American Backflow & Fire Prevention, Inc., 375 NLRB No. 31, 13-CA-285856 (Published Board Decision)
The Board affirmed an administrative law judge’s findings that a fire and plumbing services contractor committed a lengthy string of violations against two building trades unions that had organized its workforce, and it ordered the company to bargain, offer a job to a rejected applicant, and make employees whole for lost pay.
The case grew out of a 2021 union election victory at the company’s Wauconda, Illinois facility. After the vote, the employer went on what the judge called a sustained campaign to undermine the unions. It refused to consider hiring several known union supporters who applied for open jobs, including one man who was told he was “highly qualified” but would not be hired. It posted a sign showing the word “union” with a red slash through it on its main entrance, changed its website to say it was not hiring for union positions shortly after unfair labor practice charges were filed, and stopped accepting paper job applications from walk-in applicants. It also stopped conducting annual performance reviews and stopped issuing the wage increases that normally followed them, and it shifted a large share of bargaining-unit work to managers and non-union employees rather than replacing workers who left, causing the unit to shrink from 14 employees to five. The Board found all of this violated the NLRA’s protections against discrimination based on union activity and its bargaining obligations.
The Board also found that when the company withdrew recognition from the unions in March 2023, relying on decertification letters signed by remaining employees, it could not lawfully do so because its own unfair labor practices had tainted those letters. Because the misconduct touched directly on pay and job security, the kind of issues that led employees to unionize in the first place, the Board concluded the disaffection could not be treated as genuine and ordered the company to resume bargaining.
Separately, the Board flagged conduct by the company’s non-attorney representative, who had filed an exceptions brief containing citations to hearing testimony that did not exist and citations to two Board decisions that do not exist at all. The Board said this pattern suggested the filing may have been generated in part by artificial intelligence without verification, and it referred the matter to the Board’s Investigating Officer for possible disciplinary action, citing similar concerns raised recently by federal courts about fabricated legal citations in filings.
Significant Cases Cited
FES, 331 NLRB 9 (2000): Set the framework for proving discriminatory refusal-to-hire and refusal-to-consider claims, requiring proof the employer was hiring, the applicant was qualified, and animus contributed to the decision.
Toering Electric Co., 351 NLRB 225 (2007): Held that when an employer contests an applicant’s genuine interest in employment, the General Counsel bears the burden of proving the applicant was truly seeking a job.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing claims that an employer took adverse action because of protected union activity.
NLRB v. Katz, 369 U.S. 736 (1962): Held that an employer violates the duty to bargain by unilaterally changing mandatory subjects of bargaining, including merit wage increases, without notice to the union.
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Held that an employer may withdraw recognition from a union only if it has objective evidence the union has actually lost majority support.
SKBAR, LLC D/B/a Smoothie King, 375 NLRB No. 29, 10-CA-367860 (Published Board Decision)
The Board granted the General Counsel's motion for default judgment against a Smoothie King franchise in Statesboro, Georgia, after the company failed to file an answer to a complaint alleging multiple violations of Section 8(a)(1). Because the company did not respond despite being properly served and warned that default judgment would follow, the Board deemed the complaint's allegations admitted as true. The Board noted that a respondent's lack of legal representation does not by itself excuse a failure to answer, citing Patrician Assisted Living Facility and Sage Professional Painting Co.
Based on the admitted facts, the Board found that the company maintained an unlawful rule barring employees from discussing pay with coworkers and that a manager told employees about this rule during a meeting. It also found that during a store-wide meeting, a general manager threatened employees with discharge and with removal from the meeting for asking questions about pay rates and tip distribution, and reiterated the no-pay-discussion rule. The Board further found that employee Luke David Blevins was fired the same day for raising these concerns and asking these questions, activity protected as concerted action for mutual aid and protection, and that the company fired him specifically because of that activity and to discourage similar activity by other employees.
The Board ordered the company to cease these practices, rescind the pay-discussion rule, offer Blevins reinstatement, and make him whole for lost earnings and other pecuniary harms, including job-search and interim employment expenses, under the framework set out in Thryv, Inc. Backpay is to include compensation for adverse tax consequences and interest compounded daily, consistent with Kentucky River Medical Center. Chairman Murphy and Member Mayer noted they were not expressing a view on whether Thryv's expanded remedies are lawful but agreed to apply existing precedent absent a majority to overturn it. The company must also post a notice to employees and remove references to the unlawful discharge from its files.
Significant Cases Cited
Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Pro se status alone does not establish good cause for failing to file an answer to a complaint.
Sage Professional Painting Co., 338 NLRB 1068 (2003): Reaffirmed that lack of counsel does not excuse a respondent's failure to answer a complaint.
Thryv, Inc., 372 NLRB No. 22 (2022): Established that make-whole remedies must include compensation for direct or foreseeable pecuniary harms beyond traditional backpay.
Kentucky River Medical Center, 356 NLRB 6 (2010): Set the standard requiring interest on backpay awards to be compounded daily.
New Horizons, 283 NLRB 1173 (1987): Established the interest rate methodology used in calculating backpay awards.
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 repeatedly failed to answer a consolidated complaint accusing it of numerous violations tied to a union organizing campaign in Danville, Virginia.
The company argued it had good cause for missing the deadline because Vincent Brown Sr., the person solely responsible for handling legal correspondence, had undergone surgeries and a lengthy recovery. The Board rejected that excuse, noting Brown remained in contact with his attorney and the Region during the relevant period and even filed an affidavit in an unrelated federal court case saying he was prepared to represent himself in that litigation. The Board also pointed out that the company never asked for an extension before the deadline passed and waited over 50 days to seek permission to file late. Citing prior precedent, the Board held that an employer cannot avoid its legal obligations simply because the one employee tasked with them faced personal difficulties.
Because the answer was rejected, the complaint's allegations were deemed admitted. Those allegations included threats to discharge employees for raising overtime concerns, a ban on wearing union apparel, statements that unionizing would be futile, surveillance impressions, promises of improved benefits to discourage union support, coercive interrogation, and the discharge or layoff of seven employees because of their union activity. The Board did, however, decline to find that the company's statement calling the Union "good for nothing" violated the Act, reasoning that employers may criticize a union without violating the NLRA as long as the criticism doesn't threaten employees or interfere with their rights.
Given the severity and scope of the violations, including conduct by a high-ranking supervisor that reached most of the bargaining unit and showed a likelihood of repeat violations, the Board found that traditional remedies like a rerun election would not adequately protect employees' expressed preference for union representation. It therefore issued a bargaining order requiring the company to recognize and bargain with the union.
The remedy includes reinstatement and back pay with interest for the affected employees, compensation for search-for-work and other pecuniary harms, tax-consequence compensation for lump-sum backpay, and posting, mailing, and in-person reading of a notice to employees in both English and Spanish given the company's use of interpreters for its workforce.
Significant Cases Cited
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Establishes that a bargaining order may issue instead of a rerun election when an employer's unfair labor practices are so serious that they undermine the possibility of a fair election.
Day & Zimmerman Services, 325 NLRB 1046 (1998): Holds that a respondent's failure to promptly request an extension of time to answer is a factor showing lack of good cause for a late filing.
Children's Center for Behavioral Development, 347 NLRB 35 (2006): Holds that an employer may criticize or disparage a union without violating the NLRA so long as the statement doesn't threaten employees or interfere with their rights.
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded backpay remedies to include compensation for other direct or foreseeable pecuniary harms beyond lost wages.
Stevens Creek Chrysler Jeep Dodge, 357 NLRB 633 (2011): Found a Gissel bargaining order appropriate where unlawful discharges were accompanied by threats of job loss and wage-related promises.
International Association of Sheet Metal, Air, Rail and Transportation Workers Local Union No. 33 Pa, JD-55-26, 06-CB-354820 (ALJ Decision)
An administrative law judge ruled that a sheet metal workers' local violated the NLRA when its business representative told a nonmember employee, by text message, that the union would not refer nonmembers out for jobs.
The case arose after Ryan Bartelt, a nonmember who had resigned his membership and become a Beck objector, sought a referral to a construction project at a Ford Motor Company plant in Ohio through his union's district referral system. When he contacted the union, business representative Pat Allen texted him that the union would not refer nonmembers for jobs. Bartelt filed a charge alleging this violated Section 8(b)(1)(A) of the NLRA, which bars unions from restraining or coercing employees in the exercise of their organizing rights.
The central question was whether the union operated an exclusive referral system, since a union with such a system owes a duty of fair representation to all employees who use it, including nonmembers, and cannot favor members over nonmembers. A union running a nonexclusive system owes no such duty because it does not control workers' access to jobs.
The judge found that the union's collective-bargaining agreements with two contractor associations contained mandatory language requiring signatory employers to seek workers through the union's referral system first, before hiring elsewhere, which established an exclusive arrangement on its face. The union argued that in practice, employers and members often bypassed the referral system without consequence, making it effectively nonexclusive. The judge rejected this, citing Board precedent holding that inconsistent enforcement or informal exceptions do not override clear contractual language creating exclusivity, particularly since the referral provisions had gone unchanged and unchallenged through recent contract renewals. The judge also pointed to a specific practice on the Ford project, where a contractor consistently obtained sheet metal workers through the district's referral system over two and a half years, reinforcing the finding of exclusivity.
Because the referral system was exclusive, the union owed nonmembers like Bartelt a duty of fair representation, and Allen's text message announcing a blanket refusal to refer nonmembers violated that duty. The judge ordered the union to notify Bartelt in writing that it would not discriminate based on membership status in making referrals and to post a notice to members describing the violation and their rights under the Act.
Significant Cases Cited
Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989): A union operating an exclusive referral system owes a duty of fair representation to all employees who use it, regardless of membership status.
Vaca v. Sipes, 386 U.S. 171 (1967): The duty of fair representation prohibits a union from acting in an arbitrary, discriminatory, or bad-faith manner.
Bricklayers Local 8, 235 NLRB 1001 (1978): Inconsistent practices by a few employers do not vary or negate the clear and unambiguous terms of a collective-bargaining agreement establishing an exclusive referral arrangement.
Boston Cement Masons and Asphalt Layers Union No. 534, 235 NLRB 826 (1978): A union's failure to strictly enforce a referral provision in the past does not mean it waived its contractual right to an exclusive referral system.
IBEW Local 11, 270 NLRB 424 (1984): Where a referral agreement's terms clearly establish an exclusive arrangement, the inquiry ends and extrinsic evidence cannot be used to vary those terms.
Nexstar Media Group, Inc., 14-RM-374657 (Unpublished Board Decision)
The Board declined to review a regional director's decision certifying the International Brotherhood of Electrical Workers, Local No. 4, as the bargaining representative following an election, finding that the employer's request raised no substantial issues warranting review.
The employer had argued that the election should be set aside based on the Board's holding in Amazon.com Services, an unfair labor practice case. Chairman Murphy and Member Mayer rejected that argument, relying on the reasoning set out in Satellite Healthcare. Because neither of them had participated in the Amazon.com Services decision, they noted they were expressing no view on whether that case was correctly decided.
Significant Cases Cited
Satellite Healthcare, 374 NLRB No. 39 (2026): Provided the reasoning relied upon to reject the employer's argument for setting aside the election.
Amazon.com Services, 373 NLRB No. 136 (2024): An unfair labor practice decision the employer invoked to challenge the validity of the election, which the Board found inapplicable here.