McDowell County Commission on Aging, Inc., 375 NLRB No. 33, 09-RD-343950 (Published Board Decision)
The Board reviewed a Regional Director's decision to dismiss a decertification petition after related unfair labor practice charges involving the same employer were settled. A divided panel reversed the dismissal and ordered the impounded ballots opened and counted.
The case arose after a union's contract with an in-home care employer expired and a bargaining-unit employee filed a petition to decertify the union. While the petition was pending, the union filed unfair labor practice charges alleging the employer had improperly assisted and solicited the decertification effort. The election was held and the ballots were impounded pending resolution of those charges. The employer and union later settled the charges, without any admission of wrongdoing, and the settlement required the Regional Director to dismiss the petition. The petitioner was not part of that settlement. The Regional Director then dismissed the petition, citing the settled allegations as having tainted it.
The Board majority found this was error. Citing TruServ Corp., the majority explained that a settlement of unfair labor practice charges without an admission of liability does not, by itself, provide substantial evidence that the employer actually engaged in misconduct, and therefore cannot alone justify dismissing a decertification petition. The majority acknowledged that a petition can still be dismissed if a Regional Director makes an actual administrative finding that the employer instigated the petition or solicited the showing of interest, but concluded the dismissal letter here did nothing more than recite the settled complaint allegations without articulating such a finding or explaining why the conduct described amounted to the kind of direct employer involvement required under Canter's Fairfax Restaurant. The majority distinguished the employer's conduct from cases like Kauai Veterans Express Co., AIM Aerospace Sumner, and SFO Good-Nite Inn, finding nothing comparably direct alleged here. It granted review, reversed the dismissal, and remanded for the ballots to be opened and counted.
Member Prouty dissented, arguing that the Regional Director's letter did reflect an administrative finding, not just a recitation of settled charges, that the employer directly solicited employee support for the petition, including by polling employees at a mandatory meeting and directing them to sign decertification materials. In his view, this fell squarely within TruServ's exception for petitions tainted by direct employer solicitation, regardless of the parallel settlement, and the dismissal should have been upheld. He further argued that TruServ itself was wrongly decided because it undermines the stabilizing function of settlements and invites tainted petitions to proceed, and he would have denied review entirely.
Significant Cases Cited
TruServ Corp., 349 NLRB 227 (2007): An employer's settlement of unfair labor practice charges without an admission of wrongdoing does not by itself require dismissal of a decertification petition, but a petition still must be dismissed if the Regional Director finds it was instigated by the employer or that the showing of interest was solicited by the employer.
Canter's Fairfax Restaurant, 309 NLRB 883 (1992): A Regional Director may dismiss a decertification petition based on an administrative investigation revealing direct employer involvement with the petition, such as supervisors circulating it.
Kauai Veterans Express Co., 369 NLRB No. 59 (2020): An employer's polling of employees about their union support through a written memorandum constituted improper solicitation and direct involvement that tainted a subsequent decertification petition.
AIM Aerospace Sumner, 367 NLRB No. 148 (2019): A decertification petition is tainted when an employer directly instigates or propels the decertification effort by actively soliciting, encouraging, or assisting in it.
SFO Good-Nite Inn, 357 NLRB 79 (2011): Managers who directly threatened employees with reduced hours or discharge to coerce them into signing a decertification petition tainted the petition through direct employer involvement.
O'Neill Asset Management, JD-59-26, 07-CA-352673 (ALJ Decision)
An administrative law judge dismissed all allegations against O'Neill Asset Management, LLC, a financial services firm in Grand Rapids, Michigan, finding it did not violate the NLRA.
The case arose from a heated staff meeting on May 23, 2024, where an employee, Bridgett Hendrick, confronted the company's president, Andrew O'Neill, about his treatment of staff. Other employees, including Shay Barber, voiced agreement. O'Neill cut the meeting short, citing arriving clients, and later told Hendrick her concerns would not be discussed at another staff meeting. The General Counsel argued this amounted to an unlawful rule barring employees from discussing workplace issues with each other. The judge disagreed, finding no evidence O'Neill forbade employees from talking to each other or to management as a group, only that he declined to continue the discussion at that particular meeting.
The judge also addressed Barber's discharge. On August 23, 2024, Barber, in his own words, complained to a coworker, Benjamin Dykstra, that O'Neill was greedy and untrustworthy and pitted employees against each other. Dykstra, who had only started three days earlier and had not invited the conversation, reported feeling uncomfortable and told O'Neill about it. After reviewing security footage, O'Neill decided to fire Barber, and the termination took place on August 26, ending in a confrontation where O'Neill challenged Barber to a fight and police were called. The judge found Barber's remarks to Dykstra were not protected concerted activity, since Barber was not enlisting Dykstra's support for any collective effort to change working conditions and Dykstra had shown no interest in joining such an effort. The judge characterized the conversation as "mere griping," which the NLRA does not protect, and distinguished cases cited by the General Counsel because those involved employees actively making common cause with each other.
Finally, the judge rejected a challenge to the confidentiality provisions in Respondent's employment agreements, which restricted disclosure of information such as business strategies, customer lists, and other company data. Applying the Board's Stericycle framework, the judge found no evidence in the record that an employee could reasonably interpret the rules as coercive of Section 7 rights, so the General Counsel failed to meet its initial burden.
Significant Cases Cited
Myers Industries, 268 NLRB 493 (1984): Defined concerted activity as conduct engaged in with or on the authority of other employees, not solely on behalf of the individual employee.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework requiring the General Counsel to show protected activity was a motivating factor before the employer must prove it would have taken the same action regardless.
Stericycle, Inc., 372 NLRB No. 113 (2023): Set the current standard for evaluating whether facially neutral workplace rules unlawfully chill employees' Section 7 rights.
Component Bar Products, Inc., 364 NLRB 1901 (2016): Found conduct protected as inherently concerted where an employee warned a coworker that his job was in jeopardy.
Parexel International, LLC, 356 NLRB 516 (2011): Recognized that discharging an employee to preemptively prevent protected activity can itself violate the Act.
HH Sub I, LLC D/B/a Tree of Life Dispensary, 28-RC-353928 (Regional Election Decision)
A regional director has dismissed a union election petition after finding that the employee who led the organizing drive was actually a supervisor, meaning the authorization cards he collected could not count toward the showing of interest needed to hold a vote.
The case involved a cannabis dispensary in Las Vegas, where United Food and Commercial Workers International Union, Local 711 sought to represent Customer Care, Delivery/Fulfillment, Inventory Processor, and Packager employees. The employer argued that Customer Care Leads, including the employee who spearheaded the organizing campaign, were supervisors under the NLRA and that their involvement had tainted the union's showing of interest. The parties initially agreed to hold the challenged Customer Care Leads' ballots pending a determination on their status, but the election was postponed after an unfair labor practice charge was filed, and the regional office used that time to investigate the supervisory question.
The investigation found that the Customer Care Lead who initiated contact with the union, organized meetings, and personally solicited about 64% of the signed authorization cards exercised supervisory authority over other employees. Evidence showed Customer Care Leads assigned work, trained new hires, enforced workplace rules, and directed employees' day-to-day tasks while being held accountable if the work wasn't done properly. They also recommended and issued discipline without independent investigation by store management, including in incidents involving insubordination and a workplace fight, and management largely deferred to their assessments. Additional secondary evidence included higher pay, attendance at management meetings, access to secure areas and pricing systems, and the fact that most employees interviewed considered the Customer Care Leads their supervisors.
Applying Board precedent, the regional director concluded that because a supervisor directly solicited a substantial portion of the authorization cards, those cards had to be excluded from the showing of interest under the Board's bright-line rule, regardless of whether the union knew of the employee's supervisory status. With those cards removed, the union's showing of interest fell below the required threshold, and the petition for an election was dismissed.
Significant Cases Cited
NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571 (1994): Set out the traditional three-part test for determining whether an individual qualifies as a supervisor under Section 2(11).
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established that the party asserting supervisory status bears the burden of proof and clarified the meanings of "assign," "responsibly direct," and "independent judgment."
Dejana Industries, Inc., 336 NLRB 1202 (2001): Established the bright-line rule requiring exclusion of all authorization cards directly solicited by a supervisor from a union's showing of interest.
Madison Square Garden, 350 NLRB 117 (2007): Held that a supervisor's authority to effectively recommend discipline can coercively influence employees to sign authorization cards.
Starwood Hotels & Resorts Worldwide, Inc., 350 NLRB 1114 (2007): Found supervisory status where a putative supervisor's disciplinary recommendations were followed by management without independent investigation.
Doctors Hospital of Manteca, Inc. D/B/a Doctors Hospital of Manteca, 32-RC-379650 (Unpublished Board Decision)
The Board denied an employer's request for review of a Regional Director's decision directing a self-determination election for emergency department technicians at a hospital.
The employer first argued that the Regional Director had erred in allowing the union to withdraw an earlier petition in a related case, but the Board found this argument barred because the employer had already raised and lost that same issue in a prior request for review, which the Board's rules prohibit repeating.
The employer also argued that the union had failed to meet its evidentiary burden to justify a self-determination election. The Board rejected this framing, explaining that because the case did not involve a presumptively appropriate bargaining unit, no such burden existed. Instead, the Regional Director only needed "some record evidence" supporting the election, a standard drawn from DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo. The Board agreed that the unrebutted evidence presented at the hearing showed the petitioned-for technicians formed a distinct, identifiable group sharing a community of interest with classifications already in the existing unit, citing factors like job duties, supervision, department structure, functional integration, contact, working conditions, and bargaining history, consistent with the standard set out in Warner Lambert, Co.
Finally, the employer tried to argue on review that the technicians lacked a community of interest with employees at other facilities in the existing unit, a different claim from the one about shared classifications. The Board found this argument had not been properly raised before the Regional Director, either in the employer's statement of position or at the hearing, and so could not be raised for the first time on review. The Board also noted that self-determination elections for a single classification at one facility have been approved before when, as here, a multi-location labor agreement showed the classification was included in the broader unit on a facility-by-facility basis, referencing NLRB v. Am. Printers & Lithographers.
Significant Cases Cited
DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo, 375 NLRB No. 2 (2026): Held that in unit determinations not involving a presumptively appropriate unit, the Board does not impose an evidentiary burden on the petitioning union but requires the Regional Director to rely on some record evidence.
Warner Lambert, Co., 298 NLRB 993 (1990): Established that a petitioned-for voting group must be a distinct, identifiable segment sharing a community of interest to support a self-determination election.
NLRB v. Am. Printers & Lithographers, 820 F.2d 878 (7th Cir. 1987): Approved self-determination elections for a specific classification at a single facility where a multi-location collective-bargaining agreement showed that classification had been included in the broader unit on a facility-by-facility basis.
Reed Institute D/B/a Reed College, 19-RC-378745 (Unpublished Board Decision)
The Board declined to review a regional director's decision finding that Reed College had not shown its "Night Lead" security officer role qualifies as a supervisory position under the NLRA, allowing an election to proceed among the college's campus security officers.
The Board explained that establishing supervisory status under Section 2(11) requires only proof that a person possesses the authority to perform a supervisory function, not evidence that the authority was actually used. To the extent the regional director's decision could be read as demanding proof that the Night Lead had actually exercised supervisory authority, the Board said it was not relying on that reasoning. It also found it unnecessary to address the regional director's separate observation that the role rotates among officers on a shift-by-shift basis, since the college had already failed to establish any of the primary indicators of supervisory authority.
Member Prouty wrote separately to endorse the rotating-shift point as an independent, sufficient problem with the college's position. He noted that a party asserting supervisory status must show that the person spends a regular and substantial portion of their time performing supervisory duties, and that Reed College had not offered evidence that officers filling the Night Lead role met that threshold.
Significant Cases Cited
Avante at Wilson, Inc., 348 NLRB 1056 (2006): Holds that Section 2(11) requires only possession of authority to perform a supervisory function, not its actual exercise.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Holds that a party asserting supervisory status must prove that the individual spends a regular and substantial portion of their work time performing supervisory functions.
Doctors Hospital of Manteca, Inc. D/B/a Doctors Hospital of Manteca, 32-RC-376933 (Unpublished Board Decision)
The Board denied the employer's request for review of a Regional Director's decision directing a self-determination election for environmental services employees seeking to join an existing certified unit of CNAs at a hospital.
The Board rejected the employer's argument that the Regional Director lacked authority to hold a pre-election hearing or process the petition without a Board quorum, citing its recent decision in Satellite Healthcare (Santa Rosa). It also found the employer was barred from re-raising its objection to the union's withdrawal of a prior petition, since that issue had already been raised and rejected in an earlier request for review, and the Board's rules bar repetitive requests.
On the merits, the Board held that because the case did not involve a presumptively appropriate unit, the union bore no formal evidentiary burden. Instead, the Regional Director only needed "some record evidence" supporting the self-determination election, a standard drawn from DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo. The Board agreed that the petitioned-for EVS employees were a distinct, identifiable segment sharing a community of interest with the CNAs, since both groups qualify as nonprofessional employees under the Board's Health Care Rule, consistent with St. Vincent Charity Medical Center.
The Board also declined to consider the employer's argument that the EVS employees lacked a community of interest with employees at other facilities in the existing multi-facility unit, finding this argument had not been properly raised before the Regional Director. The Board noted that even if properly raised, precedent from NLRB v. Am. Printers & Lithographers supported allowing a self-determination election for a single classification at one facility where the collective-bargaining agreement showed the classification was included in the multi-facility unit on a facility-by-facility basis.
Finally, the Board upheld the Regional Director's decision to let a putative statutory supervisor vote subject to challenge, consistent with the Board's election rules. One member noted he was applying that rule as existing law without opining on whether it was correctly adopted.
Significant Cases Cited
DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo, 375 NLRB No. 2 (2026): Held that the Board does not impose a formal evidentiary burden on a petitioning union to prove a petitioned-for unit is appropriate, requiring only "some" record evidence supporting the Regional Director's unit determination.
St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Applied the Board's Health Care Rulemaking classifications to determine whether employees in a petitioned-for voting group share a community of interest with employees in a preexisting unit.
NLRB v. Am. Printers & Lithographers, 820 F.2d 878 (7th Cir. 1987): Approved self-determination elections for a specific classification at a single facility where a collective-bargaining agreement showed that classification was included in a multi-facility unit on a facility-by-facility basis.
Warner Lambert, Co., 298 NLRB 993 (1990): Addressed the standard for determining whether a petitioned-for voting group constitutes a distinct, identifiable segment appropriate for a self-determination election.
Satellite Healthcare (Santa Rosa), 374 NLRB No. 25 (2026): Established that a Regional Director retains authority to hold pre-election hearings and process representation petitions even absent a Board quorum.
"Strange decision from Amchan" seems like a regular occurrence.