Michigan Education Association, 375 NLRB No. 42, 07-CA-261392 (Published Board Decision)
The Board dismissed an unfair labor practice charge alleging that the Michigan Education Association unlawfully refused to give the Michigan Executive Directors Association full investigative reports and supporting documents from two workplace harassment investigations. The majority (Chairman Murphy and Members Mayer and Macy) held that the reports and related materials were protected by the attorney-client privilege and work-product doctrine, agreeing with the administrative law judge that the union was not entitled to the underlying investigation files beyond the summaries already provided.
The Board went further to resolve an open legal question: whether the balancing test from Detroit Edison Co. v. NLRB applies when an employer withholds information based on attorney-client privilege. The majority held that it does not. Where a party shows that requested information is genuinely covered by the privilege, the employer does not need to weigh its confidentiality interest against the union's need for the information, and does not need to offer an accommodation, as it otherwise must under Detroit Edison. The majority reasoned that the privilege serves a broader public interest in encouraging full disclosure between clients and lawyers, particularly given the complexity of labor and employment law compliance, and that subjecting the privilege to case-by-case balancing would make it too uncertain to serve that purpose.
Member Prouty dissented in part. He agreed that Detroit Edison balancing does not apply to genuine attorney-client communications, but argued the majority went too far in finding the privilege covered the investigation reports and interview notes in their entirety. Applying a "primary purpose" test drawn from federal appellate case law, Prouty concluded that the investigations were conducted mainly to comply with the union contract's discrimination and harassment policy, not primarily to obtain legal advice, so only the specific portions of the reports containing legal analysis should be shielded and redacted, with the rest disclosed. He also would have rejected the employer's work-product and confidentiality-based defenses, finding the investigations were routine business matters rather than undertaken because of anticipated litigation, and that the employer had not shown a particularized risk of witness retaliation. Because his view did not carry the majority, the dismissal of the complaint stands.
Significant Cases Cited
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Established the balancing test weighing a union's need for relevant information against an employer's legitimate and substantial confidentiality interests.
Upjohn Co. v. United States, 449 U.S. 383 (1981): Described the attorney-client privilege as serving the public interest by encouraging full disclosure between clients and counsel, especially for corporations navigating complex regulation.
BP Exploration, Inc., 337 NLRB 887 (2002): The Board assumed without deciding that Detroit Edison balancing applied to attorney-client privileged materials, while noting such communications might hold a special, non-balanced status.
In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014): Adopted a version of the "primary purpose" test for dual-purpose communications, asking whether obtaining legal advice was one of the significant purposes of the communication.
Northern Indiana Public Service Co., 347 NLRB 210 (2006): Found that assurances of confidentiality to investigation witnesses can establish a legitimate confidentiality interest where disclosure risks discouraging participation or exposing witnesses to retaliation.
Lion Elastomers LLC, 375 NLRB No. 41, 16-CA-190681 (Published Board Decision)
The Board has once again taken up a long-running dispute over an employee’s discipline and discharge, this time addressing how a federal appeals court’s ruling should shape the case going forward. The matter returns after the U.S. Court of Appeals for the Fifth Circuit found that the Board, in an earlier supplemental decision, had overstepped the boundaries of the court’s own remand order and had also denied the employer due process by overruling General Motors LLC without giving the company a chance to weigh in.
By way of background, the Board originally found that the employer, Lion Elastomers, violated the NLRA by threatening an employee, Joseph Colone, with discharge, by disciplining him for conduct at a safety meeting, and by firing him for pursuing grievances. While the case was on appeal, the Board issued General Motors LLC, adopting a new framework (the Wright Line burden-shifting test) for cases where workers lose the Act’s protection because of misconduct connected to otherwise protected activity. The court sent the case back so the Board could decide whether that new framework changed the outcome here. Instead of applying it, the Board used the case as a vehicle to overrule General Motors and reinstate the older, setting-specific tests, including the Atlantic Steel factors. The court rejected that move, ruling it exceeded the scope of the remand and violated the employer’s due process rights, and it sent the case back with instructions to apply General Motors.
In this latest decision, a three-member majority held that because the court invalidated the Board’s attempt to overrule General Motors in this case, that change in law did not survive and General Motors remains the governing precedent. The majority stressed that this conclusion is narrow and tied to the particular procedural posture here, and does not undermine the Board’s general practice of not automatically following adverse circuit court rulings in future cases. The majority remanded the case to the administrative law judge to apply General Motors to the discipline allegation, including reopening the record if needed.
Two separate writings accompanied the decision. One member concurred but cautioned that the outcome should not be read as the Board affirmatively voting to overrule its own precedent, since doing so would itself exceed the scope of the court’s remand. Another member dissented in part, arguing that the majority misapplied the law-of-the-case doctrine by treating the court’s procedural ruling as invalidating the Board’s substantive policy choice. That member contended the earlier setting-specific standards remain valid precedent under the Board’s longstanding policy of not automatically acquiescing to adverse circuit court decisions, and that departing from them without independent reasoned justification violates administrative law requirements.
Significant Cases Cited
General Motors LLC, 369 NLRB No. 127 (2020): Overruled setting-specific standards and adopted the Wright Line framework for cases involving alleged misconduct during protected activity.
Atlantic Steel, 245 NLRB 814 (1979): Established a four-factor test for whether an employee’s conduct during protected activity loses the Act’s protection.
Wright Line, 251 NLRB 1083 (1980): Set out the burden-shifting framework for determining whether an employer’s adverse action was motivated by protected activity.
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009): Held that an agency changing its position must acknowledge the change and provide good reasons for the new policy.
Musacchio v. United States, 577 U.S. 237 (2016): Held that the law-of-the-case doctrine applies only within the same case, not across separate proceedings.
Via 313 Pizza Restaurant II, LLC, 375 NLRB No. 43, 16-CA-370467 (Published Board Decision)
The Board granted summary judgment against Via 313 Pizza Restaurant II, LLC in a test-of-certification case, finding that the company unlawfully refused to bargain with Restaurant Workers United after the union won a re-run election in March 2025.
The company had admitted refusing to bargain but argued it had no obligation to do so, primarily because the union allegedly received unlawful supervisory assistance from a Front of House Shift Manager before a 2022 election. That earlier election was set aside by agreement of the parties, who stipulated to a re-run, which was held in March 2025 and which the union won. The Board rejected the company's attempt to raise the 2022 assistance allegation now, explaining that the General Counsel had already investigated and dismissed a charge on that issue after the parties settled and agreed to the re-run, and that the Board cannot review the General Counsel's prosecutorial decisions. The company could not simply repackage that dismissed allegation as an affirmative defense in this proceeding.
The Board also found that all other representation issues raised by the company either were or could have been litigated in the underlying representation case, and that the company failed to identify newly discovered evidence or special circumstances justifying reconsideration. Several of the company's other affirmative defenses, including challenges to the sufficiency of the complaint, timeliness, jurisdiction, and Board member removal protections, were rejected as unsupported or legally incorrect.
Having found the violation of Section 8(a)(5) and (1), the Board ordered the company to bargain with the union on request and to post a remedial notice. It also applied the standard rule that the union's certification year restarts once bargaining actually begins in good faith. Member Prouty wrote separately to reiterate his view, expressed in a prior dissent, that make-whole and additional remedies should be available in refusal-to-bargain cases like this one, though the majority did not adopt those additional remedies here.
Significant Cases Cited
NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112 (1987): The General Counsel has final, unreviewable authority to investigate charges and decide whether to issue a complaint.
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Issues that were or could have been litigated in a representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent newly discovered evidence or special circumstances.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins running anew once the employer actually starts bargaining in good faith, rather than from the certification date, when there has been an unlawful refusal to bargain.
Allstate Insurance Co., 234 NLRB 193 (1978): An employer's duty to bargain attaches upon issuance of the certification of representative, not upon resolution of any pending request for Board review.
Randalls Food & Drug, L.P., 369 NLRB No. 100 (2020): An employer's admission that it refused to bargain is sufficient by itself to establish a violation of the Act.
AAA Northern California, Nevada & Utah, JD(SF)-17-26, 32-CA-321155 (ALJ Decision)
An administrative law judge found that AAA of Northern California, Nevada & Utah engaged in bad-faith bargaining with Teamsters Local 665 during two years of negotiations for a first contract covering insurance sales agents, and that the company unlawfully imposed a wage-cutting contract on the unit after prematurely declaring impasse.
The dispute centered on renewal commissions, a form of pay tied to policy renewals that had long been central to agents' compensation. The judge found that the company's insistence on eliminating those commissions for its most senior agents, combined with its refusal to offer meaningful justification, its withdrawal from a tentative agreement on just-cause discipline, and inflammatory remarks by its bargaining representatives, showed the company was trying to frustrate any agreement rather than reach one. Particularly damaging was in-house counsel Karen Williams' statement during bargaining that she had once proposed a similarly steep wage cut and that "afterwards the union was decertified," which the judge treated as revealing the company's real goal.
The judge also rejected the company's argument that the parties had reached a genuine impasse in May 2023, finding that both sides were still making concessions on renewal commissions and that the union's proposal to convert commissions into a base salary figure kept the door open to further bargaining. Because the impasse declaration was premature, the company's August 2023 implementation of its "last, best and final offer" was ruled an unlawful unilateral change, along with several additional workplace rule changes the judge found went beyond even that offer's terms, covering scheduling, phone use, translation services, and paid time off.
The judge also found the company committed several independent violations, including denigrating comments by managers linking union support to disloyalty, blaming the union for lost benefits, and offering resigning employees severance agreements with overly broad confidentiality and release terms that would have required them to give up rights under the National Labor Relations Act. Two employees who resigned rather than accept a steep pay cut were found to have been constructively discharged, though the judge declined to extend that remedy to an undefined, unidentified group of other resigning agents.
Separately, the judge found the company unlawfully disciplined agent Carmen Vasquez, a bargaining committee member, after she pushed back against a manager during a dispute over the new work rules. The judge concluded the discipline was based on unsubstantiated hearsay, violated her right to union representation during the related investigatory interview, and was motivated both by her union activity and by her having testified in an earlier unfair labor practice case against the company.
As remedies, the judge ordered the company to restore prior terms and conditions of employment including renewal commissions, bargain in good faith with the union, reinstate the two constructively discharged employees, rescind Vasquez's discipline, and post notices at all branches, including a video of Williams reading the notice given her role in the violations. The judge also extended the union's certification year by a full twelve months in light of the scope of the misconduct.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): An employer violates the duty to bargain by unilaterally changing terms and conditions of employment under negotiation.
Taft Broadcasting Co., 163 NLRB 475 (1967): Sets out the factors relevant to determining whether a genuine bargaining impasse exists, including bargaining history, good faith, and the importance of the disputed issues.
NLRB v. Weingarten, 420 U.S. 251 (1975): Employees have a Section 7 right to union representation during an investigatory interview they reasonably believe may lead to discipline.
NLRB v. Burnup & Sims, 379 U.S. 21 (1964): Discipline imposed for alleged misconduct occurring during protected activity is unlawful unless the employer proves the misconduct actually occurred.
Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for discrimination cases, requiring the General Counsel to show protected activity, employer knowledge, and animus before the burden shifts to the employer.
Pennsylvania American Water Company, 06-RC-382228 (Unpublished Board Decision)
The Board denied the employer's request for review of a regional director's decision directing an election, finding no substantial issues warranted reconsideration. The dispute centered on whether the petitioning union, an independent union formed by the employer's own workers, had shown enough employee involvement to qualify as a labor organization under Section 2(5) of the NLRA.
The Board agreed with the regional director that the petitioner met this standard on three grounds. First, an employee had reached out to the petitioner's officers seeking help forming a new local union. Second, the petitioner collected authorization cards from employees and filed a valid showing of interest. Third, the petitioner's constitution and bylaws limited membership to the employer's employees, who would have the right to elect officers and vote on strike actions. Based on these factors, the Board let the regional director's decision directing an election stand.
Significant Cases Cited
Yale New Haven Hospital, 309 NLRB 363 (1992): An employee's outreach to a union's officers seeking help organizing a local can support finding sufficient employee participation for labor organization status.
AutoZone, Inc., 315 NLRB 115 (1994): Collecting authorization cards and submitting a showing of interest helps establish that a petitioning entity qualifies as a labor organization.
Electrical Construction & Maintenance, 307 NLRB 1247 (1992): Cited alongside AutoZone for the principle that soliciting authorization cards supports labor organization status.
Coinmach Laundry Corp., 337 NLRB 1286 (2002): Constitution and bylaws limiting membership to the employer's employees, with rights to elect officers and vote on strikes, support labor organization status.
Butler Mfg. Co., 167 NLRB 308 (1967): Cited alongside Coinmach Laundry Corp. regarding membership structure as evidence of labor organization status.
Great Pacific Iron Works, 02-RC-381600 (Unpublished Board Decision)
The Board denied the employer's request for review of a Regional Director's decision directing an election, finding no substantial issues warranted further examination.
The dispute centered on whether Team Leaders at the retail store should be classified as supervisors under the NLRA, which would exclude them from the bargaining unit. The Regional Director had refused to let the employer litigate this question at the pre-election hearing because the employer missed the deadline to file and serve its Statement of Position, as required by the Board's rules. The Board upheld that decision, agreeing that the store-wide unit, excluding supervisors, was presumptively appropriate.
The Board acknowledged that under its rulemaking guidance, a Regional Director would ordinarily have discretion to allow evidence on disputed supervisory status when resolving the question could significantly change the size or makeup of the unit, particularly since Team Leaders made up about 28 percent of the unit here. But that discretion did not come into play because of the employer's procedural default. The Board also noted that the employer's own request for review did not ask to set aside the election results, but instead sought a post-election clarification of the Team Leaders' status.
The Board explained that the proper vehicle for resolving that kind of dispute after an election is a unit clarification petition, which the employer had not filed, citing Kirkhill Rubber Co. and the Board's Casehandling Manual. If the employer files such a petition, the Board indicated it would not be barred from presenting evidence and arguments about the Team Leaders' supervisory status, despite its earlier procedural failure in the representation case.
Significant Cases Cited
Kirkhill Rubber Co., 306 NLRB 559 (1992): Addressed the use of a unit clarification petition as the proper mechanism for resolving disputes over the status of employees within an existing bargaining unit.