09/30/2025: Unilateral Changes and Refusal To Bargain Cases
Also a decertification petition rejected for being filed too early.
Covenant House New York, JD-81-25, 02-CA-337831 (ALJ Decision)
Covenant House New York violated federal labor law by refusing to bargain with 1199SEIU and threatening employees with discipline for union activity. The core issue was whether John Sentigar (Director of Development and Communications) and Gabrielle Perez (Program Compliance Coordinator) were managerial employees excluded from the bargaining unit.
After 1199 was certified in August 2023, Covenant House initially accepted both positions in the unit through a Stipulated Election Agreement. However, in early 2024, Covenant House’s new counsel claimed Sentigar and Perez were managers whose participation on the union’s bargaining committee was “unlawful.” Covenant House then canceled multiple sessions, refused to provide requested information, and conditioned further bargaining on removing these employees from the committee.
The ALJ found neither employee was a manager under the NLRB v. Yeshiva University standard, which requires employees to “formulate and effectuate management policies” with discretion independent of established policy. Sentigar identified grant opportunities and prepared applications but had no authority over which grants to pursue, budgets, salaries, or staffing—all executive decisions. Perez conducted compliance reviews and liaised with regulatory agencies but couldn’t require changes, discipline employees, or set policies. Neither had supervisory authority under Section 2(11) or access to confidential labor relations information.
Covenant House’s attempt to “admit” managerial status in its Answer failed because such status requires evidentiary proof of actual authority, not pleading assertions. The ALJ also held Covenant House was barred from relitigating bargaining unit composition under the principle that issues decided or available in representation proceedings cannot be challenged in subsequent unfair labor practice cases.
The violations included: canceling sessions (three in January 2024 alone), making no proposals after November 2023, conditioning bargaining on removal of lawful committee members, refusing to meet even after they resigned, and failing to provide presumptively relevant information (wage data, employment policies, complete unit lists). On June 4, 2024, executives threatened both employees with suspension for union activity via meetings and letters.
The remedy requires twice-monthly bargaining sessions of at least four hours, monthly progress reports to the Regional Director, provision of all requested information, and posting of notices.
Significant Cases Cited
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Managerial employees must “formulate and effectuate management policies” by taking discretionary actions that effectively control or implement employer policy.
Wolf Creek Nuclear Operating Corp., 364 NLRB 1619 (2016): Managerial status requires discretion independent of established employer policy and the prerogative to deviate from such policies.
Atlas Refinery, Inc., 354 NLRB 1056 (2010): Parties may choose their own bargaining representatives; restrictions require “persuasive evidence” that an individual’s presence would make good-faith bargaining impossible.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Supervisory status requires proof of exercising at least one enumerated authority with independent judgment not dictated by detailed instructions or higher authority.
Noah’s Ark Processors, LLC, 370 NLRB No. 74 (2021): Good-faith bargaining is evaluated under a “totality of circumstances” analysis examining conduct at and away from the bargaining table, including dilatory tactics like canceling sessions and failing to provide information.
InfraSource Services, LLC, JD-83-26, 19-CA-343407 (ALJ Decision)
InfraSource Services, LLC violated the National Labor Relations Act by unilaterally installing Lytx camera systems in company vehicles without providing prior notice and opportunity to bargain to three labor unions representing its employees. The company installed dual-facing cameras (recording both driver and road) in April 2024 that captured video and audio during triggering events, which could be used for employee discipline.
The ALJ applied the clear and unmistakable waiver standard from Endurance Environmental Solutions and found that the installation of Lytx cameras was a mandatory subject of bargaining because cameras observing employees at work—particularly when recordings may be used for discipline—have repeatedly been held to require bargaining. The company’s management-rights and safety clauses in the collective bargaining agreements lacked specific language regarding video/audio monitoring or surveillance of employees, and thus did not constitute a clear and unmistakable waiver of the unions’ bargaining rights.
The company violated Section 8(a)(5) and (1) by: (1) refusing to bargain over the decision and effects of installing cameras after unions requested bargaining in May 2024; (2) directly dealing with Local 32 members by requiring them to sign acknowledgments of the new vehicle policy without union involvement; and (3) failing to timely provide requested information relevant to the unions’ representational duties, including the old driving policy, comprehensive cost-benefit data, and disciplinary records.
The company also violated Section 8(a)(1) by threatening employees with discipline for covering their cameras and violated Section 8(a)(5) and (1) by issuing written warnings to seven employees who covered their cameras in protest. Under Great Western Produce, when discipline is based on an unlawfully imposed rule, the discipline itself violates the Act regardless of whether the employer would have disciplined for the same conduct absent the protected activity.
The remedy includes rescinding the policy changes, bargaining on request, removing disciplinary records, making one suspended employee whole for lost wages, and providing all requested information.
Significant Cases Cited
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Board returned to clear and unmistakable waiver standard for contractual waivers of bargaining rights.
NLRB v. Katz, 369 U.S. 736 (1962): An employer violates Section 8(a)(5) if it changes mandatory subjects of bargaining without providing the union with prior notice and opportunity to bargain.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983): Supreme Court reinforced the clear and unmistakable waiver standard for determining whether a union has contractually surrendered its statutory right to bargain.
Great Western Produce, 299 NLRB 1004 (1990): Established that if an employer’s unlawfully imposed rule was a factor in discipline or discharge, the discipline violates Section 8(a)(5).
Colgate-Palmolive Co., 323 NLRB 515 (1997): Installation and use of hidden surveillance cameras in the working environment is a mandatory subject of bargaining due to privacy implications and potential to affect continued employment of monitored employees.
American Municipal Power, Inc., JD-82-25, 10-CA-309166 (ALJ Decision)
In this case decided on September 29, 2025, Administrative Law Judge Charles J. Muhl ruled that American Municipal Power, Inc. (AMP) violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally increasing employee health insurance contributions in 2023, 2024, and 2025 without proper bargaining with the International Brotherhood of Electrical Workers, Local Union No. 816.
AMP operates a hydroelectric plant in Smithland, Kentucky, where eight operators are represented by the Union. The parties signed their initial collective bargaining agreement in April 2021 (effective from January 2019 through December 2022). Article 27 of that agreement stated that bargaining unit employees would participate in AMP’s benefit programs with the “level of benefits” remaining the same for all employees, and noted that this participation “shall not be construed as a waiver of the Union’s right to negotiate these benefits in future Bargaining.”
In October 2022, while successor contract negotiations were ongoing, AMP notified employees (but not the Union) of increases to health insurance contributions for 2023. When the Union objected, AMP claimed the changes were permitted by the contract and past practice. AMP made similar unilateral increases to health insurance contributions in 2024 (after claiming impasse in bargaining) and 2025 (without notifying the Union at all).
The Judge analyzed three key defenses raised by AMP:
Contractual Language: The Judge found that Article 27’s reference to “level of benefits” did not cover the cost of those benefits. The term “benefit” refers to the service provided (health insurance), not the employee’s contribution amount. Additionally, the contract’s zipper clause contained only general language and did not specifically address health insurance costs.
Bargaining History: The Judge concluded that nothing in the negotiation history suggested the Union waived its right to bargain over health insurance contributions. In fact, during successor contract negotiations, the Union tried to trade this right for higher wages, indicating it believed it possessed this right.
Past Practice: While AMP had regularly increased health insurance premiums annually since 2019, the Judge found these increases were “all over the place” with no discernible pattern, indicating AMP exercised “significant managerial discretion” in setting them. This discretion undermined AMP’s past practice defense.
Regarding the 2024 increases specifically, the Judge rejected AMP’s claim that the parties reached bargaining impasse, noting they held only three abbreviated bargaining sessions, and the Union had previously shown willingness to consider alternatives.
The Judge ordered AMP to cease and desist from making unilateral changes, rescind the unlawful health insurance contribution increases, and post appropriate notices.
Significant Cases Cited
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Established that employers must demonstrate unions “unequivocally and specifically expressed their mutual intention” to permit unilateral action on a particular employment term.
United Hospital Medical Center, 317 NLRB 1279 (1995): Held that health insurance premiums are mandatory subjects of collective bargaining requiring bargaining to agreement or impasse.
Wendt Corp., 372 NLRB No. 135 (2023): Established that the party asserting a past practice bears a heavy burden of proof and must show regular and consistent practice without significant managerial discretion.
Eugene Iovine, Inc., 328 NLRB 294 (1999): Rejected past practice defense where the employer’s unilateral action lacked reasonable certainty as to timing and criteria.
Taft Broadcasting Co., 163 NLRB 475 (1967): Set forth factors for determining whether bargaining impasse exists, including bargaining history, good faith, length of negotiations, and importance of issues.
North Huntingdon EMS/Rescue, 06-RD-369695 (Regional Election Decision)
On September 26, 2025, NLRB Region 06 Regional Director Nancy Wilson dismissed a decertification petition filed by Shannon Martin against Teamsters Local Union No. 205. The petition sought to remove the union as the bargaining representative for paramedics, EMTs, rescue techs, and office clerical workers at North Huntingdon EMS/Rescue in Pennsylvania.
The key issue was whether a voluntary recognition bar precluded holding an election. The Regional Director determined that since the petition was filed less than six months after the parties’ first bargaining session, a voluntary recognition bar existed under 29 CFR §103.21.
The facts showed that the employer voluntarily recognized the union on October 14, 2024. The parties held their first bargaining session on January 29, 2025, and the decertification petition was filed on July 21, 2025 - approximately 5 months and 22 days after the first bargaining session. The regulation clearly states that a reasonable period for bargaining is “no less than 6 months after the parties’ first bargaining session.”
The parties had met five times for negotiations before the petition was filed and had reached tentative agreements on multiple contract provisions including recognition, holidays, grievance procedures, and several other items. While no agreements had been reached on healthcare and wages, the Regional Director noted progress in negotiations with neither party declaring impasse.
The Regional Director rejected the employer’s arguments regarding election year and certification year bar rules as inapplicable, and found the petitioner’s argument about employees’ loss of confidence in the union to be outside the scope of the proceedings.
The petition was dismissed because the voluntary recognition bar was still in effect, preventing the Board from conducting a decertification election at that time.
Significant Cases Cited
Lee Lumber, 334 NLRB 399 (2001): Established multi-factor test for determining reasonable period for bargaining following voluntary recognition that was later codified in 29 CFR §103.21.
Wyman Gordon Pennsylvania, LLC, 368 NLRB No. 150 (2019): Cited by employer regarding unilateral withdrawal of recognition where union has lost majority support.
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): Cited by employer regarding standards for unilateral withdrawal of recognition.
Star Crane & Hoist, 09-CA-336248 (Advice Memo)
Issue: Whether a customer non-solicitation provision violated Section 8(a)(1)
Conclusion: No violation
Facts
The employee worked in commission-based crane sales for Star Crane. In 2023, after negotiating to retain a favorable commission structure, the employee signed an agreement not to disclose compensation details to coworkers. Later that year, concerned about hidden fees affecting sales, the employee resigned to work for competitor CISG.
Star Crane made the resignation effective immediately and presented a separation agreement requiring the employee to refrain from soliciting the company’s customers and refer customers back if contacted. The employee signed, claiming not to notice the non-solicitation language.
Shortly after, the employee sent a mass email to 49 individuals at Star Crane customer companies, stating Star Crane’s prices had increased with hidden fees and that CISG offered significant savings. The email included contact information and referenced the employee’s knowledge of inspection schedules.
Star Crane sent a cease-and-desist letter alleging breach and tortious interference, demanding CISG ensure the employee would not compete or disclose confidential information. After settlement negotiations failed, CISG terminated the employee in 2024, citing inability to afford both salary and legal fees. The employee subsequently could not find work in the crane industry.
Legal Analysis
Under Memorandum GC 23-08, non-compete provisions violate the NLRA when they cut off employees’ access to employment opportunities they are qualified for. However, employers have legitimate interests in protecting customer bases. Customer solicitation prohibitions are lawful when reasonable in duration and do not foreclose employment in industries that are not extremely small.
The Division found insufficient evidence the provision cut off employment opportunities. The employee obtained crane industry employment at CISG without initial objection from Star Crane. Star Crane only objected after the mass email solicitation using proprietary information. Star Crane did not demand the employee’s termination, suggesting the provision targeted customer solicitation, not industry employment generally.
Critically, the provision was limited to current customers only—not former or potential customers—and restricted only solicitation, not future work with those customers. The referral clause appeared intended merely to inform customers the employee no longer worked for Star Crane. The unlimited duration raised concerns, but insufficient evidence showed the industry was so small that the provision alone would preclude gainful employment or that the provision itself, rather than the employee’s conduct or litigation, caused subsequent employment difficulties.
Significant Cases Cited
Memorandum GC 23-08 (May 30, 2023) (Rescinded on 02/14/2025) Non-compete provisions violate the NLRA when they deny employees ability to change jobs by cutting off access to employment opportunities.
Berry Green Management, Inc., 07-CA-296276 (April 26, 2023): Identified five types of protected activity chilled by non-compete provisions.