters' ability to read and understand mail ballots, availability of employee addresses, and efficient use of Board resources.
The Board found that although the Regional Director did not explicitly walk through each of those factors, he had directed a mail-ballot election because eligible voters were geographically scattered due to a wide service area and varying shift times. The Board agreed that the voters were indeed scattered and that most of the discretionary factors favored mail balloting, concluding the Regional Director did not abuse his discretion.
Member Prouty added separately that he would be open to reconsidering the San Diego Gas & Electric standard in a future case and would favor an approach more accepting of mail balloting generally.
Significant Cases Cited
San Diego Gas & Electric, 325 NLRB 1143 (1998): Set out the guidelines and enumerated circumstances under which a Regional Director may depart from the presumption favoring manual elections in favor of mail-ballot elections.
Aspirus Keweenaw, 370 NLRB No. 45 (2020): Held that Regional Directors have broad but not unfettered discretion over election method, subject to the San Diego Gas guidelines, and that a presumption favors manual over mail-ballot elections.