10/01/2025: NLRB Shut Down Plan
Former employer's negative reference to prospective employer violated NLRA.
Contingency Plan in the Event of a Lapse in Agency Funding, OM 25-10, (OM Memo)
This September 30, 2025 memo from Associate General Counsel Joan Sullivan outlines procedures for a potential government shutdown on October 1, 2025.
Key Points:
All employees must report to work on October 1 unless on approved leave or telework
Upon shutdown notification, employees have four hours to:
Alert parties of postponed hearings and elections
Record provided voicemail messages
Secure equipment and complete shutdown tasks
During shutdown:
No financial obligations except for shutdown operations or emergency protection
No voluntary work permitted
Only designated “essential” personnel (Board Members, Executive Secretary, Acting GC/Deputy GC) may work
“Excepted” employees may be called for emergencies involving threat to life or property
Communication:
Regions must maintain contact with employees via personal contact information
Employees should check the Agency website or call 202-273-2255 for updates
Operations resume immediately if funding is restored before the four-hour shutdown period ends
See also these three attachments to OM 25-10:
DISH Network LLC, JD-84-25, 27-CA-341724 (ALJ Decision)
This case involves a complaint filed by Adam Coate against DISH Network L.L.C., alleging that DISH violated Section 8(a)(1) of the National Labor Relations Act by laying him off in retaliation for engaging in protected concerted activities. Administrative Law Judge Lisa Friedheim-Weis dismissed the complaint in its entirety, finding that Coate did not engage in protected concerted activity and that his layoff was not motivated by any protected activity.
Coate was employed by DISH from May 2022 through November 2023 as a software test engineer in the Information Technology department. During his employment, Coate raised concerns about working remotely, flexible schedules, and work-life balance in various settings, including during a company “coffee chat,” in anonymous employee surveys, and in meetings with management. In November 2023, DISH conducted a large-scale layoff of approximately 800 employees, including Coate.
The General Counsel argued that Coate engaged in protected concerted activities when he raised workplace concerns regarding remote work, flexible schedules, work-life balance, and employee parking. The General Counsel further argued that DISH’s decision to include Coate in the November 2023 layoff was motivated by these protected activities.
In her analysis, Judge Friedheim-Weis first addressed whether Coate engaged in protected concerted activity. She found that Coate’s activities were “purely personal, focused solely on Coate changing his work schedule to one he preferred.” The ALJ noted that there was no evidence that Coate’s actions were taken on behalf of other employees or were designed to initiate group action. Rather, the evidence showed that “Coate spoke by himself and for himself” when addressing management, and his concerns were personal grievances rather than collective concerns.
The ALJ also determined that even if Coate had engaged in protected concerted activity, the General Counsel failed to establish that DISH’s decision to lay him off was motivated by animus toward such activity. Judge Friedheim-Weis credited the testimony of DISH managers that the decision to include Coate in the layoff was based on legitimate business considerations, including that Coate had expressed dissatisfaction with his job and was looking for other employment, and that the only other employee with his specialized skills (who was bilingual and senior to Coate) was being retained.
The ALJ made numerous credibility determinations, generally finding DISH’s witnesses more credible than Coate. She noted that Coate’s testimony was often “selective and self-serving,” and his responses on cross-examination were “evasive, non-responsive, or argumentative.”
Judge Friedheim-Weis also addressed Respondent’s affirmative defense regarding reinstatement. While finding that Coate’s post-layoff conduct (which included yelling and cursing at managers) did not preclude reinstatement if he had been unlawfully terminated, she concluded that this issue was moot given her finding that the layoff was lawful.
Based on these findings, the ALJ dismissed the complaint in its entirety.
Significant Cases Cited
Meyers Industries (Meyers I), 268 NLRB 493 (1984): Established that activity is “concerted” if engaged in with or on behalf of other employees, not solely by and for the individual employee.
Mitsubishi Hitachi Power Systems Americas, Inc., 366 NLRB No. 108 (2018): Set forth the elements required to prove a violation of Section 8(a)(1) of the Act based on an adverse employment action.
Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Clarified that activity is protected when it is both “concerted” and for “mutual aid or protection.”
Alstate Maintenance, LLC, 367 NLRB No. 68 (2019): Established that individual griping does not qualify as concerted activity solely because it is carried out in the presence of others.
Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964): Held that conversation may be concerted activity only if it appears to be engaged in with the object of initiating group action.
Meharry Medical College, JD(SF)-21-25, 10-CA-299029 (ALJ Decision)
This NLRB decision addresses allegations that Meharry Medical College violated Sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act (NLRA) in its treatment of Dr. Joshua Anthony, a former psychiatric resident. The case was tried in Nashville, Tennessee in May 2025 and involved charges filed between September 2023 and August 2024.
Dr. Anthony completed two years of psychiatric residency at Meharry before his contract was not renewed in October 2021 due to his failure to pass the required USMLE Step 3 exam within the specified timeframe. He subsequently filed multiple charges with the NLRB.
Background
Meharry is a historically Black medical college with a psychiatry residency program. Dr. Anthony served as house staff association president during his second year, advocating for resident concerns. In August 2020, Dr. Anthony posted tweets during his shift describing disagreements with an ER attending about patient care. After completing two years of residency, his contract was not renewed because he failed to pass the Step 3 exam by the deadline, despite receiving a three-month extension.
Key Allegations and Rulings
Alumni Email Account Deactivation: The ALJ found Meharry violated Sections 8(a)(1) and 8(a)(4) by deactivating Dr. Anthony’s alumni email account in July 2022. This occurred after Dr. Anthony used the account to email residents about an NLRB settlement notice, which the ALJ determined was protected concerted activity. The ALJ found that Meharry’s claim of policy violation was pretextual, noting that other residents had sent mass emails without repercussion.
PGY-3 Position Refusal: The ALJ dismissed allegations that Meharry unlawfully refused to consider Dr. Anthony for a PGY-3 position in May 2023. The evidence showed there were no openings available and Dr. Anthony did not meet the revised eligibility criteria implemented in December 2022.
PGY-2 Position Refusal: The ALJ also dismissed allegations regarding a June 2024 PGY-2 position, finding that while Dr. Anthony applied for an open position, he did not meet the eligibility criteria limiting Step 2 exam attempts.
Negative Reference: The ALJ found Meharry violated Section 8(a)(4) when Dr. Williamson provided a negative reference to Harlem Hospital, contrary to a settlement agreement that required references to come only from Dr. Cheng.
Summative Evaluation: The ALJ dismissed allegations that Meharry unlawfully refused to update Dr. Anthony’s summative evaluation, finding this did not constitute an adverse action and that summative evaluations were not typically modified after issuance.
ALJ’s Findings on Protected Activity
The ALJ determined that Dr. Anthony’s August 2020 tweets were not protected concerted activity under the Act because they were neither concerted (no evidence other employees shared the concerns) nor related to terms and conditions of employment (focused on patient care decisions rather than working conditions).
However, the ALJ found Dr. Anthony’s July 2022 email distributing the NLRB settlement notice was protected concerted activity as it reminded residents of their rights, referenced previous advocacy, and encouraged collective action.
Remedies
The ALJ ordered Meharry to restore Dr. Anthony’s alumni email account and to contact Harlem Hospital to retract any negative references. The standard notice posting requirements were also ordered.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Framework for analyzing discrimination cases where mixed motives are alleged.
FES, 331 NLRB 9 (2000): Established the analytical framework for discriminatory refusal-to-hire allegations.
Waters of Orchard Park, 341 NLRB 642 (2004): Held that employee concerns about quality of patient care are not protected under the “mutual aid or protection” clause.
Meyers Industries, 268 NLRB 493 (1984) and 281 NLRB 882 (1986): Defined concerted activity as engaged in with or on authority of other employees, not solely by individual employee.
Every Woman’s Place, 282 NLRB 413 (1986): Individual employee’s complaint is concerted if it is a “logical outgrowth” of concerns of the group.
Linden Oaks, 21-RC-343347 (Regional Election Decision)
In this case, the Communication Workers of America, Local 9510 filed a petition seeking to represent a bargaining unit of various educational professionals at Linden Oaks, which provides education and therapy to children and adults with special needs at facilities in Buena Park and Temecula, California.
The Regional Director addressed two main issues: (1) whether the petitioned-for employees are supervisors as defined by Section 2(11) of the National Labor Relations Act, which would exclude them from the Act’s protections, and (2) whether Payroll Managers share a community of interest with the other petitioned-for classifications.
On the first issue, the Regional Director determined that the Employer failed to meet its burden of establishing supervisory status for any of the petitioned-for employees. The decision methodically analyzed each job classification against the primary indicia of supervisory status under Section 2(11), including the authority to responsibly direct, assign, effectively recommend transfer/reward/discipline/hire/discharge, and other supervisory functions. For each classification, the Director found insufficient evidence that employees exercised independent judgment in connection with any of the primary indicia.
On the second issue, the Regional Director found that the Payroll Manager does not share a sufficient community of interest with the other petitioned-for classifications. The analysis considered factors including separate departments, distinct skills and training, different job functions, lack of functional integration, limited contact with other employees, no employee interchange, distinct terms and conditions of employment, and separate supervision.
The Regional Director directed an election in the appropriate unit, which included Teachers, Education Specialist Interns, Substitute Teachers, Teachers on Special Assignment, Speech Language Pathologists, Occupational Therapists, Adapted Physical Education Instructors, and Counselors, but excluded Payroll Managers and other categories of employees.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined “responsibly to direct” as requiring accountability and potential adverse consequences for the putative supervisor.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established the burden of proving supervisory status rests on the party asserting it exists.
Veolia Transportation Services, Inc., 363 NLRB 902 (2016): Clarified that purely conclusory evidence does not satisfy the burden of proving supervisory status.
DirecTV U.S. DirecTV Holdings LLC, 357 NLRB 1747 (2011): Established that effective recommendation means the recommended action is taken without independent investigation.
Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Listed factors used to determine whether employees share a community of interest.
Advocate Health and Hospitals Corporation, D/B/a Advocate South Suburban Hospital, 13-RC-359590 (Regional Election Decision)
In a September 30, 2025 decision, NLRB Regional Director Angie Cowan Hamada overruled all employer objections to a union election and certified the International Union of Operating Engineers Local 399 as the bargaining representative for maintenance workers at Advocate South Suburban Hospital. Following a March 4, 2025 election where employees voted 11-5 in favor of the union (with one challenged ballot), the employer filed three objections to the election results.
The Regional Director addressed each objection in turn. First, the employer claimed the Board lacked authority to certify results due to its lack of quorum. The Director rejected this argument, citing NLRB regulations and federal court decisions establishing that Regional Directors retain authority to process representation cases even when the Board lacks a quorum.
Second, the employer argued that the NLRB’s decision in Amazon.com Services LLC infringed upon its First Amendment rights by restricting its ability to hold mandatory anti-union meetings. The Director overruled this objection because the employer failed to provide any evidence of how this allegedly impacted employee free choice, noting that objections require specific evidence of specific events.
Third, the employer claimed a Maintenance Mechanic Lead engaged in pro-union conduct that created an atmosphere of fear and surveillance. This objection was overruled because the employer failed to provide evidence establishing the employee’s supervisory status or specific details of objectionable conduct.
The Director certified the union as the exclusive representative of the maintenance workers.
Significant Cases Cited
UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015): Held that Regional Directors have authority to conduct representation proceedings despite absence of Board quorum.
SSC Mystic Operating Co., LLC, v. NLRB, 801 F.3d 302 (D.C. Cir. 2015): Affirmed Regional Directors’ continued authority to exercise delegated powers during Board quorum gaps.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Supreme Court decision overruling Chevron deference, which employer argued undermined prior decisions on Regional Director authority.
Amalgamated Clothing Workers of America, 424 F.2d 818 (D.C. Cir. 1970): Established that election objections must point to specific evidence of specific events from specific people.
Amazon.com Services LLC, 373 NLRB No. 136 (2024): Board decision concerning employer mandatory meetings about unionization that employer claimed was unconstitutional.