Altorfer Inc., 375 NLRB No. 32, 25-CA-327736 (Published Board Decision)
The Board affirmed an administrative law judge's finding that a construction equipment repair company violated the NLRA when a supervisor interrogated an employee about his ties to a rival union, but agreed that the company lawfully terminated the same employee for unrelated performance issues.
The case involved a field service technician who worked for Altorfer Inc. while remaining a member of the International Union of Operating Engineers, Local 150, even though the bargaining unit at his location was represented by Local 399. In August 2023, a Local 150 representative visited the employee's job site, and a coworker later reported the visit to management. In an October 2023 meeting that began as a discussion about scheduling communication problems, the employee's supervisor asked him whether he had been in contact with other unions on company time, why he was still involved with Local 150 rather than Local 399, and whether he had taken steps to withdraw from Local 150.
The judge found that this line of questioning amounted to unlawful interrogation under Section 8(a)(1), reasoning that it came from the employee's direct supervisor in the presence of the store manager, was aimed at pressuring the employee to sever ties with Local 150, and occurred without meaningful support from a union steward familiar with the situation. Applying the Board's standard totality of the circumstances test, the judge concluded the questioning had a reasonable tendency to coerce the employee in exercising his organizing rights.
On the termination claim, the General Counsel argued the company fired the employee days later because of his Local 150 activity. The judge found that the General Counsel made an initial showing of discrimination given the company's knowledge of the union activity and the animus reflected in the unlawful interrogation, but concluded the company proved it would have terminated the employee anyway. The employee had ongoing friction with his supervisor over job assignments dating back to before the company learned of his Local 150 involvement, and the timing of his discharge coincided with the scheduled end of his 120-day probationary period rather than with any protected activity. The judge rejected arguments that the company's stated reasons were pretextual, noting there was no established practice of issuing formal discipline notices to probationary employees before termination.
The Board adopted the judge's rulings and conclusions with minor modifications to the recommended order and notice language, including broadening the order to prohibit coercive interrogation about the union activities of other employees as well as the interrogated employee himself.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for evaluating claims that an employer took adverse action against an employee motivated by union or protected activity.
Rossmore House, 269 NLRB 1176 (1984): Establishes the totality of the circumstances test for determining whether an employer's questioning of an employee about union activity constitutes unlawful interrogation.
Garten Trucking LC, 373 NLRB No. 94 (2024): Reaffirms the specific factors used to assess whether an interrogation was coercive, including the identity of the questioner and the nature of the information sought.
Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Holds that the test for whether a statement violates Section 8(a)(1) is whether it has a reasonable tendency to coerce employees, regardless of intent.
Electrolux Home Products, 368 NLRB No. 34 (2019): Explains that a pretextual justification for an adverse action can support, but does not compel, an inference of discriminatory motive.
BR Management Services, JD(SF)-16-26, 19-CA-352007 (ALJ Decision)
An administrative law judge has ruled that a military food service contractor unlawfully suspended and fired a cook after she asked for a union representative during a confrontation with her supervisor.
Nicole Benjamin worked as a baker and cook for B.R. Management Services at the Olympic Dining Facility on Joint Base Lewis-McChord, a facility the company staffed under a subcontract with Global Connections to Employment. In October 2024, her supervisor and the company's co-owner, Dominica Quitevis, confronted her at work over a text exchange about dirty ovens. When Quitevis insisted on speaking with her immediately, Benjamin said she was uncomfortable continuing the conversation without a union representative present because of Quitevis's aggressive manner. Quitevis sent Benjamin home, and days later, during a call with a union representative, fired her for insubordination, citing among other things her refusal to talk without a union representative.
The judge found that Benjamin had a reasonable, objectively supported belief that the discussion with Quitevis could lead to discipline, entitling her to request a union representative under the Weingarten line of cases. Because Quitevis herself said during the October 8 call that Benjamin's termination was based in part on her insistence on having a representative present, the judge found direct evidence of unlawful motive. B.R. Management's owner testified that Quitevis merely wanted to relay information rather than discipline Benjamin, but the judge held that the company's subjective intent does not matter under the objective Weingarten standard, and the company offered no evidence that it would have fired Benjamin regardless of her protected conduct.
The judge concluded that the suspension and discharge violated Sections 8(a)(1) and (3) of the NLRA and ordered the company to reinstate Benjamin, make her whole for lost pay and other financial harms, remove references to the unlawful actions from her file, and post a notice to employees.
Significant Cases Cited
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Established that Section 7 of the NLRA guarantees an employee's right to have a union representative present at an investigatory interview when the employee reasonably believes discipline could result.
Wright Line, 251 NLRB 1083 (1980): Set the burden-shifting framework for analyzing claims that an employer took adverse action against an employee motivated by protected activity.
Wal-Mart Stores, Inc., 351 NLRB 130 (2007): Held that the General Counsel must first show protected activity was a motivating factor in the employer's action before the burden shifts to the employer.
Verizon California, Inc., 364 NLRB 1008 (2016): Held that a supervisor's subjective intent is irrelevant to the Weingarten analysis, which turns instead on objective evidence of how a reasonable employee would perceive the situation.
Wendt Corp. v. NLRB, 26 F.4th 1002 (D.C. Cir. 2022): Found that an employee reasonably believed he might face discipline based on factors like being questioned shortly after an incident and a supervisor's hostile demeanor.
International Longshoremen's Association, Local 1526 (Florida Stevedoring), JD-58-26, 12-CB-362739 (ALJ Decision)
An administrative law judge found that a longshore union violated its duty of fair representation when it disciplined a hiring hall member without giving him proper notice of the charges against him.
Melvin Bray Jr., a longshoreman without seniority at Port Everglades, was involved in two workplace incidents in December 2024 and January 2025. In the first, his luggage cart bumped the union president, Jonnie Dixon, while Dixon was speaking with other workers, and Bray reacted by cursing as he walked away. In the second, Bray got into a heated exchange with a coworker's brother after raising concerns about a leaking cargo box, with both men making threatening remarks. Grievances were filed against Bray over both incidents, but he was never given written notice of the charges or the specific union rules he allegedly violated, as required by the union's bylaws. He learned of the first charge only when he showed up to the disciplinary hearing before the Labor Relations Committee, and he was not represented at that hearing.
The committee suspended Bray from the hiring hall for 90 days combined and ordered him to complete 52 hours of anger management classes, a penalty far more severe than the union had imposed on members in comparable cases, where offenders typically received 14- to 30-day suspensions and 16-hour classes accompanied by proper written notice.
The judge concluded that the union's failure to timely notify Bray of the charges, its reliance on uncorroborated hearsay for one of the grievances, and the resulting deprivation of Bray's ability to defend himself amounted to arbitrary, discriminatory, and bad-faith conduct in violation of Section 8(b)(1)(A) of the NLRA. The judge ordered the union to expunge Bray's suspension from its records, make him whole for lost wages and benefits with interest, and post a notice to members describing the violation.
Significant Cases Cited
Vaca v. Sipes, 386 U.S. 171 (1967): Established that a union breaches its duty of fair representation when its conduct toward a member is arbitrary, discriminatory, or in bad faith.
Breininger v. Sheet Metal Workers Intern. Ass'n Local Union No. 6, 493 U.S. 67 (1989): Recognized that a union's duty of fair representation is heightened in the operation of an exclusive hiring hall.
Operating Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB 681 (1973): Held that when a union prevents an employee from being hired, a presumption arises that its action encourages union membership, unless shown necessary to effective representation.
Stage Employees IATSE Local 720 (AVW Audio Visual), 332 NLRB 1 (2000): Held that arbitrary conduct requires more than a showing of poor judgment; the union's actions must fall outside a wide range of reasonableness to the point of irrationality.
Boilermakers Local 374 (Combustion Engineering), 284 NLRB 1382 (1987): Required unions operating hiring halls to do so in a fair and impartial manner.
Go-Mart, Inc., JD-57-26, 09-CA-365946 (ALJ Decision)
An administrative law judge ruled that a West Virginia gas station and convenience store chain, Go-Mart, unlawfully disciplined a deli clerk for discussing her wages with coworkers, then effectively pushed her out of her job in retaliation.
The clerk, Melissa Saylor, had been juggling a second job after her partner lost his own. In April 2025, a division manager offered her a promotion to deli manager along with a $15-an-hour raise, up from her $11.20 hourly wage, as an incentive to give up her second job. Saylor accepted and mentioned the offer and pay rate to two coworkers, including the shift manager, who grew upset because she earned less than what Saylor was being offered. The next day, the store manager called Saylor into a closed-door meeting, told her the company had a policy against discussing wages, asked who else she had talked to, and warned her to consider the conversation a formal warning.
The judge found this violated the NLRA, since discussions among employees about pay are considered inherently protected activity even when only one employee benefits directly. The judge rejected Go-Mart's argument that Saylor's wage talk was purely self-interested, citing Fresh & Easy Neighborhood Market, Inc. for the principle that employees can act partly from selfish motives and still be protected, and noting Saylor had also sought the shift manager's input on whether the offer was fair.
The judge further found that after the meeting, Go-Mart never followed up on the promotion and began repeatedly rescheduling Saylor to shifts that conflicted with her second job and her ability to sleep between jobs, despite no legitimate business explanation and no other employee ever being assigned those hours. Applying the Board's Wright Line framework, the judge found the company failed to show it would have withheld the promotion and altered the schedule absent Saylor's protected wage discussion, and concluded the cumulative effect amounted to a constructive discharge when Saylor ultimately resigned.
The judge also rejected Go-Mart's constitutional challenges to the Board's structure and its argument that compensatory remedies violate the Seventh Amendment, following existing Board precedent on both issues. The recommended order requires Go-Mart to offer Saylor the deli manager position, make her whole for lost wages and related expenses, rescind the wage-discussion rule, and post a notice to employees.
Significant Cases Cited
Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Employees may act partly from selfish motives and still engage in protected concerted activity, including when discussing wages that primarily affect only themselves.
Jeannette Corp., 217 NLRB 653 (1975): An employer's unqualified rule prohibiting employees from discussing wages violates Section 8(a)(1) of the NLRA.
Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for determining whether an adverse employment action was motivated by protected activity.
Passavant Memorial Area Hospital, 237 NLRB 138 (1978): Establishes the standard an employer must meet to effectively repudiate unlawful conduct and avoid liability.
North Mountain Foothills Apartments, LLC, 373 NLRB No. 26 (2024): Discussing compensation with coworkers is protected concerted activity, and an employer's belief that such talk was "riling up" the workplace shows it understood the activity as protected.
Clean Earth, Inc., JD-56-26, 32-CA-363439 (ALJ Decision)
An administrative law judge ruled that a Nevada hazardous waste company, Clean Earth, Inc., repeatedly violated the NLRA in its dealings with Teamsters Local 533 after the union won an election to represent a small group of drivers at the company's Fernley facility.
The judge found that Clean Earth broke the law by refusing to sign a written contract even after the union had ratified it, relying on an argument, that internal union ratification disputes excused the company from signing, that the Board has long rejected as an invalid defense. The company also unlawfully transferred a driving route from Fernley to its facility in Somerton, Arizona, without giving the union notice or a chance to bargain, either over the decision itself or its effects on the driver who lost the route and about $1,500 per pay period in wages.
The judge further found that the company eliminated the unit jobs of two drivers, Steven Quinn and Armel Balmediano, by moving them into a newly created "plant yard driver" position that Clean Earth argued was outside the bargaining unit, again without bargaining with the union. The judge discredited testimony from company managers on several points, finding their explanations illogical and contradicted by the company's own records, including evidence that Balmediano received a pay-raising "promotion" the same day he was moved into the new role, undercutting management's claim he took the job mainly to leave the union.
Because those unilateral moves shrank the unit to a single remaining driver, Clean Earth then withdrew recognition from the union altogether, asserting a one-person unit could not bargain collectively. The judge rejected that reasoning, holding that an employer cannot use its own unlawful conduct to shrink a bargaining unit and then claim the shrunken unit as a defense. The company also unlawfully refused to hand over information the union had requested to investigate the route transfers and staffing changes.
As a remedy, the judge ordered Clean Earth to sign and retroactively implement the contract, restore the eliminated positions and driving routes upon request, bargain with the union over the effects of its changes, restore recognition, turn over the requested information, and make affected employees whole for lost wages and other financial harm, with interest.
Significant Cases Cited
H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941): An employer violates the NLRA by refusing to execute a written contract after reaching agreement with a union.
NLRB v. Katz, 369 U.S. 736 (1962): An employer's unilateral change to a mandatory subject of bargaining violates the Act absent a valid defense.
Fibreboard Corp., 379 U.S. 203 (1964): Subcontracting or transferring unit work is a mandatory subject of bargaining.
Fresno Bee, 339 NLRB 1214 (2003): Sets out the burden-shifting framework for unilateral-change disputes, including the employer's burden to justify implementing a preelection decision without bargaining.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): An employer must furnish a union with relevant information needed to perform its duties as bargaining representative.
Petermann, LTD/Durham, 09-RC-386287 (Regional Election Decision)
A regional director dismissed a union petition seeking to add a single Student Discipline Coordinator position to an existing bargaining unit of school bus drivers and monitors at a Pickerington, Ohio, transportation facility.
Teamsters Local Union No. 284, which already represents about 120 drivers and 40 monitors under a collective-bargaining agreement, asked to fold the discipline coordinator into that unit, arguing the position shared enough of a community of interest with drivers and monitors because of daily interactions over student discipline referrals and occasional bus driving duties. The employer countered that the position was one of five office clerical roles that did not belong with drivers and monitors.
The regional director sided with the employer. Applying the Board's community-of-interest framework, the decision found the coordinator's job functions, skills, training, pay, benefits, and working conditions differed substantially from those of drivers and monitors. The coordinator works full-time, year-round, from an office, using different equipment and undergoing different training than drivers, who work part-time seasonal routes. While the coordinator meets with drivers roughly an hour a day to handle discipline referrals and occasionally drives a bus when short-staffed, the decision found this contact too limited to establish functional integration or meaningful interchange of duties, noting that drivers cannot perform the coordinator's work.
The decision also rejected two secondary arguments. It found the petitioned-for unit would improperly "fracture" an appropriate grouping by carving out only one of five office clerical positions without a rational basis tied to classification, department, or function. It also declined to treat the coordinator as a "plant clerical" akin to the employee group in Syracuse University, finding her work not "intimately connected" to the drivers' transportation function in the way that case required. Because no community of interest existed, the petition was dismissed outright.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Sets out the Board's standard for evaluating whether a petitioned-for unit shares a community of interest and is sufficiently distinct from excluded employees.
Odwalla, Inc., 357 NLRB 1608 (2011): Establishes that a unit is impermissibly "fractured" when there is no rational basis for excluding a particular classification while including others.
Syracuse University, 325 NLRB No. 15 (1997): Held that clerical employees may be treated as plant clericals, rather than office clericals, when their work is intimately connected to the operations of the unit they seek to join.
Aurora Fast Freight, 324 NLRB 20 (1997): Reflects the Board's general policy disfavoring units composed of only a segment of an employer's office clerical employees.
NLRB v. Action Automotive, 469 U.S. 490 (1985): Identifies the multi-factor community-of-interest test used to determine appropriate bargaining units.
Microsoft Corporation, 19-CA-364190 (Advice Memo)
Advice attorneys concluded that Microsoft did not violate Section 8(a)(1) when it fired two employees for holding an unauthorized protest tied to the "No Azure for Apartheid" campaign, finding the event was not protected concerted activity for mutual aid or protection.
The employee had spent months emailing leadership and posting internally about the war in Gaza, most of which did not touch on workplace issues. The company disciplined the employee only for two offensive remarks unrelated to working conditions and took no action over involvement in launching the campaign or circulating its petition, which called on Microsoft to cut its Azure contracts with the Israeli government and protect pro-Palestinian speech on company platforms.
The trouble began when the employee invited all staff to a walkout, vigil, speaker series, and fundraiser at Microsoft's Redmond campus opposing the tech industry's alleged support for what organizers called Israel's "apartheid and genocide." The invitation linked to a campaign toolkit that in turn pointed to the earlier petition but gave no indication the event addressed workplace concerns, and it was also publicized on social media to outsiders. Security told the organizers they could not hold the event on company property because it was aimed at non-employees, unauthorized, and backed by an outside group, and asked them to move offsite. When they went ahead anyway, both employees were terminated for violating policy and ignoring security's directions.
Advice found the protest fell outside the NLRA's mutual aid or protection clause because its purpose was to pressure Microsoft over its dealings with Israel and to raise humanitarian awareness and funds, not to improve employees' own working conditions. Citing Eastex, Inc. v. NLRB, the memo noted that at some point the link between employee activity and job-related interests becomes too attenuated for Section 7 protection. The invitation's indirect link to the older petition, which included one demand touching on workplace speech protections, was not enough to convert the protest into protected activity, consistent with Home Depot, USA (though the General Counsel disagrees with that decision and intends to seek its reversal) and Ampersand Publishing, LLC v. NLRB, which held employees cannot wrap an unprotected goal inside a protected one to gain coverage.
The memo also rejected the argument that the protest was protected because damage to Microsoft's public image from its Israel ties could indirectly hurt company finances and thus employee pay, finding that link too remote and inconsistent with case law, including National Dance Institute-New Mexico, Inc., holding that efforts to influence a company's broader business direction or policies do not qualify for mutual aid protection even if they carry incidental financial effects.
Finally, Advice found no evidence the stated reasons for the firings were pretextual, noting no sign of animus tied to the petition or other arguably protected conduct, and directed the Region to dismiss the charge absent withdrawal.
Significant Cases Cited
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Concerted activity is protected under the mutual aid or protection clause only up to the point where its connection to employees' interests as employees becomes too attenuated.
Home Depot, USA, 373 NLRB No. 25 (2024): Addressed the scope of the mutual aid or protection clause where an otherwise unprotected activity is loosely tied to a workplace-related demand.
Ampersand Publishing, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012): Employees cannot extend Section 7 protection by combining a protected goal with an otherwise unprotected one.
National Dance Institute-New Mexico, Inc., 364 NLRB 342 (2016): Pressuring an employer to better serve the needs of an outside community is not protected mutual aid activity, even if it has ancillary financial effects on the business.
Lutheran Social Service of Minnesota, 250 NLRB 35 (1980): Applied the principle that efforts aimed at an employer's broader managerial or business policies fall outside the mutual aid or protection clause.