Sprinklermatic Florida, 12-CA-340152 (Advice Memo)
The NLRB's Division of Advice concluded that a Florida fire protection company should not face unfair labor practice charges over its refusal to hire or consider eight paid union organizers who applied as "salts" at its facilities.
The organizers applied online for positions across the employer's Florida locations and received automated confirmation emails, with several following up by phone. None were referred by a current supervisor, manager, or employee. Two of the applicants had previously worked for the employer during an earlier covert organizing campaign, allegations from which had already been settled.
The employer showed it filled all open positions during the relevant period exclusively through internal referrals, under a written policy that prioritizes current and former employees and candidates referred by supervisors or employees, with unreferred applicants ranked lowest. Advice found it would be difficult to prove the employer even reviewed the online applications, which undercuts any claim of unlawful refusal to consider for seven of the eight applicants. Citing B & C Contracting Co., Advice noted that an employer cannot unlawfully refuse to consider applications it never actually received or reviewed.
Applying the FES burden-shifting framework, Advice reasoned that even if the General Counsel could show antiunion animus played a role, the employer could likely demonstrate it would have made the same hiring decisions regardless, because its nondiscriminatory referral-based policy explains why those seven were not hired. Advice cited Brandt Construction Co. for the principle that following an established, nondiscriminatory hiring policy defeats a discrimination claim, and Tradesmen International for the point that one apparent deviation from a policy does not invalidate its otherwise consistent application.
One applicant stood apart because that person was a former employee entitled to higher priority under the policy and had followed up with an office manager who would have recognized them, yet Advice still found this applicant's case unlikely to succeed on other grounds. As for the remaining applicant, Advice determined that the person's résumé showed a lack of genuine interest in actually obtaining employment, warranting dismissal under the Toering Electric standard and the General Counsel's July 2025 guidance on investigating salting cases.
Based on these conclusions, Advice directed the Region to dismiss the charge unless it is withdrawn.
Significant Cases Cited
FES, 331 NLRB 9 (2000): Established the burden-shifting framework requiring the General Counsel to show antiunion animus contributed to a refusal to hire, after which the employer must show it would have made the same decision regardless.
Toering Electric Co., 351 NLRB 225 (2007): Held that an applicant who lacks a genuine interest in becoming an employee is not protected under the refusal-to-hire framework.
B & C Contracting Co., 334 NLRB 218 (2001): Found no unlawful refusal to consider applications where the decisionmaker never actually received or knew of them.
Brandt Construction Co., 336 NLRB 733 (2001): Held that following a consistently applied, nondiscriminatory hiring policy giving preference to referrals defeats a hiring discrimination claim.
Tradesmen International, Inc., 351 NLRB 399 (2007): Held that a single exception to an otherwise consistently applied hiring policy does not invalidate the policy.
Stanford University, 32-RC-386778 (Unpublished Board Decision)
The Board partially granted Stanford University’s motion to stay an election and related voter-list production stemming from a representation petition filed by Residential Assistants United Rising seeking to organize a unit of resident assistants. The dispute centered on a subpoena requiring the university to turn over student information, which the university argued could conflict with the Family Educational Rights and Privacy Act.
The Board modified the Regional Director’s earlier order addressing the FERPA concerns, directing that any non-public information about a student who objects to the subpoena on FERPA grounds before the university’s response deadline be excluded from production. The Board said it would take up any additional FERPA-based objections when it considers the university’s forthcoming request for review of the underlying decision, and instructed the university to file that request promptly.
The Board denied the remainder of the university’s motion, including the request to stay the election itself. It clarified that this denial does not prevent the university from raising its other arguments, including whether the Board should decline to assert jurisdiction over the case at all, in its request for review.
ERMC Aviation LLC, 29-RC-360278 (Unpublished Board Decision)
The Board denied the employer's request for review of a regional director's decision certifying a union, finding no substantial issues warranted review of any of the four objections raised.
On the first objection, which argued the employer was covered by the Railway Labor Act rather than the NLRA, the Board found the argument could be raised despite the employer's earlier stipulation to Board jurisdiction, since jurisdictional limits under the NLRA can be raised at any time. Even so, the Board rejected the argument on the merits, relying on the National Mediation Board's decision in Swissport Cargo Services, LP, which held that the Railway Labor Act applies only to air carriers themselves, not their contractors. Because the employer was not an air carrier, the Board concluded the regional director correctly asserted jurisdiction. Member Mayer noted he would be open, in a future case, to referring the jurisdictional question back to the National Mediation Board to confirm its position hasn't shifted.
On the second objection, the employer argued the regional director lacked authority to process the petition without a Board quorum. The Board rejected this, citing its prior decision in Satellite Healthcare (Santa Rosa) and the reasoning in UC Health v. NLRB, and noted that the Board in fact had a quorum on the date the regional director issued her decision.
On the third objection, the employer sought to challenge the Board's precedent in Amazon.com Services. The Chairman and Member Mayer, who had not participated in that earlier case, declined to take a position on whether it was rightly decided, concluding that such a challenge was not properly raised in a representation proceeding.
The fourth objection alleged that two individuals who the employer claimed were supervisors engaged in objectionable pro-union conduct under Harborside Healthcare. The Board agreed with the regional director that this objection could not succeed because the employer never challenged those employees' ballots during the election, and postelection challenges recast as objections are not permitted. The Board also found that the parties' Stipulated Election Agreement, which specifically included "Supervisor Bus Operators" while excluding "supervisors" generally, precluded the employer from later claiming these workers were statutory supervisors. The Board clarified that the voter list itself did not have that same preclusive effect. Because the employer could not establish the individuals were supervisors, it could not make out a prima facie Harborside violation, so the Board did not need to address whether the alleged conduct would otherwise have been objectionable.
Significant Cases Cited
Bradley Pacific Aviation, Inc., 350 NLRB 583 (2007): Jurisdictional limitations under Section 2(2) of the NLRA may be raised at any time, regardless of prior stipulations.
Swissport Cargo Services, LP, 373 NLRB No. 144 (2024): The Board affords substantial deference to National Mediation Board advisory opinions on Railway Labor Act coverage.
UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015): Addressed and rejected arguments concerning the Board's authority to act without a full quorum.
Harborside Healthcare, Inc., 343 NLRB 906 (2004): Established the standard for objections based on pro-union supervisory misconduct affecting an election.
Prior Aviation Service, 220 NLRB 460 (1975): The Board will not entertain postelection ballot challenges or objections that function as such challenges.
Home Express Delivery Service, LLC, D/B/a TEMCO Logistics, 10-RC-378767 (Unpublished Board Decision)
The Board denied the employer's request for review of a regional director's order directing a hearing on election objections, finding that the 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, LLC, an unfair labor practice case. Chairman Murphy and Member Mayer rejected this argument for the reasons set out in Satellite Healthcare, noting that they had not participated in the Amazon decision and expressed no view on whether it was correctly decided.
The Board also declined to review the regional director's rejection of an objection claiming that Board members and regional directors enjoy unconstitutional removal protections. The panel found no evidence that the employer had suffered any harm from such removal protections, citing prior Board precedent and a federal appeals court ruling holding that a party raising this type of constitutional challenge must first show it was actually harmed by the removal provisions.
Significant Cases Cited
Satellite Healthcare, 374 NLRB No. 39 (2026): Set out the Board's reasoning for rejecting arguments that elections must be set aside based on the Amazon.com Services removal-protection holding.
Amazon.com Services, LLC, 373 NLRB No. 136 (2024): An unfair labor practice decision addressing removal protections for Board members and regional directors.
Winco Holdings, Inc., 374 NLRB No. 37 (2026): Held that a party challenging removal protections must show it suffered actual harm from those protections.
K & R Contractors, LLC v. Keene, 86 F.4th 135 (4th Cir. 2023): Held that a petition raising an unconstitutional removal claim must be denied where the challenging party has not asserted any resulting harm.
Movement Holdings, LLC D/B/a Movement Gym, 05-RC-382041 (Unpublished Board Decision)
The Board denied the employer's request for review of a regional director's decision certifying a union election result, finding no substantial issues warranted a second look.
The employer had raised several objections claiming union agents engaged in misconduct that tainted the election, but the Board agreed with the regional director that the employer's offer of proof fell short. For most of the objections, the employer merely asserted that certain employees were union agents without offering any evidence to support that claim. The Board reiterated that the party alleging agency status carries the burden of proving it, and a bare assertion is not enough to trigger a hearing. A separate objection referring generally to "union agents" engaging in misconduct was similarly deficient because it failed to identify any specific wrongdoer, and in any case described conduct that is not considered objectionable under existing Board precedent, since union promises contingent on factors outside the union's control do not taint an election.
The Board also addressed the employer's argument that a threatening statement written in Mandarin by an employee constituted objectionable third-party conduct. It rejected this claim on multiple grounds. The violent language in the statement targeted unspecified "billionaires" rather than eligible voters, and it was implausible that the employee who wrote it had any actual power to carry out the sentiment. The employer also failed to show when the statement was translated or whether the translation was shared with voters before the election, meaning there was no evidence that anyone besides the author was even aware of its contents. Even assuming all voters had seen and understood the statement, the Board concluded it would not have created a general atmosphere of fear and reprisal sufficient to render a free election impossible, whether considered alone or alongside the employer's other allegations.
Significant Cases Cited
Cornell Forge Co., 339 NLRB 733 (2003): The party asserting that an individual is an agent of a union bears the burden of proving that agency relationship.
Smith Co., 192 NLRB 1098 (1971): Union promises or threats that are contingent on factors beyond the union's control are generally not objectionable conduct affecting an election.
Westwood Horizons Hotel, 270 NLRB 802 (1984): Election-related misconduct must create a general atmosphere of fear and reprisal rendering a free election impossible to warrant setting aside election results.
BWXT Nuclear Operations Group, Inc. (BWXT NOG), 10-RD-387727 (Unpublished Board Decision)
The Board denied an employer's request for review of a regional director's decision to hold a decertification petition in abeyance under the Board's blocking charge policy. The employer had sought review under the standard governing appeals of regional director decisions in representation cases generally, but the Board found that a challenge to an abeyance determination is instead governed by a more specific rule, and that several of the grounds the employer raised did not correspond to anything available under that provision. Because the regional director had followed the blocking charge rule as written, the Board found no substantial issue warranting review and denied the request. The Chairman and one member noted they were applying existing law without expressing any view on whether that blocking charge policy itself was correctly decided.
In a separate concurrence, one Board member wrote to flag an open question about how regional directors should decide when "special circumstances" justify letting a representation petition proceed despite a pending unfair labor practice charge. The blocking charge rule allows a case to proceed if a regional director determines that special circumstances exist, and the Board's own casehandling guidance recognizes that such circumstances can exist without spelling out what they are. The concurrence noted that a 2024 rulemaking had referenced an older internal manual that once listed seven relevant factors, including the nature and scope of the alleged conduct, the size of the workforce affected, whether employees were direct targets of the conduct, and the timing of the charge, but that manual is not publicly available, leaving unclear whether those factors were actually incorporated into current Board policy. The member suggested the Board should clarify this in the future but agreed the case did not require doing so now.
Significant Cases Cited
Starbucks Corp., 374 NLRB No. 141 (2026): Held that the term "special circumstances" in the Board's blocking charge rule refers to the long-established exceptions to that policy set out in the Board's Casehandling Manual.