Why the GC Argues Cases She Wants to Lose

In Apex Fintech, both sides told the ALJ that Stericycle was wrongly decided. Then both argued under it.

On July 8, 2026, the General Counsel and Apex Fintech Solutions each filed a post-hearing brief with Administrative Law Judge Arthur J. Amchan in Case 12-CA-325317. Both briefs told the judge that Stericycle, Inc., 372 NLRB No. 113 (2023), the Board's governing standard for workplace rules, was wrongly decided. Both then argued the case under it anyway.

That is not a contradiction. It is the shape the current General Counsel's litigation strategy has settled into, and the Apex briefs show it more cleanly than anything else in the docket so far.

The Case

John Richardson was a data engineer hired by Apex, a Dallas-based clearing and custody firm, in November 2021. As a condition of employment he signed an "Employee Agreement Regarding Confidentiality, Non-Competition, and Non-Solicitation."

Almost immediately he ran into an onboarding task that required employees who "identify as female" to enroll in a poker course called Poker Powher, and employees who "identify as male" to invite women to join it. Richardson, who wanted to take the course, emailed HR to ask whether he could enroll anyway, and whether a comparable program existed for men. Over the next two years he compiled a substantial record of what he regarded as gender discrimination in his workplace: a mentorship program in which men could serve only as mentors and never as mentees, women-only networking events held during working hours, Slack threads in which managers discussed increasing referral bonuses for female candidates and advancing a self-described "weakest of the bunch" intern applicant to balance the class, and a long run of sexist jokes posted by employees and reacted to approvingly by supervisors.

Richardson raised these concerns internally, then with the EEOC, and finally in public. On August 25 and August 30, 2023, he published lengthy LinkedIn posts laying out the complaints. Coworkers saw them, liked them, and messaged him about them. On the night of August 30, Apex's Senior Director of Human Resources emailed Richardson demanding he take the posts down, asserting that some statements in them were false and defamatory without identifying which ones. Richardson refused. Apex fired him on September 1, and its discharge letter says why: the LinkedIn posts.

Then, on October 17, 2023, Apex sued him for defamation, identifying as actionable a set of statements that the General Counsel characterizes as plainly opinion, and seeking damages without alleging any actual injury. Apex served discovery to prosecute the suit and did not drop it until October 28, 2025.

The amended complaint alleges four Section 8(a)(1) violations: threatening Richardson with unspecified reprisals, discharging him for protected concerted activity, filing and prosecuting a baseless retaliatory lawsuit, and maintaining unlawfully overbroad rules in the Employee Agreement. Counsel for the General Counsel Steven Barclay argues all four should be sustained, and asks for reinstatement, backpay, and consequential damages under Thryv, Inc., 372 NLRB No. 22 (2022).

Footnote 48

The rules allegation is where it gets interesting. Under Stericycle, a facially neutral work rule is presumptively unlawful if a reasonable employee contemplating protected activity could read it as coercive, and the employer rebuts that presumption only by showing the rule serves a legitimate and substantial business interest that no narrower rule could serve.

The General Counsel's brief applies that test in earnest and at length. It walks through Apex's definition of "Proprietary Information," which sweeps in manuals, training materials, the company's educational process, and its list of "members, partners, stockholders, and investors." It gets Apex's own VP of HR to concede on the record that "members" means employees, and that several of the covered manuals contain nothing proprietary. It analogizes to G&E Real Estate Management Services (Newmark Grubb Knight Frank), 369 NLRB No. 121 (2020). It concludes that Apex "is unable to meet its burden."

And then, at the bottom of page 46, footnote 48:

The General Counsel disagrees with Stericycle and will urge the Board to overturn it in favor of an approach to employer work rules and handbook policies that is more aligned with congressional intent and conducive to maintaining peaceful and orderly workplaces.

The brief goes on to argue the point under this standard.

Apex's answering brief makes the same basic move. It says Stericycle "was wrongly decided," and adds:

Notably, even the General Counsel's office recently urged the Board to reconsider the Stericycle framework. See Counsel for the General Counsel's Exceptions and Supporting Brief, Starbucks Corporation, Case 13-CA-322871 (filed June 17, 2026).

Apex then explains that "because Stericycle remains controlling precedent, Apex addresses the challenged provisions under that framework without waiving its position that the Board should abandon it."

Both parties, in other words, arrived at the same posture from opposite directions: apply the law, preserve the objection.

This is fairly standard practice as far as things go. Board law is established by the Board not by the General Counsel. The General Counsel and the Administrative Law Judges are bound by existing Board precedent. Thus, when the GC wants the Board to weaken its existing protections, she must bring cases under current precedent, win them at the ALJ level, and then hope that the Board will use them as a vehicle to overturn that precedent.