Unifi Aviation, LLC, 19-RC-364995 (Unpublished Board Decision)

The Board denied the Employer’s request for review of a Regional Director’s decision resolving challenged ballots and objections, finding that the request raised no substantial issues warranting review.

The case centered on a text message the Employer sent to nearly half of the bargaining unit on election day. The Board found that this communication went beyond a lawful prediction about the effects of unionization and instead amounted to a threat of adverse consequences within the Employer’s control. Specifically, the text conveyed that if employees voted for the Union, they would likely lose the scheduling flexibility that allowed most of them to hold outside full-time jobs. Because that message threatened a loss tied to the Employer’s own choices rather than predicting objective economic consequences, the Board agreed with the Regional Director that it was objectionable conduct warranting a rerun election.

The Board also rejected the Employer’s argument that the text was protected speech under Section 8(c) of the NLRA. It explained that Section 8(c) operates only as a defense in unfair labor practice cases and does not provide guidance for evaluating conduct in representation elections. Even so, the Board noted that Section 8(c) would not shield threatening statements of the kind found here in any event.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Employers may lawfully predict the economic consequences of unionization if based on objective fact, but statements that threaten retaliatory action within the employer’s control are not protected predictions.

• Systems West LLC, 342 NLRB 851 (2004): Applied the standard distinguishing lawful predictions from unlawful threats in the context of election objections.

• Hahn Property Management Corp., 263 NLRB 586 (1982): Section 8(c) of the Act applies only as a defense in unfair labor practice proceedings and does not govern the assessment of conduct affecting the validity of a representation election.

Sutphen Corporation, JD-68-26, 09-CA-366492 (ALJ Decision)

An administrative law judge found that Sutphen Corporation violated the NLRA by bargaining in bad faith with Teamsters Local 284 over a successor contract for workers at its Dublin, Ohio fire truck manufacturing facility.

The judge concluded that Sutphen engaged in unlawful surface bargaining from September 2024 through January 2026, looking at the totality of its conduct both at and away from the table. Before the parties’ prior contract expired, the company refused to meet face-to-face with the union, routed proposals through a mediator instead, and presented sweeping cuts to existing contract terms without explanation. After the union filed an unfair labor practice charge over that conduct, the company cut off bargaining entirely for eight months, despite the union’s and the mediator’s attempts to schedule sessions.

That dispute was resolved through an informal settlement in which Sutphen agreed to bargain in good faith going forward. The judge found the company instead continued the same pattern after the settlement. It was slow to resume meeting, made regressive proposals once bargaining restarted (including cutting its own earlier wage offer and adding a sweeping “act of God” exception that could gut a staffing guarantee), and withdrew a staffing proposal after the union lobbied the local city council, which the judge found was retaliatory. The company also twice refused to turn over information the union was entitled to for bargaining purposes and unlawfully stopped paying health insurance premiums for employees once they went on strike, since those premium payments were an accrued benefit under the expired contract rather than something tied to the strike.

The judge also found that the resulting employee strike, which ran from May 2025 until February 2026, was an unfair labor practice strike because the company’s unlawful conduct was at least a contributing cause.

As a remedy, the judge ordered Sutphen to bargain with the union for a minimum number of hours each month until an agreement or lawful impasse is reached, to file regular bargaining progress reports, to turn over the previously withheld information, to reimburse the union for bargaining expenses and strike-related assistance it provided to employees, and to make whole any employees who lost health insurance coverage during the strike.

Significant Cases Cited

• Hawaiian Telcom, Inc., 365 NLRB 348 (2017): An employer unlawfully withholds accrued benefits from striking employees when a contract’s broad eligibility clause entitles all employees to the benefit without a time-in-service requirement.

• NLRB v. Great Dane Trailers, 388 U.S. 26 (1967): Set out the framework for assessing whether an employer’s denial of benefits to strikers is unlawful, including when conduct is inherently destructive of employee rights.

• Atlanta Hilton & Tower, 271 NLRB 1600 (1984): Bargaining in good faith requires a sincere purpose to find a basis of agreement, and mere pretense at negotiation does not satisfy the NLRA.

• Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001): An inference of bad-faith bargaining is warranted where an employer’s proposals, taken as a whole, would leave the union and employees with substantially fewer rights than they would have without any contract.

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): An employer must provide, upon request, relevant information a union needs to properly perform its duties as the collective-bargaining representative.

Metro One Loss Prevention Services Group (Guard Division NY) Inc., 375 NLRB No. 61, 29-CA-387808 (Published Board Decision)

Metro One Loss Prevention Services Group (Guard Division NY) Inc. was found to have unlawfully refused to bargain with Local One Security Officers Union, which had been certified as the exclusive bargaining representative of a unit of fire life safety directors at the company's Staten Island, New York facilities.

The company admitted that it had refused to recognize and bargain with the union, but it did so only to challenge the validity of the underlying certification. It argued that the Acting Regional Director for Region 22 erred by overruling its election objection without holding a hearing. The Board found that this issue, along with all other representation issues the company raised, had already been fully litigated in the prior representation case and that the company offered no newly discovered evidence or special circumstances that would justify revisiting that decision. Citing Pittsburgh Plate Glass Co. v. NLRB, the Board held that such issues are not properly relitigated in an unfair labor practice proceeding.

The Board also rejected several of the company's affirmative defenses. It dismissed the claim that the complaint failed to state a claim, noting the company's own admission that it refused to bargain. It rejected, as unsupported and without merit, the company's argument that the charge was barred by the six-month statute of limitations in Section 10(b), since the charge was filed well within that window. It likewise rejected the company's bare assertion that Board administrative law judges are unconstitutionally insulated from removal, finding no evidence that the company suffered any harm from that arrangement.

Having granted summary judgment, the Board found that the company violated Section 8(a)(5) and (1) of the NLRA and ordered it to bargain with the union on request, to sign any agreement reached, and to post and distribute a remedial notice to employees. The Board also adjusted the certification year to run from the date the company actually begins bargaining in good faith, consistent with its standard remedy in refusal-to-bargain cases. Member Prouty, dissenting in part on remedy, stated he would have imposed additional remedies, including make-whole relief for provable economic harm, on-site union access, a bargaining schedule, and a longer notice-posting and reading requirement, based on his earlier dissent in Longmont United Hospital.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding cannot be relitigated in a later unfair labor practice case absent newly discovered evidence or special circumstances.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Establishes that the certification year begins when the employer actually starts bargaining in good faith, not from the date of certification, when the employer has unlawfully delayed bargaining.

• Biewer Wisconsin Sawmill, Inc., 306 NLRB 732 (1992): An employer's admission that it refused to bargain in order to test a union's certification supports a finding of an 8(a)(5) violation notwithstanding other denials in its answer.

• Wolf Creek Nuclear Operating Corp., 366 NLRB No. 30 (2018): An employer's admitted refusal to bargain to test certification means the complaint states a claim upon which relief can be granted.

• SJT Holdings, Inc., 372 NLRB No. 82 (2023): A constitutional challenge to ALJ removal protections fails without a showing that the respondent suffered actual harm from those protections.

Little Foundation for the Rehabilitation of Alcoholics, D/B/a Alina Lodge, JD-69-26, 22-CA-358049 (ALJ Decision)

An administrative law judge ruled that a New Jersey substance abuse treatment center illegally fired two employees who led a union organizing campaign, and ordered the facility to recognize and bargain with the union without an election.

The judge found that the Little Foundation for the Rehabilitation of Alcoholics, doing business as Alina Lodge, violated the NLRA when it laid off Edward Hilbrich and Anne Piazza within hours of them delivering a union recognition petition to a senior vice president and asking the company to voluntarily recognize the union. Both employees had served as lead organizers for the Health Professionals and Allied Employees, AFT/AFL-CIO, openly collecting authorization cards from coworkers for months before their firings.

The judge credited testimony that management knew about the organizing campaign well before the layoffs, pointing to a supervisor's angry outburst about an employee "trying to unionize my staff" and to a company director's admission that the campaign was common knowledge among management. He rejected as not credible the testimony of two managers who claimed they learned of the union activity only after the firings.

Alina argued the layoffs were driven by financial necessity, but the judge found this reasoning pretextual. An expert witness testified that the layoffs had only a minimal effect on the company's finances, since payroll costs actually rose by $580,000 in the following year even as the company claimed to be cutting costs. The judge also noted that Alina's stated reasons for the firings shifted repeatedly, from vague complaints about the employees not fitting the company culture, to budgetary reasons, to performance and seniority, which further suggested the explanations were not genuine. He also drew an adverse inference from the company's failure to call the executive who made the final layoff decision to testify.

The judge separately found that severance agreements offered to the laid-off workers violated the law because their non-disparagement and confidentiality clauses were overly broad and had no time limit, following the standard set in McLaren Macomb.

Applying the framework from NLRB v. Gissel Packing Co., the judge concluded that a bargaining order was warranted rather than a new election. He found that firing the two lead organizers was a "hallmark violation" carried out by top company officials almost immediately after the recognition demand, that news of the firings spread quickly through the workforce, and that the union's support collapsed afterward as employees grew fearful of retaliation. Because the union had already demonstrated majority support among employees before the unlawful conduct occurred, the judge determined that a fair election was no longer possible and that the employees' prior preference for the union would be better protected by requiring the company to bargain directly.

The decision orders Alina Lodge to reinstate Hilbrich and Piazza with backpay, rescind the unlawful severance provisions, recognize and bargain with the union, and have the remedial notice read aloud to employees by senior management.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established that a bargaining order may be imposed without an election when an employer's unfair labor practices make a fair election unlikely, provided the union once had majority support.

• Wright Line, 251 NLRB 1083 (1980): Set out the burden-shifting framework for determining whether an adverse employment action was unlawfully motivated by protected activity.

• McLaren Macomb, 372 NLRB No. 58 (2023): Held that severance agreements with overly broad, indefinite non-disparagement or confidentiality clauses violate the NLRA.

• Kentucky River Community Care v. NLRB, 532 U.S. 706 (2001): Clarified the standard for determining supervisory status under Section 2(11), including what counts as exercising independent judgment.

• Starbucks Corp., 374 NLRB No. 10 (2024): Addressed the role of high-level management involvement and its coercive impact in assessing the appropriateness of a bargaining order.

Friends of New York Transit Museum, 29-UC-387687 (Regional Election Decision)

A regional director of the National Labor Relations Board has resolved a dispute over which job classifications belong in a bargaining unit at the Friends of the New York Transit Museum, the nonprofit affiliate of the New York Transit Museum in Brooklyn.

After District Council 37, AFSCME was certified as the bargaining representative for a unit of museum educators, visitor experience facilitators, and marketing coordinators, the union filed a petition asking that five additional job classifications be added to the unit. The employer opposed adding any of them, arguing that three were supervisors under the NLRA and therefore excluded from collective-bargaining protections, and that a fourth handled confidential information.

The regional director found that Family and Access Programs Assistant Managers and School Youth and Group Programs Coordinators should be added to the unit. Neither position could hire, fire, discipline, or make binding scheduling decisions over other employees, since their recommendations could be and sometimes were overruled by higher-level managers. The director noted that job descriptions listing these positions as supervisors amounted only to "paper authority," which is not enough to establish supervisory status under the Act. Both positions also shared enough in common with unit employees, such as shared supervisors, shared workspace, and regular interaction with museum educators, to establish a community of interest.

By contrast, the director found that Registrars and Rights and Reproduction Specialists should remain excluded from the unit because they did not share a community of interest with unit employees. These positions worked in different locations, reported to different supervisors, performed different tasks, and had little meaningful interaction with unit employees.

The Development Coordinator was also excluded. The director rejected the employer's argument that the position was confidential, noting that although the coordinator had access to sensitive information like donor records and salaries, nothing showed the position assisted with formulating or implementing labor relations policy, which is required for confidential status under the Act. The Development Coordinator still fell outside the unit, however, because he worked in a separate office, had different wages and benefits, and had no functional overlap with unit employees.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Established that supervisory status requires possessing one of the enumerated statutory powers, exercising independent judgment, and acting in the employer's interest, and that the party asserting supervisory status bears the burden of proof.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified that judgment is not "independent" when it follows detailed instructions or when the correct choice is obvious, but considering employees' skills or training in work assignments can constitute independent judgment.

• NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981): Approved the "labor nexus" test for determining confidential employee status under the Act.

• MV Transportation, Inc., 373 NLRB No. 8 (2023): Clarified that unit clarification petitions addressing classifications that voted subject to challenge use the same standard that would have applied had the issue been litigated before the election.

• Hausner Hard-Chrome of KY, Inc., 326 NLRB 426 (1998): Held that authority to evaluate employees' performance is insufficient to establish supervisory status when the evaluations are not shown to directly or systematically affect raise or promotion decisions.

Greco Steel Products, Inc., 06-RC-350334 (Regional Election Decision)

The case centered on a challenge to a union election at an iron works company, where the employer argued the vote should be set aside because a local union official had promised an employee a fee waiver to reinstate his union membership. The Board had sent the case back to determine a narrow question: whether that official, Rich Danko of Local 3, was acting as an agent of the International Union, the Petitioner, when he made the promise.

The employee testified that he called Danko because someone had told him Danko was the person to contact about restoring his suspended union book. During that call, Danko promised a waiver of the reinstatement fee. The employee could not say who had directed him to call Danko, and no one asked him to clarify. There was no evidence Danko identified himself as speaking for the International Union, and no evidence that similar promises were made at any organizing meetings the International Union held at Local 3’s facility, including one meeting Danko briefly attended.

Applying common law agency principles, the Regional Director found the employer had not met its burden of proving Danko had actual or apparent authority to act on the International Union’s behalf. There was no showing the International Union directed or authorized Danko to make the promise, and no evidence of any statements by the International Union that would have led the employee to reasonably believe Danko was authorized to speak for it on this issue. Because international unions are not automatically liable for the conduct of their locals, and the vague, unrebutted testimony did not fill that gap, the objection to the election was overruled. The International Union was certified as the exclusive bargaining representative of the unit, with crane operators’ ballots remaining challenged pending resolution of their eligibility.

Significant Cases Cited

• Carbon Fuel Co. v. Mine Workers, 444 U.S. 212 (1979): International unions are not liable for the conduct of their local unions based solely on the relationship between them.

• Millard Processing Services, 304 NLRB 770 (1991): The party asserting an agency relationship bears the burden of proving it, and sets out the test for apparent authority.

• Sunset Line & Twine Co., 79 NLRB 1487 (1948): Established that the burden of proving agency status rests on the party claiming the agency relationship exists.

• NLRB v. Donkin’s Inn, 532 F.2d 138 (9th Cir. 1976): Apparent authority requires a manifestation by the principal that gives a third party a reasonable basis to believe the agent is authorized to act.

• Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988): Both required conditions for apparent authority, a manifestation by the principal and a reasonable belief by the third party, must be satisfied together.

Peoples Natural Gas Company, LLC, 06-RC-392467 (Regional Election Decision)

A regional director has directed a self-determination election to allow five Measurement, Control and Communications Technicians employed by Peoples Natural Gas Company to decide whether to join an existing 900-person bargaining unit represented by Utility Workers Union of America Local 612.

The union sought to add the technicians, who install, maintain, and repair SCADA equipment that allows remote monitoring and control of gas pressure and valves throughout the company's service area in western Pennsylvania, to its existing unit of service, maintenance, and technical employees. The company opposed the petition, arguing the technicians did not share a sufficient community of interest with unit employees.

Applying the Board's Armour & Co. and Globe Machine & Stamping Co. framework, the director first found the technicians form a distinct, identifiable voting group because they make up an entire department with common supervision, even though the group is small. She then turned to whether they share a community of interest with the existing unit, weighing factors including departmental organization, supervision, skills and training, interchange, job overlap, contact with unit employees, functional integration, and terms and conditions of employment.

Several factors were found neutral or only slightly weighed against a shared community of interest, including separate departmental organization and supervision (given that the existing unit itself contains diverse subgroups with different supervisors and functions), the technicians' specialized electronics skills, and the absence of interchange between the groups. Bargaining history was deemed irrelevant since the technicians had never been represented.

The director found that employee contact, functional integration, and similar terms and conditions of employment weighed in favor of a shared community of interest. She noted the technicians spend 20 to 25 percent of their time working at the same locations as unit employees, particularly Station Engineers and GM&R Technicians, and that their work is interdependent: Station Engineers rely on the technicians to repair the computer controls that operate compressor stations, and various installation and repair tasks require both groups to complete sequential steps using each other's work. She rejected the company's argument that sequential rather than simultaneous work shows an absence of integration, finding instead that such sequential dependency is itself evidence of functional integration. The technicians also receive comparable hourly pay, similar home-start arrangements including company vehicles and equipment, and use the same timekeeping system as unit employees, with differences in benefits attributed to collective bargaining and given little weight.

Weighing all factors together, the director concluded the technicians share a sufficient community of interest with the existing unit and ordered a secret-ballot election to be held on October 26, 2026, allowing them to choose whether to be represented by the union.

Significant Cases Cited

• Armour & Co., 40 NLRB 1333 (1942): Established, along with Globe Machine, the doctrine allowing an incumbent union to add unrepresented employees to its unit through a self-determination election.

• Warner-Lambert Co., 298 NLRB 993 (1990): Held that petitioned-for employees may be added to an existing unit if they constitute an identifiable, distinct voting group and share a community of interest with unit employees.

• Wheatland Electric Coop., Inc., 357 NLRB No. 16 (2026): Set out the multi-factor community-of-interest test for self-determination elections and clarified that functional integration exists where employees must work together and depend on one another.

• Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Held that diversity within an existing unit is relevant and reduces the weight given to differences in departmental organization or specialized skills of petitioned-for employees.

• Public Service Co. of Colorado, 365 NLRB 1017 (2017): Held that differences in terms and conditions of employment resulting from collective bargaining are entitled to little weight in the community-of-interest analysis.

DP World Contract Logistics US Inc., 07-RC-358624 (Regional Election Decision)

A regional director has directed that a secret ballot election be held among employees of DP World Contract Logistics US Inc. at its Detroit facility, allowing workers to choose between representation by the UAW, by Local 299 of the Teamsters, or no union at all. The election was scheduled for October 19, 2026, with two voting windows at the facility's cafeteria.

The decision resolved a procedural dispute over whether the Teamsters local should be allowed into the case. After the local moved to intervene, the acting regional director granted that motion and asked both parties to brief the potential impact of Carlson Furniture Industries on the proceeding. Having reviewed those supplemental briefs, the regional director determined that the reasoning in her earlier September 14, 2026 decision still supported moving forward to an election, citing Dura Art Stone, Inc. in support of that conclusion.

The order also laid out the standard mechanics governing the vote: eligibility rules for current employees, strikers, and replacement workers; the employer's obligation to furnish a voter list in a specified format by October 2, 2026; and requirements for posting and electronically distributing notice of the election to employees. The order warned that failure to comply with the list and posting requirements could be grounds for setting aside the election if timely objections are filed, though a party responsible for its own noncompliance cannot rely on that failure as a basis for objection.

Significant Cases Cited

• Carlson Furniture Industries, 157 NLRB 851 (1966): Addressed the standard for allowing a rival union to intervene in a representation proceeding.

• Dura Art Stone, Inc., 340 NLRB 977 (2003): Supported proceeding to an election despite questions about the composition or participation of parties in the case.

City of Fenton, 07-WH-382442 (Unpublished Board Decision)

The Board certified the Police Officers Labor Council as the bona fide representative, for purposes of Section 7(b) of the Fair Labor Standards Act, of a unit of certified Sergeants, Lieutenants, and the Dispatch Supervisor employed by the City of Fenton. The Petitioner had filed its request with Region 7, and the Regional Director’s investigation confirmed that the Petitioner is already recognized as the unit’s exclusive collective-bargaining representative under a current agreement running from July 2024 through June 2028. After the Regional Director issued a Notice to Show Cause and no party responded, the Board found no basis to deny the request and issued the certification. The decision notes that this FLSA certification does not by itself establish the union’s right to recognition as exclusive bargaining representative under the NLRA.

Significant Cases Cited

• County of Alameda, 322 NLRB 614 (1996): A certification of a union as bona fide for FLSA Section 7(b) purposes does not establish the union’s right to recognition as exclusive bargaining representative under the NLRA.

International Brotherhood of Electrical Workers, Local Union 557 (Hiring Hall/Multiemployer), JD-67-26, 07-CB-347313 (ALJ Decision)

An administrative law judge found that an IBEW local union violated the NLRA when it refused to recognize a member's resignation, then disciplined and fined him for working as a non-union electrical contractor afterward.

Troy Lapine, a member of Local Union 557, International Brotherhood of Electrical Workers in Saginaw, Michigan, told the union's business manager, Evan Allardyce, in April 2024 that he was starting his own non-union electrical business. Lapine followed up with an email stating he was resigning his membership effective that day. Allardyce told Lapine weeks later that an emailed resignation was not sufficient and that the union required a signed, written resignation to guard against fraud. The union then filed internal charges against Lapine for violating its working agreement, constitution, and bylaws by performing non-union work, and ultimately fined him more than $6,000.

The judge rejected the union's position that its unwritten signature requirement was a legitimate anti-fraud measure, noting that in practice the union never checked signatures against any exemplar and simply relied on personal familiarity with members who dropped off resignations in person. Because that signature requirement served no real verification purpose and was never written down or disclosed to Lapine until after he had already emailed his resignation, the judge found Lapine's email was an effective resignation. Citing Pattern Makers League v. NLRB, the judge explained that once a resignation is effective, a union's power to discipline a former member for later conduct ends. The judge also found insufficient evidence that Lapine's pre-resignation non-union work exceeded the kind of minor side jobs the union had long tolerated among its members, undermining the union's alternative argument that the discipline was justified by conduct predating the resignation.

The judge did, however, dismiss separate allegations that the union unlawfully threatened Lapine with loss of benefits if he did not remain a member or become a signatory contractor, finding that the union's warnings about losing pension, health, and scholarship-related benefits were adequately grounded in objective facts rather than being unsubstantiated threats. A claim that the union continued collecting dues from Lapine after his resignation was also dismissed for lack of evidence.

As a remedy, the union was ordered to honor Lapine's resignation, expunge the internal charges and fines from its records, reimburse any fines paid with interest, make Lapine whole for any resulting financial losses, and post a notice to members describing the violations.

Significant Cases Cited

• Pattern Makers League v. NLRB, 473 U.S. 95 (1985): Union members are traditionally free to resign and thereby escape future union discipline.

• United Automobile, Aerospace and Agricultural Workers Local 148 (Douglas Aircraft, McDonnell-Douglas), 296 NLRB 970 (1989): A rule requiring members to submit written resignations to a designated officer is lawful because it serves the legitimate purpose of maintaining accurate membership records.

• NLRB v. Granite State Joint Board, 409 U.S. 213 (1972): Once a member lawfully resigns from a union, the union's power over that person ends.

• Carpenters Union Local 180 (Condiotti Enterprises, Inc.), 328 NLRB 947 (1999): A union's statement that resignation would cause loss of benefits violates Section 8(b)(1)(A) absent evidence the statement was a truthful prediction with a reasonable factual basis.

• NLRB v. Constr. & Gen. Laborers' Union Local No. 534, 778 F.2d 284 (6th Cir. 1985): A union that merely and objectively informs employees of consequences beyond its control is not making an unlawful threat.

Clinicas De Salud Del Pueblo, Inc., D/B/a Innercare, JD(SF)-18-26, 21-CA-344340 (ALJ Decision)

An administrative law judge found that a community health system operating as InnerCare committed numerous violations of the NLRA during a union organizing campaign by SEIU United Healthcare Workers-West at its clinics across Imperial and Riverside Counties in California.

The judge found that the company unlawfully discharged five employees because of their union activity or, in one case, because of a spouse's union activity. The judge rejected the company's stated reasons for these terminations, including accessing confidential financial information, time theft, and food theft, finding each to be pretextual. The judge pointed to shifting and exaggerated testimony from HR officials, a never-disseminated and inconsistently applied "zero tolerance" policy, after-the-fact investigative summaries, and far more lenient treatment of other employees who committed comparable or worse infractions. The judge also found Ascolani was unlawfully demoted and that telehealth technician Maabel Quevedo's travel assignments were unlawfully curtailed because of her union activity, though the judge declined to find her ultimate termination unlawful, concluding the company proved she would have been fired regardless based on a documented history of attendance and performance problems.

Separately, the judge found several standalone violations of Section 8(a)(1), including unlawful interrogations of employees about their union sympathies, an instruction to an employee to remove union flyers from his desk while others kept personal items, a manager's statement suggesting an employee's job depended on the election outcome, creation of an impression of surveillance, and an unlawful instruction barring an employee from arriving early to distribute literature.

On the representation case, the judge declined to issue a bargaining order under either Cemex Construction Materials Pacific, LLC or NLRB v. Gissel Packing Co., finding the General Counsel failed to prove the union actually held majority support in the stipulated bargaining unit because the vast majority of electronically submitted authorization cards were not properly authenticated. The judge also found the company's misconduct, while serious, was not pervasive enough across the roughly 463-employee unit to meet the stringent standard for a Gissel category I order. However, the judge found that the unfair labor practices required setting aside the July 2024 election result and ordered a second election, along with a notice-reading remedy to counteract the lingering coercive effects of the unlawful conduct.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Established the standards under which the Board may issue a bargaining order as a remedy for employer misconduct that undermines a fair election, including the "category I" and "category II" frameworks.

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Set forth the Board's current framework for when a bargaining order is warranted when an employer declines to recognize a card-majority union and instead commits unfair labor practices during the representation process.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing mixed-motive discrimination claims under Section 8(a)(3), requiring the General Counsel to show protected activity, employer knowledge, and animus before the burden shifts to the employer.

• Rossmore House, 269 NLRB 1176 (1984): Set forth the totality-of-circumstances test, including the Bourne factors, for evaluating whether employer questioning of employees constitutes unlawful interrogation.

• NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962): Addressed the standards for crediting witness testimony and resolving credibility disputes in Board proceedings.

Professional Transportation, Inc. (PTI), 13-RC-388027 (Regional Election Decision)

A regional director dismissed a union petition seeking to represent drivers at a trucking company, finding that the proposed unit covered only a fraction of a longstanding nationwide bargaining unit already represented by another union.

The Petitioner, United Electrical, Radio and Machine Workers of America, filed to represent drivers at roughly 72 of the employer's locations, estimating about 989 employees. The employer, Professional Transportation, Inc., and the incumbent union, United Professional & Service Employees Union Local 1222, argued that this unit was far too narrow because their collective bargaining agreement covered a single nationwide unit of drivers spanning approximately 170 locations and over 1,700 employees, with only limited exceptions for locations represented by other unions.

The regional director reviewed the bargaining history between the employer and the Intervenor, which dated back to 1999 and included contract language recognizing the Intervenor as the exclusive bargaining representative for drivers at all of the employer's locations nationwide, aside from specific carve-outs. The most recent agreement, running from 2023 through 2026, continued this nationwide recognition structure and had been ratified by the full nationwide unit.

The Petitioner argued that some locations included in the employer's larger unit count had been unlawfully added through improper recognition of the Intervenor, and asked for a hearing to prove this. The regional director rejected this argument, explaining that allegations of unlawful recognition amount to unfair labor practice claims that cannot be litigated or resolved in a representation case hearing, and noting that the Petitioner offered no specifics about which locations or how many employees were supposedly affected.

The regional director also addressed whether the case should be analyzed as a unit merger issue under NBC Universal Media LLC, agreeing with the Petitioner that it should not, since there was no dispute about two separate units merging. Rather, the only question was which locations fell within the single, already-established nationwide unit.

Because the existing nationwide unit was found to be the only appropriate unit, and it was substantially larger than what the Petitioner had calculated, the Petitioner's showing of interest fell well short of the 30 percent threshold required to proceed to an election. The regional director declined to allow time to cure the deficiency given its scale, and ordered the petition dismissed.

Significant Cases Cited

• NBC Universal Media LLC, 369 NLRB No. 134 (2020): Addresses the standard for analyzing whether separate bargaining units have merged into a single unit.

• Sewell-Allen Big Star, Inc., 294 NLRB 312 (1989): The Board allowed a unit to stand even after the employer had granted unlawful voluntary recognition outside the Section 10(b) limitations period.

• Pearl Packing Co., 116 NLRB 1489 (1957): Establishes that a petitioner must show interest from 30 percent of employees in the appropriate unit to support a representation petition.

• S. H. Kress & Co., 137 NLRB 1244 (1962): Reaffirms the 30 percent showing of interest requirement for representation petitions.

Chicago Historical Society, 13-UC-365716 (Regional Election Decision)

A regional director has ordered an existing bargaining unit at the Chicago History Museum, represented by Chicago History Museum Workers United, AFSCME Council 31, to be expanded to include six job classifications whose eligibility had been left unresolved after an earlier election.

The classifications at issue, Lead Building Maintenance Technician, Lead Cashier, Digital Humanities Fellow, Photographer Imaging Specialist, Bar Services Supervisor, and Accounting Coordinator, had voted under challenge in an April 2025 election because the museum and the union disagreed over whether they belonged in the unit. The museum later withdrew its objections to three of those roles. That left three disputed positions for a December 2025 hearing: the Lead Building Maintenance Technician and Lead Cashier, which the museum claimed were supervisors exempt from coverage under Section 2(11) of the NLRA, and the Accounting Coordinator, which the museum argued was a confidential employee.

The regional director found the museum failed to prove any of the three exclusions applied. On the Lead Building Maintenance Technician, the evidence showed the role had been vacant and, when filled, performed only routine prioritization of maintenance tasks using an employer-set rating scale, without real authority to hire, discipline, assign overtime, or be held accountable for a coworker's performance. The Lead Cashier similarly lacked proven authority over hiring, discipline, work assignment, or responsible direction of staff; testimony about participating in interviews or disciplinary meetings was either unsupported by concrete examples or contradicted on cross-examination.

On the Accounting Coordinator, the director found no evidence the position assisted anyone who formulates or effectuates labor relations policy, since that role belonged to the chief financial officer rather than the coordinator's direct supervisor. The coordinator's exposure to attorney invoices during contract negotiations was limited to checking dates and totals for accuracy, not learning the substance of bargaining strategy, so it did not meet the standard for confidential status, consistent with the Board's reasoning in The Washington Post Co.

Because the museum, as the party asserting the exclusions, bore the burden of proof and failed to meet it, the petition to clarify the unit was granted and all six classifications were added to the certified bargaining unit description.

Significant Cases Cited

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): The burden of proving supervisory status rests on the party asserting it, and any one of the Section 2(11) indicia, exercised with independent judgment, is sufficient to establish supervisory status.

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined "independent judgment" and "assign" and "responsibly direct" for purposes of determining supervisory status under Section 2(11).

• NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981): Affirmed the two-prong test for confidential employee status, based on confidential labor relations work or access to advance bargaining information.

• The Washington Post Co., 254 NLRB 168 (1981): Held that an accounts payable employee's access to invoices from labor counsel did not make the employee confidential.

• MV Transportation, Inc., 373 NLRB No. 8 (2023): Unit clarification petitions are the proper vehicle to resolve the status of nondeterminative challenged voters left unresolved after certification.

Subscribe now

On the union side, Weinberg has more than three times as many cases as the second-place firm. On the employer side, there is a noticeable Big Three of Littler Mendelson, Jackson Lewis, and Ogletree Deakins.

Starbucks Corporation, JD-66-26, 12-CA-358230 (ALJ Decision)

An administrative law judge has ruled that Starbucks violated the NLRA by cracking down on facial piercings at a unionized Tallahassee, Florida store without first bargaining with the union over the change.

The case centered on Store 8804, where baristas and shift supervisors have been represented by Workers United since 2022, though the parties had not yet reached a first contract. Starbucks’ companywide employee handbook has long limited workers to one facial piercing no larger than a dime, but the judge found that this rule simply was not enforced at Store 8804 for years. A barista named Emma Sainsbury testified, largely without contradiction, that she and several coworkers wore multiple piercings openly from 2021 through mid-2024, and submitted photos backing up her account. None of the store’s several managers over that period had ever told her to remove a piercing.

That changed in July 2024, when Jennifer Benoit took over as temporary store manager and began enforcing the one-piercing rule, coaching employees and posting reminders about the dress code. When a shift supervisor warned a worker that she could be sent home without pay for noncompliance, employees fell in line and removed their extra piercings. The company never notified or bargained with the union before making this change.

The judge concluded that this shift amounted to an unlawful unilateral change to a mandatory subject of bargaining under the Act, following the reasoning of a recent Board decision involving a Starbucks store in Jantzen Beach, Oregon, where stricter dress code enforcement after unionization was similarly found unlawful. The judge rejected Starbucks’ argument that the case was different because no employee was formally disciplined, noting that employees only avoided discipline because they complied under threat of being sent home. The judge also rejected the company’s claim that the piercing rule was not a significant enough change to trigger bargaining obligations, pointing to the Board’s implicit endorsement of that kind of enforcement change as material in the Starbucks Corp. Jantzen Beach case.

As a remedy, the judge ordered Starbucks to rescind the enforcement change, bargain with the union before altering terms and conditions of employment at the store, and post a notice to employees describing their rights.

Significant Cases Cited

• NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer violates its bargaining duty by making unilateral changes to mandatory subjects of bargaining without first notifying and bargaining with the union.

• Starbucks Corp., 374 NLRB No. 130 (2026): Held that Starbucks unlawfully changed a mandatory subject of bargaining by more strictly enforcing its dress code at a newly unionized store without bargaining, even though the change stemmed from stricter enforcement of an existing written policy rather than a new rule.

• 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020): Addresses discretionary discipline issued under an existing policy or practice, which the Board found did not apply where the real issue was a change in enforcement practice itself.

• Print Fulfillment Services, LLC, 361 NLRB 1243 (2014): Held that an employer need not actually enforce a new or stricter policy for a bargaining violation to be found; unilaterally imposing the changed policy is enough.

• ABC Automotive Products Corp., 307 NLRB 250 (1992): Held that merely announcing a unilateral change, even without implementing it, violates the Act because it damages the bargaining relationship by signaling the employer will set terms unilaterally.

B.N.F. Painting, LLC, 357 NLRB No. 60, 09-CA-318278 (Published Board Decision)

The Board affirmed an administrative law judge's finding that a Cincinnati painting contractor unlawfully fired an employee for discussing wages and unlawfully maintained overbroad confidentiality and conduct rules in its employee manual.

The case arose after Christopher Hauser, a painter for B.N.F. Painting, discussed his wages with coworkers on two occasions in the fall of 2022. Shortly after the second conversation, company managers texted Hauser that he was being let go because "we heard that you had talked about how much money we are paying you and we can't have that here," though the company later told him it was a layoff due to lack of work. The judge found this explanation pretextual, pointing to management's repeated statements that wage discussions caused disgruntlement among employees, the timing of the discharge immediately after the wage discussion, and the absence of solid evidence that a genuine work shortage drove the decision. The judge also found the company unlawfully threatened employees over wage discussions and maintained handbook rules defining "confidential information" to include compensation data and employee conversations, as well as conduct rules barring "boisterous" behavior and "insubordination," all of which employees could reasonably read as restricting their right to discuss working conditions.

On review, B.N.F. Painting argued that the judge improperly allowed the General Counsel to amend the complaint at the start of the hearing to add the work-rule allegations, and that the judge should have granted its motion to dismiss those allegations because the General Counsel failed to introduce the handbook rules into evidence during her main case. The Board acknowledged that the General Counsel gave the company only minimal notice of the amendment and failed to meet her evidentiary burden at the close of her case-in-chief, as required under Yale University. Still, the Board found no abuse of discretion in allowing the amendment, noting the company did not seek a continuance, and held that the judge was permitted under Federal Rule of Civil Procedure 52(c) to defer ruling on the dismissal motion until issuing her final decision, at which point the full record supported the violations. Member Prouty concurred separately, taking narrower grounds and emphasizing that the General Counsel was not obligated to justify the timing of her amendment request.

The Board ordered reinstatement and backpay for Hauser, rescission of the unlawful handbook provisions, and the posting of a notice to employees.

Significant Cases Cited

• Yale University, 330 NLRB 246 (1999): To defeat a motion to dismiss at the close of the General Counsel's case-in-chief, the General Counsel must present evidence sufficient to establish a prima facie unfair labor practice.

• Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): Sets out the burden-shifting framework for determining whether an adverse employment action was motivated by protected activity.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Reestablished that work rules are evaluated from the perspective of a reasonable employee economically dependent on the employer who contemplates engaging in protected activity.

• Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004): Set out factors for determining when a facially neutral work rule unlawfully restricts Section 7 rights.

• Lafayette Park Hotel, 326 NLRB 824 (1998): Held that work rules are evaluated based on whether they would reasonably tend to chill employees in exercising their Section 7 rights.

Anodyne Coffee, LLC, 18-UC-373464 (Regional Election Decision)

The Regional Director issued an order clarifying the bargaining unit at Anodyne Coffee, LLC's Milwaukee-area locations to resolve a question left open when the union was first certified.

The underlying certification, issued in September 2025, recognized the Milwaukee Area Service and Hospitality Workers Union as the bargaining representative for baristas, barista leads, shift supervisors, event staff, factory production employees, shipping and delivery employees, and warehouse leads across the company's four locations. At the time, the parties disagreed about whether market education leads and assistant general managers (also called café assistant managers or assistant manager/MITs) belonged in the unit. Because those employees' votes were not decisive in the election, the dispute over their classification did not need to be resolved before certification, so they were allowed to vote subject to challenge while the question remained open.

After the Board denied the employer's request for review of the certification in June 2026, the union filed a petition seeking to formally include the market education lead and assistant general manager classifications in the unit. The parties then reached a joint stipulation agreeing that both classifications should be included, and they asked the Regional Director to clarify the unit on that basis without a hearing, waiving their rights to a hearing and to seek review of the clarification decision.

Based on that stipulation, the Regional Director ordered the certified unit amended to include market education leads and assistant general managers alongside the previously recognized classifications, while continuing to exclude office clerical employees, sales employees, managerial employees, guards, and statutory supervisors.

MultiCare Tacoma General Hospital, 19-UC-392166 (Regional Election Decision)

A regional director dismissed a petition to clarify a nurses' bargaining unit after finding that the parties' own stipulated election agreement already resolved the dispute.

The case grew out of a representation election for Registered Nurse Case Managers at MultiCare Tacoma General Hospital. When the union sought to represent that classification, the parties signed a stipulated election agreement describing the unit as case managers "employed by the Employer under the MultiCare Tacoma General Hospital license." A dispute later arose over whether that language also covered case managers working at Allenmore Hospital, a separate facility that operates under the same state license as Tacoma General. The union argued the parties had agreed to include the Allenmore employees, pointing to an email exchange where its attorney proposed the "license" language specifically to capture them. The employer disputed that it had been told the purpose of the change and maintained the agreement's reference to employees "employed by the Employer" meant only those employed by Tacoma General itself. Case managers at Allenmore ultimately voted subject to challenge, but their ballots were not outcome determinative, and the union was certified for the Tacoma General unit.

The union then filed a unit clarification petition asking that the Allenmore case managers be formally added to the unit. Applying the Board's framework for interpreting stipulated election agreements, the regional director first asked whether the agreement's language was unambiguous. He found that it was: the employer named in the agreement was MultiCare Tacoma General Hospital, described as operating "an" acute care hospital, and the unit was limited to employees "employed by the Employer." Nothing in the agreement referenced Allenmore Hospital, and the fact that both facilities shared a single state license did not change who the "Employer" was under the contract's own terms. Because the agreement was unambiguous, there was no need to look at extrinsic evidence of the parties' intent or to apply the Board's community-of-interest test.

The decision relied heavily on a similar federal appeals court case involving a stipulated agreement that defined "employer" as a specific corporate entity, excluding employees of a related but separate subsidiary. Just as that agreement's defined term controlled regardless of the parties' later disputes about intent, the regional director concluded that the stipulated agreement here controlled, and it did not include RN Case Managers working for or operating out of Allenmore Hospital. The petition was dismissed.

Significant Cases Cited

• Caesars Tahoe, 337 NLRB 1096 (2002): Sets out the three-part test for resolving disputes over stipulated election agreements, first looking to whether the agreement is unambiguous, then to extrinsic evidence of intent, and finally to the community-of-interest test.

• National Labor Relations Board v. Arrmaz Products Inc., 123 F.4th 1295 (11th Cir. 2024): Enforced a Board order finding a stipulated election agreement unambiguously excluded employees of a related subsidiary because the agreement's defined term "employer" named only the parent company.

Lancaster Coffee Company, 357 NLRB No. 58, 03-CA-306479 (Published Board Decision)

The Board reversed an administrative law judge’s finding that one employee, among a group of four coworkers at a small Lancaster, New York coffee shop, had voluntarily quit his job rather than being unlawfully discharged.

The case grew out of a dispute between employees and the café’s owner over working conditions, including a faulty door lock, gas leaks, pest problems, and inconsistent pay. After raising these issues without success, a group of employees, including Samantha Godus, Quinn Schuster, Alyssa Battenfield, and Reese Fiato, staged a work stoppage and asked to meet with the owner, Tracy Diegelman, to discuss their concerns. Diegelman declined to attend the meeting and instead sent her boyfriend, Frank Amodio, to confront the group, demand their keys, and escort on-duty employees to their cars. Amodio physically restrained one employee and grabbed another by the throat. Diegelman later removed the group from the work schedule, changed the locks, and threatened them with arrest for trespassing if they returned.

The judge found that the Respondent unlawfully discharged Godus, Battenfield, and Fiato in retaliation for their protected concerted activity, along with related violations including physical restraint, creating an impression of surveillance through a “SMILE you’re on CAMERA” sign, and threats of arrest. But the judge excluded Schuster from these findings, concluding that statements Schuster made during the standoff, that he was “done” and would leave his key on the counter, showed he had resigned.

The Board disagreed. It explained that an employer claiming an employee abandoned their job bears the burden of producing unequivocal evidence of intent to permanently sever the employment relationship, citing Atlantic Scaffolding Co. The Board found that Amodio’s demand for the employees’ keys, made as part of a retaliatory scheme approved by Diegelman, meant Schuster’s decision to leave his key could not be treated as clear evidence of a voluntary resignation. The Board also found the judge mischaracterized Schuster’s hearing testimony, which explained in retrospect why he never returned to work (he felt unsafe, assumed he’d been fired, and had been threatened with arrest), as if it were a statement made at the time he left his key. Finally, the Board noted that Diegelman never solicited Schuster to return to work and instead sent him a letter threatening arrest, which undercut any claim of abandonment.

As a result, the Board found that the café unlawfully discharged Schuster, removed him from the schedule, and locked him out, just as it had with the other three employees, and ordered the same remedies, including reinstatement and backpay, for all four.

Significant Cases Cited

• Atlantic Scaffolding Co., 356 NLRB 835 (2011): An employer asserting job abandonment by employees engaged in a work stoppage must present unequivocal evidence of the employee’s intent to permanently sever the employment relationship.

• L.B.&B. Associates, Inc., 346 NLRB 1025 (2006): Defined the “unequivocal evidence” standard employers must meet to establish that an employee resigned rather than was discharged.

• NLRB v. Augusta Bakery Corp., 957 F.2d 1467 (7th Cir. 1992): Confirmed that an employer bears the burden of presenting unequivocal evidence of a striker’s intent to permanently sever employment in order to establish job abandonment.

• NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962): Established that a concerted work stoppage by employees protesting working conditions is protected activity under the NLRA.

• Thryv, Inc., 372 NLRB No. 22 (2022): Held that make-whole remedies for unlawful discharges must include compensation for all direct or foreseeable pecuniary harms, not just backpay.

Bluefield Hospital Company, LLC D/B/a Bluefield Regional Medical Center and Its Single and/or Joint, 357 NLRB No. 59, 10-CA-153544 (Published Board Decision)

The Board resolved a dispute over backpay owed to eight nurses who were discriminated against, ruling on which parts of the employer's defense could go forward to a hearing and which were resolved in the General Counsel's favor without further proceedings.

The case traces back to a settlement in which the employer, Bluefield Regional Medical Center, agreed it had violated the NLRA by unlawfully discharging the nurses. A federal appeals court enforced that order in 2020. The parties could not agree on how much backpay was owed, so the matter returned to the Board through a compliance proceeding.

The General Counsel asked the Board to grant summary judgment on many of the specification's allegations, arguing the employer's answers were too vague or amounted to improper general denials under the Board's rules, which require respondents to specifically explain any disagreement with backpay figures and provide supporting detail.

The Board granted summary judgment on several points the employer had effectively admitted or that improperly attempted to relitigate remedies already set by the enforced court order, including allegations about adverse tax consequences from lump-sum backpay payments.

But the Board denied summary judgment on the central disputes. It found the employer raised a genuine factual issue over whether backpay calculations should include wage increases, since the employer pointed to employment agreements it says did not guarantee such increases. The Board also found the employer's general denials about interim earnings and interim retirement benefits were adequate because that information was not within the employer's own knowledge, consistent with Board precedent that a respondent is not required to detail facts only the discriminatee or a third party would know. Various other allegations tied to these disputed figures were also sent back for hearing because they depend on resolving the wage-increase and interim-earnings questions first.

The Board further denied the employer's request to strike part of the General Counsel's reply brief, treating it as an improper surreply. The case was remanded to the Regional Director in Region 10 to schedule a hearing before an administrative law judge limited to the specific allegations where summary judgment was denied.

Significant Cases Cited

• M&M Affordable Plumbing, Inc., 365 NLRB 546 (2017): A general denial is sufficient to warrant a hearing on backpay issues that are not within the respondent's own knowledge, such as interim earnings.

• Alaris Health at Harborview, 371 NLRB No. 68 (2022): Specification allegations that are "dependent" on other adequately denied allegations should also be sent to hearing rather than resolved by summary judgment.

• Tel Data Corp., 315 NLRB 364 (1994): If an employer proves a discriminatee engaged in unprotected misconduct for which any employee would have been discharged, backpay is cut off as of the date the employer learned of the misconduct.

• 1621 Route 22 West Operating Co., LLC d/b/a Somerset Valley Rehabilitation, 371 NLRB No. 86 (2022): Summary judgment was properly denied where the employer disputed whether a specific pay increase should be included in gross backpay.

• Fugazy Continental Corp., 260 NLRB 1225 (1982): General denials on interim earnings are sufficient to require a hearing because net backpay calculations are directly dependent on interim earnings data.

Commercial Steel Treating Corporation, JD-64-26, 07-CA-328161 (ALJ Decision)

An administrative law judge found that a Madison Heights, Michigan metal heat-treating company violated the NLRA in a series of disputes with the union representing its production and maintenance workers before the company closed its facility in 2024.

The judge ruled that the company's associate handbook contained several unlawfully broad rules, including restrictions on employee access to the premises during non-work hours, bans on solicitation, distribution, and "campaigning" without management permission, limits on cell phone and camera use that were not confined to work time or work areas, a vague prohibition on "distracting" demonstrations, and a rule barring removal of company records or job-related information from the premises. The judge also found that an acknowledgment form employees were required to sign unlawfully shortened the time employees had to pursue monetary remedies after filing labor board charges. Separately, the judge declined to find two other handbook provisions, covering posting on bulletin boards and disclosure of confidential business information, to be unlawful.

The judge also found that the company unlawfully told the union chairman, Christopher Combs, not to discuss his demotion and pay rate with the union or coworkers after demoting him from a maintenance position, and that it later threatened employees with discharge if they refused to sign the handbook acknowledgment form. The company was found to have unlawfully bypassed the union by asking employees directly to sign the acknowledgment form and by unilaterally imposing that requirement without bargaining.

On the plant closing, the judge found the company unlawfully dealt directly with employees by announcing the closure and a severance offer without first notifying the union, and that it failed to bargain in good faith over the effects of the closing. The company had initially promised four weeks of severance pay to employees who stayed until closure, then withdrew that offer during bargaining and proposed only to pay out already-contractually-owed vacation time. The judge characterized this as a regressive, retaliatory bargaining tactic that, combined with the company's hostile reaction to the union's grievances, showed bad faith. The company's bargaining representatives also lacked authority to modify the proposal, which further undermined any claim of genuine negotiation.

As a remedy, the judge ordered the company to bargain with the union over the effects of the closure and to pay backpay to former unit employees under the formula used in Transmarine Navigation Corp., along with rescinding the unlawful acknowledgment form and posting a notice to employees.

Significant Cases Cited

• Tri-County Medical Center, 222 NLRB 1089 (1976): Set the standard for evaluating rules restricting off-duty employees' access to employer property.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Established the current two-part test for determining whether facially neutral work rules are unlawfully overbroad.

• Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004): Held that work rules are unlawful on their face if they explicitly restrict Section 7 activity.

• Permanente Medical Group, 332 NLRB 1143 (2000): Set out the three-factor test for finding unlawful direct dealing between an employer and union-represented employees.

• Transmarine Navigation Corp., 170 NLRB 389 (1968): Established the backpay remedy formula used when an employer fails to bargain over the effects of a plant closure.

United Parcel Service, JD-65-26, 10-CA-338971 (ALJ Decision)

An administrative law judge found that United Parcel Service unlawfully maintained two policies that barred employees from wearing union insignia on company-issued safety vests, ruling that the restrictions went further than needed to protect any legitimate business interest.

The case arose from a dispute involving Evette Avery, a longtime UPS package car driver and union steward at the company's Atlanta hub. Avery began wearing a dark-colored safety vest bearing her Teamsters local's logo in place of the company-issued yellow-green vest, and later switched to a union-provided steward vest in the same yellow-green color as UPS's approved vest but marked with the word "STEWARD" and the local's logo. After a new division manager took over the facility and tightened enforcement of uniform rules, UPS told Avery she could not wear either vest and eventually disciplined her, including a brief discharge that was reduced to a warning through the grievance process, for continuing to wear the steward vest.

UPS argued the case was barred by a prior Sixth Circuit ruling, United Parcel Service v. NLRB, which upheld the company's right to restrict union pins under its customer-facing uniform policy. The judge rejected that argument, finding the earlier case addressed a materially different situation, drivers' required customer-facing uniforms, rather than the optional safety vests worn in the yard and hub that are not required on delivery routes.

The judge also declined to defer most of the case to the parties' grievance settlements, reasoning that while Avery's individual discipline had been resolved through arbitration, no grievance settlement had addressed the broader legality of the policies themselves. However, the judge did defer the claim that the policies were enforced disparately against Avery, since that issue was adequately resolved through the grievance process under the standards set in Spielberg Mfg. Co. and Olin Corp.

On the merits, the judge applied the Board's balancing test from Republic Aviation Corp. v. NLRB, which presumes restrictions on union insignia are unlawful unless an employer shows special circumstances justifying them. UPS argued its "8 Rules of Yard Control" policy, requiring unaltered, UPS-issued safety vests in the yard, was necessary to preserve the vests' visibility for safety purposes. The judge agreed that darker, non-UPS vests reduced visibility and could lawfully be banned, but found no evidence that the modest union lettering and logo on the yellow-green steward vest meaningfully diminished its visibility or caused any distraction.

As for UPS's broader Uniform Standards policy, which also covers drivers' customer-facing routes, the judge acknowledged UPS's legitimate interest in presenting a neat, recognizable image to customers but found the company failed to show that any actual disruption or customer complaints resulted from employees wearing union-marked vests. Because UPS already allows a small union-issued pin and a steward button, and presented no evidence of harm from Avery's vest, the judge concluded the broader ban was not narrowly tailored and therefore unlawful.

The judge ordered UPS to rescind both policies, post a remedial notice, and provide employees with revised materials reflecting the changes, while dismissing the disparate-enforcement allegation under the deferral doctrine.

Significant Cases Cited

• Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established the foundational balancing test weighing employees' right to wear union insignia against an employer's right to maintain discipline and production.

• United Parcel Service v. NLRB, 41 F.3d 1068 (6th Cir. 1994): Upheld UPS's right to restrict union pins under its customer-facing uniform policy based on the company's interest in presenting a neat, recognizable public image.

• Tesla, Inc., 371 NLRB No. 131 (2022): Held that restrictions on union insignia must be justified by legitimate business interests that outweigh employees' Section 7 rights and must be narrowly tailored.

• Spielberg Mfg. Co., 112 NLRB 1080 (1955): Set forth the standard for Board deferral to grievance arbitration settlements where proceedings were fair, parties agreed to be bound, and the result was not repugnant to the Act.

• In-N-Out Burger, Inc., 365 NLRB No. 471 (2017): Found a rule prohibiting uniformed, customer-facing employees from wearing union pins to be unlawful absent special circumstances.

Colorado Coalition for the Homeless, 27-RC-391415 (Regional Election Decision)

A regional director for the NLRB has ruled that housing assistance employees at a Denver homeless services nonprofit cannot be added to an existing bargaining unit of supportive services employees through a self-determination election, because the two groups do not share a sufficient community of interest.

The case arose after a union sought to expand a previously certified unit of Housing Supportive Service Department employees, such as case managers and behavioral health clinicians, to include Housing Navigators, Housing Specialists, and Administrative Assistants from the separate Housing Assistance Department. The two departments perform different functions for the same clients: the Housing Assistance Department helps clients find housing and administers government vouchers, while the Housing Supportive Service Department provides ongoing social services like healthcare access and food assistance, sometimes starting before a client even moves in.

Applying the multi-factor community of interest test from United Operations, Inc., the regional director weighed organization, supervision, interchange, contact, skills and functions, functional integration, and terms and conditions of employment. The decision found that the two departments are organized separately, do not share supervisors at the first or second levels, and have no temporary or permanent interchange of employees. It also found that the departments require different skills and job functions, with Housing Assistance Department roles requiring no formal education while some Housing Supportive Service Department roles, like behavioral health clinicians, require a master's degree and licensure. Functional integration was found to be limited to a few narrow contexts, such as a small housing assistance team working on a research grant program and periodic tenant conferences involving both departments.

Although the regional director found that terms and conditions of employment, such as shared benefits, similar hours, and a common work site, along with frequent work-related contact between the groups, favored finding a shared community of interest, these factors were outweighed by the lack of common organization, supervision, interchange, and similar skills. Citing Casino Aztar for the principle that the degree of interchange, contact, and functional integration matters more than shared supervision alone, the regional director concluded the petitioner failed to establish a sufficient community of interest. As a result, the Housing Assistance Department employees will instead vote in a standalone unit on whether to be represented by Service Employees International Union, Local 105.

Significant Cases Cited

• Warner-Lambert Co., 298 NLRB 993 (1990): Establishes that a self-determination election is the proper method for a union to add unrepresented employees to an existing bargaining unit.

• United Operations, Inc., 338 NLRB 123 (2002): Sets out the multi-factor test for community of interest, including organization, skills, functional integration, contact, interchange, terms of employment, and supervision.

• Casino Aztar, 349 NLRB 603 (2007): Holds that the degree of interchange, contact, and functional integration matters more than whether employee groups share common supervision.

• Hilton Hotel Corp., 287 NLRB 359 (1987): Holds that frequent interchange between employee groups may suggest blurred departmental lines and a fluid workforce with comparable skills.

• Seaboard Marine, 327 NLRB 556 (1999): Holds that the Board will not approve fractured units that are too narrow in scope or lack a rational basis.

Nitro Construction Services, 09-CA-313196 (Unpublished Board Decision)

The Board declined to reconsider its earlier decision or reopen the record in this case. The charging party had asked the Board to revisit its prior ruling and take additional evidence, but the Board found no material error or extraordinary circumstances that would justify reconsideration under its procedural rules, and no valid basis for reopening the record either.

The Board noted that some of the charging party's arguments improperly tried to expand on the General Counsel's theory of the case, which a charging party is not permitted to do. It also found that arguments not raised earlier before the judge or the Board had been waived and could not now support a request for reconsideration or reopening the record. Finally, the Board explained that the request to reopen the record and for a rehearing rested on points it had already considered and rejected in its original decision, so there was nothing new to warrant revisiting the matter.

Significant Cases Cited

• Hobby Lobby Stores, Inc., 363 NLRB 1965 (2016): A charging party cannot enlarge upon or change the General Counsel's theory of a case.

• H&M Int'l Transportation, 363 NLRB 1861 (2016): Issues not previously urged before the judge or the Board are deemed waived.

• Raven Government Services, 336 NLRB 991 (2001): A motion for reconsideration will be denied to the extent it attempts to relitigate issues already decided.

United Food and Commercial Workers Local 7, AFL-CIO, 375 NLRB No. 55, 27-CA-298239 (Published Board Decision)

The Board found that a local union violated the NLRA in its dealings with the staff union representing its own employees, affirming most of an administrative law judge's findings while reversing one key conclusion about a car allowance reduction.

The case arose from a bitter relationship between United Food and Commercial Workers Local 7 and the Federation of Agents and International Representatives (FAIR), which represents Local 7's own staff. Following a contentious bargaining session in June 2022, Local 7 abruptly ordered its FAIR-represented employees to turn in their laptops, phones, keys, and credit cards within hours, citing fear of a possible strike. The Board agreed with the judge that this unilateral, discriminatory confiscation violated the law, rejecting Local 7's argument that it was simply protecting its property.

The Board also upheld findings that Local 7 unlawfully stopped following the contractual grievance procedure after the collective-bargaining agreement expired, insisted on a nonmandatory bargaining proposal (removing certain secretaries from the bargaining unit) as a condition of reaching a contract, and bargained in bad faith overall. Separately, the Board agreed that Local 7's president unlawfully told employees frustrated after a grueling strike that they should quit if they couldn't handle the job, unlawfully disparaged FAIR to employees, and unlawfully claimed the grievance procedure no longer existed.

Breaking from the judge, the Board found that Local 7 also violated the law by unilaterally cutting the in-town car allowance in 2022. The judge had found FAIR waived its right to bargain over the reduction based on years of past practice, but the Board disagreed, reasoning that the parties had never previously faced a decrease in the allowance, so the practice of accepting unilaterally calculated increases did not clearly establish that FAIR gave up its right to bargain over a decrease. The Board held that waiver cannot rest on such ambiguous evidence.

The Board upheld the dismissal of claims that Local 7 unlawfully interrogated and fired employee Elizabeth Wesley, agreeing she was a managerial employee, by virtue of her seat on Local 7's executive board, and therefore outside the Act's protections.

As remedies, the Board ordered backpay for the car allowance reduction and credit card-related expenses, reimbursement of FAIR's bargaining expenses incurred due to the bad-faith bargaining, and the standard cease-and-desist and bargaining orders, while declining to require that the notice be read aloud to employees.

Significant Cases Cited

• NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958): An employer may not condition agreement on mandatory bargaining subjects on the union's acceptance of a nonmandatory (permissive) proposal.

• Smurfit-Stone Container Enterprises, 357 NLRB 1732 (2011): A party precludes good-faith bargaining when it insists on a nonmandatory proposal as the price of reaching an agreement.

• MV Transportation, Inc., 368 NLRB No. 66 (2019): Established the "contract coverage" standard for determining whether a collective-bargaining agreement permits an employer's unilateral action.

• Starbucks Corp., 373 NLRB No. 123 (2024): Employer statements suggesting that employees dissatisfied with working conditions should quit rather than pursue union activity are unlawful.

• Johnson-Bateman Co., 295 NLRB 180 (1989): Waiver of a statutory bargaining right through bargaining history requires that the matter be fully discussed and consciously explored, with the union clearly and unmistakably yielding its interest.

American Tower Corporation, 375 NLRB No. 50, 13-CA-326591 (Published Board Decision)

The Board adopted an administrative law judge's findings that American Tower Corporation violated the NLRA by impliedly threatening employees with discharge for engaging in protected concerted activity and by maintaining a confidentiality agreement that barred employees from discussing their pay. The Board ordered the company to rescind or revise the agreement, cease the unlawful conduct, and post a notice to employees at its Schaumburg, Illinois facility.

The underlying dispute centered on Michael Hoffman, a longtime operational site lead who had pushed management for higher wages and lighter workloads and later told supervisors he might organize a union. After the company reorganized duties so that Hoffman would have to work directly with a construction manager he had clashed with years earlier, Hoffman resisted confirming he would cooperate, and the company fired him in August 2023. The General Counsel alleged the discharge itself violated the Act, but the judge found Hoffman had not shown the required link between his protected activity and the firing, concluding the company would have discharged him regardless because of his refusal to commit to working with the construction manager and prior complaints about his conduct. Neither the Board majority nor the General Counsel filed exceptions challenging that part of the ruling, so the Board did not revisit the discharge question on its merits, and the dismissal of that allegation stood.

Member Prouty dissented from the portion of the decision implicitly left undisturbed regarding the discharge, arguing that the record, including an admission by Hoffman's former supervisor that Hoffman was fired for union activity, the suspicious timing of the termination, and shifting explanations offered by the company, demonstrated that Hoffman was unlawfully discharged for his union and protected concerted activity.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by antiunion animus.

• Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Held that evidence of animus must also establish a causal nexus between an employee's protected activity and the employer's adverse action.

• Intertape Polymer Corp., 372 NLRB No. 133 (2023): Clarified that Tschiggfrie did not alter the General Counsel's evidentiary burden under Wright Line.

• Stericycle, Inc., 372 NLRB No. 113 (2023): Set the framework for evaluating whether workplace rules unlawfully interfere with employees' Section 7 rights, including the employer's burden to justify such rules.

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Recognized that an employer's free speech right to communicate with employees is constitutionally protected and cannot be infringed without justification.

S.R. Key Plumbing and Mechanical LLC, 375 NLRB No. 57, 10-CA-291436 (Published Board Decision)

The Board found that a plumbing contractor unlawfully refused to hire two union organizers but did not unlawfully discharge a third worker who had been caught up in a dispute over his union membership.

The case arose after the company, S.R. Key Plumbing and Mechanical, hired welder Jeffrey "Jace" Carr without knowing he was a union member. When the owner, Chet Key, learned of Carr's union ties, he told Carr in a series of phone calls that he could not work for the company while remaining associated with the union, and suggested Carr get written confirmation from the union that it was acceptable for him to keep the job. Carr never obtained that letter and left the jobsite, never returning. The Board majority (Chairman Murphy and Member Mayer) agreed with the administrative law judge that this did not amount to a constructive discharge, reasoning that Key never presented Carr with a "clear and unequivocal" choice between his job and his union membership, since Key left open the possibility that Carr could keep working there if the union signed off. The majority also found no evidence the company maintained a blanket rule barring union-affiliated workers, noting Key and a project manager framed the issue as the union's bylaws rather than company policy.

The Board did affirm findings that the company violated the NLRA by coercively questioning Carr about his union affiliation and threatening him with unspecified consequences for continuing to work there while keeping his union ties. It also upheld the finding that the company unlawfully refused to hire two other union organizers, Justin Johnson and Stephen Carey Tucker, when they applied during a period when the company had job openings, rejecting the company's argument that the two did not have a genuine interest in the jobs. The Board ordered the company to offer them employment, with backpay including compensation for job-search expenses regardless of interim earnings, consistent with its remedial approach in Thryv, Inc.

Member Prouty dissented in part, arguing that Carr was in fact constructively discharged. He wrote that Key's repeated statements, that he could not employ Carr while Carr remained a union member, created exactly the kind of illusory choice that the Board's precedent treats as an unlawful constructive discharge. Prouty also would have found that the company maintained an unlawful rule against hiring union-affiliated workers and would have imposed additional remedies, including a required compliance statement on job applications. He further urged the Board to overrule its decisions in Oil Capitol Sheet Metal and Toering Electric, which make it harder for union "salts" to recover full backpay and to prove discriminatory refusal-to-hire claims, arguing that organizers applying for jobs should be treated the same as any other job applicants under the NLRA.

Significant Cases Cited

• NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995): Confirmed that paid or unpaid union organizers ("salts") are employees covered by the NLRA with full Section 7 rights.

• Mercy Hospital, 366 NLRB No. 165 (2018): Held that a Hobson's choice constructive discharge requires conditioning continued employment on abandonment of Section 7 rights and a quit resulting from that condition.

• Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007): Eliminated the presumption that backpay runs indefinitely for union salt discriminatees, requiring the General Counsel to prove how long they would have stayed employed.

• Toering Electric Co., 351 NLRB 225 (2007): Placed the burden on the General Counsel to prove a salt applicant had a genuine interest in employment when the employer contests that interest.

• FES, 331 NLRB 9 (2000): Set out the burden-shifting framework for proving discriminatory refusal to hire under the NLRA.

Beatrice Loving Heart and Healthcare Agency Inc., 375 NLRB No. 56, 05-CA-301128 (Published Board Decision)

The Board found that a Maryland home care agency unlawfully fired an employee after she raised group concerns about training costs and a wage increase during a Zoom meeting with company managers.

Kirah Powell worked as a support planner for Beatrice Loving Heart and Healthcare Agency for about two months before she was terminated in August 2022. Before her firing, she had complained to coworkers and managers that the company's training was inadequate given that employees were required to repay $2,500 if they left within a year, and she had asked about a six percent wage increase that home health aides in Maryland had received. During a Zoom meeting on the day of her discharge, a compliance director told her that if she was so unhappy, she should quit, and another manager cut off the meeting and ended up firing her that night, citing reasons including Medicaid fraud and insubordination that were not mentioned in earlier communications.

The Board agreed with the administrative law judge that Powell's complaints about training and repayment costs qualified as protected concerted activity because she was voicing a shared concern raised by multiple coworkers, not just her own individual gripe. Under the standard from Meyers Industries, an employee's activity counts as concerted when it reflects a group complaint, even without formal authorization to speak for others. The Board found that the company's shifting and inconsistent explanations for the firing were pretextual, which under the Wright Line framework defeated any claim that Powell would have been fired regardless of her protected activity. The Board also found that the suggestion she quit if unhappy amounted to an unlawful implied threat of discharge, consistent with the Board's reasoning in Starbucks Corp.

Departing from the judge, the Board also found that a manager's statement during the meeting, that Powell could not share her own Employment Security Agreement because doing so would violate HIPAA, unlawfully restrained her from discussing her terms of employment with others, since nothing in the statement limited its scope to just that meeting.

The Board ordered reinstatement and full back pay for Powell, along with compensation for related financial harms, and set aside a separate allegation about the company's confidentiality policy for further review.

Significant Cases Cited

• Meyers Industries, 268 NLRB 493 (1984): An employee's activity is "concerted" when done with or on the authority of other employees, including bringing group complaints to management even without formal authorization to speak for the group.

• Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected activity.

• Starbucks Corp., 373 NLRB No. 123 (2024): Holds that telling employees to quit or seek work elsewhere in response to protected activity is an implicit, unlawful threat of discharge.

• Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Clarifies that activity satisfies the "mutual aid or protection" requirement when it seeks to improve terms and conditions of employment for a group of employees.

• Golden State Foods Corp., 340 NLRB 382 (2003): Holds that when an employer's stated reasons for an adverse action are shown to be pretextual, the employer fails by definition to establish it would have taken the same action absent the protected conduct.

Fred Meyer Stores, Inc., a Subsidiary of the Kroger Company, 375 NLRB No. 53, 19-CA-272795 (Published Board Decision)

The Board affirmed an administrative law judge's findings that Fred Meyer Stores and Quality Food Centers, both subsidiaries of The Kroger Company, unlawfully failed to bargain with United Food and Commercial Workers Local No. 21 before changing employees' terms and conditions of employment during the summer of 2020. The case arose after employees at several Washington stores began wearing "Black Lives Matter" and "BLM" buttons and face masks following the killing of George Floyd, a show of support that intensified after the companies' parent, Kroger, publicly embraced the Black Lives Matter movement. When Fred Meyer managers first barred the insignia at one store, and both companies later extended the ban to buttons issued by the Union itself, several employees were sent home, or effectively sent home, for refusing to remove the items.

The Board agreed that this enforcement, along with QFC's unrelated rollout of a new mask policy tied to COVID-19 precautions, amounted to unilateral changes in working conditions imposed without giving the Union notice or a chance to bargain, violating Section 8(a)(5) and (1) of the NLRA. It found that both companies had a long history of tolerating employees' informal customization of their uniforms with buttons, including messages supporting political and social causes, which undercut any claim that enforcing a stricter "authorized insignia only" rule was simply business as usual. The Board noted that sending employees home without pay for noncompliance made the change plainly significant.

Rather than resolve broader free-speech questions about whether BLM messaging was independently protected activity under Section 8(a)(1), the Board found it unnecessary to reach those issues because the bargaining violation alone fully supported the remedy. It ordered the companies to rescind the unlawful changes, bargain with the Union before making similar changes in the future, make affected employees whole for lost wages and other financial harms (including tax consequences from lump-sum backpay), and expunge disciplinary references from personnel files for the employees involved.

Significant Cases Cited

• Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Employees have a protected right to wear union and related insignia at work, and employer rules restricting that display are presumptively invalid absent special circumstances.

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Employee speech on political or social issues retains Section 7 protection for "mutual aid or protection" when it bears on employees' interests as employees, even if it also concerns broader societal issues.

• Albertson's, Inc., 319 NLRB 93 (1995): An employer's belated enforcement of a dress code provision against "unauthorized" insignia, after years of tolerating a wide variety of buttons, constitutes an unlawful unilateral change requiring bargaining.

• United Rentals, 350 NLRB 951 (2007): More stringent enforcement of an existing dress code policy, such as ending tolerance for certain informal attire, is a unilateral change subject to the duty to bargain.

• Thryv, Inc., 372 NLRB No. 22 (2022): Establishes that backpay remedies should include compensation for direct or foreseeable pecuniary harms beyond traditional lost wages.

In two prior pieces (I, II), I wrote about a case I have been working on where the California State University Employees Union (CSUEU) unilaterally extended the probationary period of one of its staff members. The staff member’s union, the United Auto Workers (UAW) Local 2350, grieved this action and then demanded arbitration over it. CSUEU refused to arbitrate. UAW filed a Section 301 lawsuit against CSUEU to secure an order requiring CSUEU to arbitrate. The parties eventually went to arbitration and the UAW prevailed: the arbitrator determined that CSUEU violated the parties’ collective-bargaining agreement (CBA) by extending the probationary period and ordered CSUEU to recognize the staff member as a permanent employee and provide make-whole monetary relief.

Arbitrator Opinion And Award

60KB ∙ PDF file

Download

Download

This was a fairly straightforward case. There was never any doubt that CSUEU was violating the CBA. This is what made the case so strange. It was immediately obvious that the UAW would prevail and that CSUEU was wasting a bunch of its members' money on pointless litigation.

The straightforward posture of the case presented another interesting possibility and first for me. By the time the arbitration rolled around, it seemed pretty likely that I would be able to call on AI to draft my brief.

I use AI quite a bit in and around my legal practice. I used it to help build NLRB Research, I sell a suite of AI skills that practitioners can use to quickly research labor law questions, and I use it to produce case summaries for this newsletter. But, for a variety of reasons, I’ve never used it to help generate any sort of significant legal writing such as a brief. I have found it to be useful as an editor for such legal writing. But generating the legal writing in the first instance is a different, more complicated, matter.

Subscribe now

This arbitration had some unique features that made me think it was worth a shot:

1. The case was entirely based on documentary evidence. The CBA is a document. The decision to extend the probationary period was submitted via email. The grievances and arbitration demands were also submitted by email.

2. The parties had already gone through a federal lawsuit over the question of whether CSUEU was required to arbitrate the grievance. The lawsuit resulted in a docket of complaints, motions, exhibits, and so on that overlapped with the arbitration.

3. The parties agreed to a stipulated record in the case. This means there was no hearing, no transcript, or anything like that. The record consisted of a short statement of mutually-agreed facts and a PDF containing 18 joint exhibits.

4. It was a simple contract interpretation case in a labor arbitration. This means it was not really necessary to cite any case law. The arbitrator could just read the CBA and determine what it said about our case.

Given my extensive experience with AI, it was pretty clear to me that, in these circumstances, if you pointed an AI harness at a case file that contained all of these documents, it should be able to draft a decent arbitration brief. So I prompted Claude Code running Fable 5.1 to do so and it did. The resulting brief was not perfect. In general, I’d say it had a tendency of being too exhaustive, meaning that, by default, it would include every conceivable argument. Some lawyers do this, but it is not my style. Of course, it was easy enough to read the brief and prompt the AI harness to cut out stuff I didn’t think was necessary and to make other desired changes.

Below is the brief that I submitted.

UAW 2350 Arbitration Brief

131KB ∙ PDF file

Download

Download

One thing I want to highlight in this brief are the citations. There are over 80 citations to the stipulated record and five citations to Elkouri’s How Arbitration Works. These citations were all written by the AI harness. I simply converted the stipulated record and How Arbitration Works into clean markdown files with all of the pagination clearly indicated so that the LLM could bring them into context and cite them accurately. Once the brief was cleaned up, I had the AI harness create a JSON inventory of every single citation in the document and then spawn subagents with clean context windows to double-check every single citation against the source.

As noted already, we won the case. The main reason for this is because we were clearly in the right, not because this arbitration brief is especially brilliant. But the AI brief was clearly adequate for the task. And there are a lot of legal tasks like this where AI writing will be adequate, so long as it is being managed and supervised by someone who has the necessary legal and technical abilities. This is not total automation of legal work. But it is much more efficient legal work that generates the same outcomes in a fraction of the time.

Starbucks Corporation, 375 NLRB No. 49, 18-CA-298181 (Published Board Decision)

The Board found that Starbucks violated the NLRA during a union organizing campaign at its West Allis, Wisconsin store, but reversed several violations an administrative law judge had found.

A district manager and a store manager made unlawful statements to employees during one-on-one conversations and group "captive audience" meetings held in June and July of 2022. The Board agreed with the judge that the managers unlawfully solicited employee grievances by inviting complaints and offering to fix them during mandatory meetings, which amounted to an implied promise to remedy those grievances if workers rejected the union. The Board also agreed that managers unlawfully threatened the loss of benefits, including a previously announced medical travel benefit and a dress code change, by telling employees these improvements could not take effect because of the union petition. A separate violation was upheld for a store manager's statement to an employee that a planned pay raise would be lost.

However, the Board reversed findings that the store manager's statements that she would personally leave the company if the store unionized amounted to threats of more onerous working conditions. The Board held these comments were lawful expressions of personal opinion under Section 8(c) of the NLRA, since the manager merely described her own future plans based on past experience with a union, without threatening any employer-imposed reprisal. The Board distinguished the ALJ's cited precedent, Gunderson Rail Services, LLC and Beverly Enterprises, finding neither involved a comparable backdrop of mass layoffs or pervasive unlawful conduct. The Board also reversed the finding that the manager's isolated remark calling an employee "aggressive" was unlawful, concluding it was a passing reflection of her subjective perception rather than a coercive statement.

Member Prouty dissented in part, arguing the majority ignored the totality of circumstances, including the timing of the statements relative to union activity, the one-on-one settings, and the managers' seniority, which he argued would lead a reasonable employee to view the "leaving the store" and "aggressive" comments as coercive threats tied to other unlawful statements made in the same conversations.

The Board also declined to apply new standards from recent decisions addressing captive-audience meetings and statements about the employer-employee relationship, since those rulings were issued after briefing closed and were given only prospective effect.

Significant Cases Cited

• Children's Center for Behavioral Development, 347 NLRB 35 (2006): An employer may criticize or disparage a union without violating the NLRA as long as its opinion does not threaten employees or interfere with their rights.

• Gunderson Rail Services, LLC, 364 NLRB 279 (2016): A supervisor's statement that organizing activity "made things worse," made in the context of explaining a mass layoff, violated the NLRA.

• Beverly Enterprises, 310 NLRB 222 (1993): A vice president's statement that things would get worse if employees voted for the union was an unlawful coercive threat.

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Statements must be judged from the perspective of an economically dependent employee, considering the tendency to interpret implied threats, and predictions of unionization's effects must be based on objective fact.

• Tri-Cast, Inc., 274 NLRB 377 (1985): An employer may lawfully tell employees that their direct relationship with management will change if they unionize, without this being an unlawful threat.

Starbucks Corporation, 375 NLRB No. 48, 19-CA-293492 (Published Board Decision)

The Board found that Starbucks unlawfully forced out a Seattle shift supervisor who was active in her store's union organizing drive, affirming most of an administrative law judge's findings but narrowing the basis for liability.

Myra Maza had worked at the Eastlake Avenue store since 2015 and had previously been permitted to limit her availability to one day a week while she held a second job. After Maza and a coworker told the store manager in March 2022 that employees intended to seek a union election, the Respondent reversed course: it told Maza she had to be available more than one day a week, and when she said she could not meet that requirement because of her other job, it stopped scheduling her entirely. She went unscheduled for three months before resigning in July 2022.

The Board agreed with the judge that this amounted to an unlawful constructive discharge under Section 8(a)(3) and (1). It rejected the company's claim that it was simply enforcing a neutral availability policy, noting that the store's business needs had stayed essentially the same since 2020, when Maza's reduced schedule had been allowed. Applying the Wright Line burden-shifting framework, the Board concluded the stated business justification was pretextual and that the real reason for cutting Maza's hours was her union activity.

The Board did part ways with the judge on one point: it reversed the finding that the company's threats to impose stricter availability rules and discharge Maza over them were an independent violation of Section 8(a)(1), concluding instead that those threats were simply the mechanism of the constructive discharge rather than a separate unlawful act. Member Prouty dissented on this point, arguing the threats were independently coercive under Starbucks Corp. and Polynesian Hospitality Tours regardless of the later discharge.

The Board also upheld the dismissal of claims involving a second employee, Lindsey Price, finding the company proved it would have fired her regardless of union activity because she seriously violated safety protocols by entering the store alone after finding signs of a break-in rather than calling police.

As a remedy, the Board ordered Maza's reinstatement with backpay and compensation for other financial harms tied to her job search and tax consequences from a lump-sum award, consistent with its approach in Thryv, Inc.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected union activity.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the standard make-whole remedy to include compensation for other direct or foreseeable pecuniary harms beyond lost wages, such as job search expenses.

• Crystal Princeton Refining Co., 222 NLRB 1068 (1976): Sets out the two-part test for finding a constructive discharge, requiring proof that burdens imposed on an employee were intended to force resignation and were motivated by protected activity.

• Polynesian Hospitality Tours, 297 NLRB 228 (1989): Held that an employer's threats of termination can be an independent violation of the Act even when a subsequent discriminatory discharge also occurs.

• Starbucks Corp., 373 NLRB No. 53 (2024): Found that an employer violated Section 8(a)(1) by threatening stricter enforcement of work rules and termination because of employees' union activities.

Everon, LLC, 357 NLRB No. 52, 01-RD-379428 (Published Board Decision)

The Board denied requests for review filed by both the employer and the union seeking to challenge a regional director's decision to block a decertification election. The Acting Regional Director had placed the petition in abeyance while the Board investigated several pending unfair labor practice charges, including allegations of bad-faith bargaining during the certification year. The majority found no substantial issues warranting review, concluding that the regional director had acted consistently with the Board's blocking-charge policy and that at least some of the charges alleged conduct inherently inconsistent with the petition itself.

Member Mayer wrote separately to raise concerns about the adequacy of the blocking letter. He noted that the letter failed to specify which allegations formed the basis for blocking the election, whether the charges were the kind that could interfere with a fair election or were instead inconsistent with the petition, or why charges from 2024 regarding alleged refusal to hire union "salts" would affect an election that already occurred in December 2024. He argued that the Board should require regional directors to identify the specific allegations relied upon in blocking determinations and to classify them accordingly, though he concurred in denying review for institutional reasons while leaving the door open to revisit the issue later.

Significant Cases Cited

• Mark Burnett Productions, 349 NLRB 706 (2007): Established that the Board reviews a regional director's decision to block an election under an abuse-of-discretion standard.

Lone Spur Cafe Queen Creek LLC, 375 NLRB No. 51, 28-CA-284166 (Published Board Decision)

The Board granted the General Counsel's motion for default judgment against a Queen Creek, Arizona restaurant operator after the company failed to comply with an informal settlement agreement it had reached to resolve unfair labor practice charges.

The charges stemmed from two separate incidents. In September 2021, employees Michael Houtz, Karen Houtz, and Jennifer Standage raised concerns about unsafe working conditions and staged a work stoppage. Managers responded by threatening employees with discharge over the protest, and the company fired all three. The company had also issued an overly broad directive requiring employees to discuss issues with management only in a "professional manner," adopted in response to the employees' protected activity. Separately, in June 2022, employee Jon Kyle Taulton and coworkers raised concerns about problems with their pay, including issues with direct deposit. A manager responded by threatening employees with discharge and reprisals, characterizing their complaints as insubordination, and the company then fired Taulton.

The company and the charging parties settled the case in January 2024, with the company agreeing to post notices, pay backpay and other compensation to the affected employees, and take other remedial steps. When the company failed to follow through, the Regional Director gave notice of the breach and an opportunity to cure, as the settlement agreement required. After further unsuccessful attempts to secure compliance, including the company's claim that it had ceased operations, the Regional Director reissued the complaint and the General Counsel sought default judgment.

Because the company did not respond to the Board's notice to show cause, the Board treated all allegations in the complaint as admitted, consistent with the terms of the settlement agreement and the Board's precedent in U-Bee, Ltd. The Board found that the company violated Section 8(a)(1) of the NLRA through its threats, discharges, and overbroad rule, and ordered it to comply with the unmet terms of the settlement: mailing notices to employees, paying backpay and related compensation with interest, providing neutral references, and removing references to Taulton's discharge from its files. The General Counsel did not request a "full remedy" despite being entitled to seek one under the settlement's default provision, and the Board, citing Benchmark Mechanical, Inc. and Opal Care, LLC, declined to order one on its own.

Significant Cases Cited

• U-Bee, Ltd., 315 NLRB 667 (1994): Establishes that when a respondent defaults on a settlement agreement's noncompliance terms, the allegations of the resulting complaint are deemed admitted as true.

• Benchmark Mechanical, Inc., 348 NLRB 576 (2006): Supports the principle that the Board will not grant a remedy broader than what the General Counsel actually requested.

• Opal Care, LLC and Ruby Care LLC d/b/a Emerald Nursing & Rehabilitation Center, 368 NLRB No. 103 (2019): Reinforces that the Board will not sua sponte expand a remedy beyond what was sought by the General Counsel.

Richard Grubb and Associates, 22-RC-391825 (Regional Election Decision)

The regional director directed an election among archeological field technicians and crew chiefs at a cultural resources management firm, rejecting the employer's arguments that both groups should be excluded from the proposed bargaining unit.

The employer had argued that crew chiefs were statutory supervisors under Section 2(11) of the NLRA because they assigned work, directed field technicians, could discipline or discharge them, effectively recommended hiring and rehiring decisions, and adjusted grievances. The director found the employer's evidence too vague and unsupported by specific examples to meet its burden on any of these grounds. Crew chief assignments were deemed routine, limited to telling technicians where to dig based on a predetermined project plan, which did not require independent judgment. The chiefs' direction of field work was similarly governed by detailed project plans, an employee manual, and government regulations, leaving little room for discretion. Claims about disciplinary authority, including vague references to "immediate dismissal" or "corrections," lacked documentation or concrete examples. Testimony that crew chiefs' input was nearly decisive in rehire decisions was undercut by the absence of detailed evidence about specific cases. The director concluded the crew chiefs functioned as working foremen rather than supervisors, citing Greenhorne & O'Mara, a similar case involving archeological crews, and other precedent such as Oakwood Healthcare and Golden Crest Healthcare Center.

On the second issue, the employer contended field technicians were casual, on-call workers lacking a community of interest with the regular workforce and therefore ineligible to vote. The director applied the Board's traditional Davison-Paxon formula, under which intermittent employees are eligible if they averaged four or more hours of work per week over the preceding quarter, finding it appropriate given evidence of recurring project-based employment, a continuing pool of technicians drawn on repeatedly, and substantial hours logged by many workers over multiple years. The director found technicians and crew chiefs shared similar pay, training, and working conditions, and noted instances of overlap between the classifications. Disputes over whether any specific laid-off technician retained a reasonable expectation of recall were left to be resolved through the Board's challenge procedure at the election itself.

The director ordered a mail-ballot election, given the geographically dispersed nature of the workforce across several states, with ballots to be mailed in October 2026 and counted in November.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the Board's framework and definitions for determining supervisory status under Section 2(11), including the meanings of "assign" and "independent judgment."

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Held that the party asserting supervisory status bears the burden of proof and that independent judgment can be diminished by detailed employer rules.

• Greenhorne & O'Mara, Inc., 326 NLRB 514 (1998): Found that archeological crew chiefs performing similar duties were not statutory supervisors and could be grouped with field technicians in a bargaining unit.

• Davison-Paxon Co., 185 NLRB 21 (1970): Established the standard formula for determining voting eligibility of intermittent or on-call employees based on average weekly hours worked.

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Held that secondary indicia of supervisory status cannot establish such status absent proof of a primary indicium, and that routine authority like verifying timecards does not establish supervisory authority.

The Book Rescuers, JD-62-26, 12-CA-360500 (ALJ Decision)

An administrative law judge dismissed most of the allegations against a used bookstore in Largo, Florida, after finding that an employee fired for discussing wages with coworkers was not engaged in protected concerted activity.

The bookstore terminated Charlee Howard in February 2025. The company claimed it fired her for improperly accessing a coworker’s pay information on the owner’s computer, but the judge rejected that explanation as not credible, pointing to inconsistent testimony from the owners and the lack of any contemporaneous documentation of the stated reason. Instead, the judge found that Howard was actually fired for talking to other employees, including Logan Davis and Emily Butrick, about pay rates in an effort to show that she herself was underpaid.

Despite finding that explanation pretextual, the judge still ruled against Howard on the core claim because her wage discussions were not “concerted” activity protected by the NLRA. Citing the Board’s standard from Myers Industries, the judge explained that Section 7 protects employees who act with or on behalf of coworkers, not those raising purely personal grievances. Howard admitted her concern was only about her own pay and never proposed any group action or tried to recruit coworkers to jointly pursue a change in wages or working conditions. The judge distinguished this case from Board precedent finding wage discussions “inherently concerted,” noting that in those cases employees were making common cause with one another, which did not happen here.

The judge did find one narrow violation. After firing Howard, store co-owner Sarah Stewart told her she should not have discussed wages with other employees and should have brought concerns directly to the owners instead. The judge credited Howard’s testimony on this point, finding it corroborated by text messages sent immediately afterward, and concluded that this statement unlawfully suggested employees could not discuss pay with each other, violating Section 8(a)(1). The remedy ordered is limited to a cease-and-desist order and a posted notice; the broader wrongful-termination claim was dismissed.

Significant Cases Cited

• Myers Industries (Myers I), 268 NLRB 493 (1984): Concerted activity under Section 7 must be engaged in with or on the authority of other employees, not solely on behalf of the employee alone.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework requiring the General Counsel to show protected conduct was a motivating factor before the employer must prove it would have acted the same regardless.

• Component Bar Products, Inc., 364 NLRB 1901 (2016): Found wage discussions inherently concerted where an employee sought to make common cause with a coworker.

• Parexel International, LLC, 356 NLRB 516 (2011): Recognized that disciplining an employee to preemptively block protected activity can violate the Act.

• U.S. Service Industries, Inc., 314 NLRB 30 (1994): An employer violates the Act by discharging an employee based on a mistaken belief that the employee engaged in protected concerted activity.

Tim Force Tin Shop, 375 NLRB No. 44, 27-CA-322370 (Published Board Decision)

The Board affirmed an administrative law judge's finding that a Casper, Wyoming HVAC contractor unlawfully refused to sign and honor a collective-bargaining agreement it had already agreed to with a sheet metal workers union.

The case centered on a Wyoming HVAC company that had long operated under union contracts negotiated jointly with another local signatory contractor and the union. During 2023 negotiations for a successor agreement, the company's owner repeatedly told the union's regional manager he had not yet decided whether to accept the proposed terms. But in a phone call on the day the union planned to hold a ratification vote, the owner told the union representative he was "good with it" and to "take it to the membership." The union then held its ratification meeting, the membership approved the contract, and the union mailed signed copies to the company for countersignature. The owner never signed and later told the union he did not agree to the contract and intended to pay employees different wages than the agreement specified, citing frustration over the union's inability to supply enough workers.

The judge found that under settled Board law, a party can become bound to a collective-bargaining agreement through verbal assent even without a signature, and that the formation of a contract turns on the parties' objectively manifested intent rather than private, unstated reservations. Crediting the union representative's account of the June 13 phone calls, largely because the company owner's testimony was inconsistent and he was never asked to specifically deny the statements attributed to him, the judge concluded that the owner's words constituted a clear acceptance of the contract terms. Combined with the union membership's unqualified ratification of those same terms, this established the "hallmark" indicia the Board looks for in finding a binding agreement was reached.

The judge ordered the company to execute and retroactively honor the contract, make affected employees whole for lost wages and benefits with interest, make required pension and benefit fund contributions, and compensate employees for adverse tax consequences from lump-sum backpay. On review, the three-member Board panel affirmed the judge's rulings and conclusions, adopting the recommended order with modifications to conform to the Board's standard remedial language, including a requirement that the company file copies of backpay recipients' W-2 forms with the regional office.

Significant Cases Cited

• New Orleans Stevedoring Co., 308 NLRB 1076 (1992): The Board lacks authority to order an employer to execute an agreement it has not assented to, but the obligation to execute arises once a meeting of the minds occurs on all substantive issues.

• NLRB v. Haberman Const. Co., 641 F.2d 351 (5th Cir. 1981): A labor contract's formation does not depend on reducing the parties' intent to be bound to writing, and a party's assent to an unsigned document can itself form a contract.

• Delta Sandblasting Co., Inc., 367 NLRB No. 17 (2018): A verbal acceptance of collective-bargaining terms can bind a party, and it is appropriate to evaluate the parties' conduct against the backdrop of their prior negotiations in assessing whether a meeting of the minds occurred.

• Dist. 4, Commc'ns Workers of Am. AFL-CIO v. NLRB, 59 F.4th 1302 (D.C. Cir. 2023): Mutual expressions of satisfaction, such as a handshake or its equivalent, and unqualified membership ratification of agreed-on contract changes are hallmark indications that a binding agreement was reached.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established that remedies for unfair labor practices should include compensation for other direct or foreseeable pecuniary harms beyond traditional backpay.

Greco Steel Products, Inc., 375 NLRB No. 47, 06-RC-350334 (Published Board Decision)

The Board granted an employer’s request for review of a regional director’s decision certifying a union as the exclusive representative of a bargaining unit of iron workers, finding that unresolved questions about union agency required further review before the election results could stand.

The dispute centered on a phone conversation between a union local’s business manager and an employee whose union membership had been suspended. The employee testified that the business manager told him that if the union won the upcoming election, he would not have to pay a reinstatement fee of up to $800 to restore his membership, but if the union lost, he would have to pay the fee through another path. The employer argued this amounted to an unlawful promise of a financial benefit designed to induce support for the union, while the regional director had found no objectionable conduct and certified the election results, which the union won by a 9 to 7 vote.

The Board agreed with the employer that the promised fee waiver constituted a prohibited gift of tangible economic value under established precedent, since the union’s constitution gave it unfettered discretion over whether to waive such fees and there was no established practice of routinely waiving them. The Board also found that because the margin of victory was narrow enough that the single employee’s vote could have changed the outcome, it did not matter whether the promise was shared with other voters.

However, the Board found that the regional director had never resolved a disputed threshold question: whether the business manager who made the promise was actually an agent of the petitioning union, since the statement was attributable to the union only if agency could be established. Because the regional director had sidestepped that issue, the Board remanded the case for a determination on agency in the first instance.

Member Prouty dissented, arguing that the record contained no evidence establishing that the business manager, who worked for a local union, was an agent of the international union named as the petitioner. Prouty would have found the employer failed to meet its burden of proving agency and said no remand was necessary because the evidence could not support such a finding regardless.

Significant Cases Cited

• Go Ahead North America, LLC, 357 NLRB 77 (2011): Held that a union cannot promise a gift of tangible economic value, such as waiving back dues, as an inducement to win support in a representation election.

• Harborside Healthcare, Inc., 343 NLRB 906 (2004): Established that in assessing the margin of victory in an election, the Board assumes unopened, uncounted challenged ballots were cast in favor of the objecting party.

• King Electric, Inc. v. NLRB, 440 F.3d 471 (D.C. Cir. 2006): Found a union’s promise of a benefit objectionable where the union retained discretion over whether to grant it, rather than having an invariable practice of doing so.

• Millard Processing Services, 304 NLRB 770 (1991): Held that the party asserting an agency relationship bears the burden of proving it.

• Carbon Fuel Co. v. Mine Workers, 444 U.S. 212 (1979): Established that an international union is not automatically liable for the acts of its local affiliates based on affiliation alone.

The Queen’s Medical Center, 375 NLRB No. 46, 20-CA-366357 (Published Board Decision)

The National Labor Relations Board has ordered The Queen’s Medical Center to bargain with the Hawai’i Nurses’ Association, OPEIU Local 50, after the hospital refused to recognize the union and withheld information following a certification election.

The dispute arose after a self-determination election in which respiratory therapists voted to join an existing bargaining unit of radiation therapists already represented by the union. The hospital contested that certification, arguing the Regional Director had erred by directing the election without first analyzing whether the respiratory therapists shared a community of interest with the existing unit, and by certifying what it called a nonconforming unit under the healthcare amendments to the NLRA. The Board had already rejected these arguments once, denying the hospital’s request for review in the underlying representation case.

Because the hospital admitted refusing to bargain and provide information, the General Counsel moved for summary judgment, and the Board granted it. The Board explained that an employer cannot relitigate representation issues in an unfair labor practice case unless it offers newly discovered evidence or shows special circumstances, neither of which the hospital did here, citing Pittsburgh Plate Glass Co. v. NLRB.

The Board also found the hospital unlawfully refused to turn over a lengthy list of information the union had requested, including wage, benefit, scheduling, and disciplinary records for the new bargaining unit members. Information about unit employees’ terms and conditions of employment is presumptively relevant to collective bargaining and must be disclosed on request, and the hospital offered no basis to rebut that presumption beyond its already-rejected challenge to the certification.

The Board ordered the hospital to bargain with the union on request, furnish the requested information, and post a notice to employees. Member Prouty, dissenting in part, would have imposed additional remedies, including compensation for economic harm caused by the delay in bargaining, union access to the bargaining unit, and notice reading to employees.

Significant Cases Cited

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): An employer cannot relitigate in an unfair labor practice proceeding representation issues that were or could have been raised in the underlying representation case, absent newly discovered evidence or special circumstances.

• Metro Health Foundation, Inc., 338 NLRB 802 (2003): Information concerning unit employees’ terms and conditions of employment is presumptively relevant to collective bargaining and must be furnished on request.

• NP Sunset LLC d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62 (2019): Reaffirmed that an employer’s refusal to furnish presumptively relevant bargaining information violates the NLRA.

• Frontier Hotel, 265 NLRB 343 (1982): The Board may take official notice of the record in a related representation proceeding when deciding a refusal-to-bargain complaint.

• Longmont United Hospital, 374 NLRB No. 52 (2026): Cited in Member Prouty’s dissent advocating for additional remedies, including make-whole relief, in test-of-certification refusal-to-bargain cases.

Country Cupboard, 375 NLRB No. 45, 10-CA-370518 (Published Board Decision)

The Board granted the General Counsel's motion for default judgment against Country Cupboard of Barnwell, LLC after the company failed to file an answer to a complaint alleging it unlawfully fired an employee for discussing wages with coworkers.

The case arose from a charge filed by Sheryl Navarro, who worked at the company's Barnwell, South Carolina restaurant. According to the complaint, Navarro discussed wages, hours, and other working conditions with fellow employees between March and July 2025. On July 21, 2025, the restaurant's owner told employees they were being discharged because they had discussed wages with each other, and Navarro was fired that same day.

Because the Respondent never answered the complaint, despite being served and later warned by the Region that a default judgment motion would follow, the Board treated the complaint's allegations as admitted under Section 102.20 of its rules. The Board noted that the company appeared to be unrepresented by counsel but found that acting without a lawyer does not by itself excuse a failure to answer, citing its precedent in Patrician Assisted Living Facility and Sage Professional Painting Co.

Based on the admitted facts, the Board concluded that the discharge and the owner's statement violated Section 8(a)(1) of the NLRA, which protects employees' right to engage in concerted activity for mutual aid and protection.

As a remedy, the Board ordered the company to offer Navarro reinstatement to her former position, make her whole for lost wages and other benefits with interest, and cover any additional costs tied to her job search, consistent with the Board's approach in Thryv, Inc. The company must also compensate Navarro for any adverse tax consequences from a lump-sum backpay award, file a report allocating the backpay to the correct tax years, remove references to the unlawful discharge from its files, and post a notice to employees describing their rights under the NLRA.

Significant Cases Cited

• Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Pro se status alone does not establish good cause for failing to file an answer to a Board complaint.

• Sage Professional Painting Co., 338 NLRB 1068 (2003): Reaffirmed that lack of counsel does not excuse a respondent's failure to answer a complaint.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded make-whole remedies to include compensation for direct or foreseeable pecuniary harms beyond traditional backpay.

• F. W. Woolworth Co., 90 NLRB 289 (1950): Established the method for computing backpay on a quarterly basis.

• Kentucky River Medical Center, 356 NLRB 6 (2010): Required interest on backpay awards to be compounded daily.

Starbucks Corporation, JD-63-26, 05-CA-318025 (ALJ Decision)

An administrative law judge found that Starbucks unlawfully disciplined several pro-union employees at its Ashbrook store in Ashburn, Virginia, but dismissed other allegations after a nine-day trial covering events from late 2022 through 2023.

The judge concluded Starbucks violated the NLRA when store manager Craig Stots ordered shift supervisor Crystal Jewett to go home and change out of a T-shirt bearing a union logo on April 7, 2023. The judge found this discipline selective and disparate, since Starbucks had tolerated far more visible dress code violations, including graphic T-shirts and out-of-palette clothing, without ever before sending anyone home to change.

The judge also found unlawful motivation behind the discharge of barista Nicole Kang, who was fired in February 2023 after being accused of cursing at a coworker in front of customers. The judge found that no customers were actually present, that Starbucks had never before disciplined anyone for profanity despite it being common in the store, and that Kang's punishment was far harsher than that given to other employees, including one who cursed directly at a manager. The timing, a month after the union's certification, and the shifting, unsupported justification reinforced the finding of anti-union motive.

Final written warnings issued to Gio Carvalho, Jewett, and Gabrielle Duritsa for attendance violations were also found unlawful. The judge noted that before the union campaign, no Ashbrook employee had received a final warning for a missed shift, and that after the campaign began, such warnings went almost exclusively to union supporters while other employees with similar or worse attendance problems went undisciplined.

On the bargaining front, the judge found that Starbucks unlawfully implemented a new annual recertification requirement for barista trainers without notifying or bargaining with the union, since the position carried a training bonus and qualified as a mandatory subject of bargaining.

However, the judge dismissed claims involving the discharge of shift supervisor Chelsea Brent, finding her firing was based on a legitimate belief that she falsified time records and violated a safety policy requiring two employees to be present when opening the store, not her union support. The judge also rejected claims that Starbucks unlawfully denied training assignments to Duritsa and barista Marium Rashid, attributing the lapse to staffing shortages rather than anti-union animus, and dismissed the claim that Starbucks unlawfully suspended its Partner of the Quarter award program, since there was no established practice of issuing the award every quarter.

The judge ordered Starbucks to reinstate Kang with backpay, remove the unlawful discipline from employee files, bargain with the union over the barista trainer certification policy, and post a notice to employees.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected union activity.

• NLRB v. Katz, 369 U.S. 736 (1962): Held that once a bargaining relationship begins, an employer must maintain the status quo on mandatory subjects of bargaining and cannot make unilateral changes without first notifying and bargaining with the union.

• Be-Lo Stores, 318 NLRB 1 (1995): Found disparate enforcement of a dress code violated the NLRA where an employer required an employee to remove or cover a union T-shirt while permitting other non-union shirts.

• Electrolux Home Products, 368 NLRB No. 34 (2019): Held that false or pretextual justifications offered by an employer for an adverse action can support an inference that the employer's true motive was unlawful.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded backpay remedies to include compensation for any direct or foreseeable pecuniary harms resulting from an unlawful discharge, beyond lost wages.

Becker County, Minnesota, 18-WH-390932 (Unpublished Board Decision)

The Board has certified Law Enforcement Labor Services, Inc. as a bona fide representative for purposes of Section 7(b) of the Fair Labor Standards Act, covering a unit of Becker County, Minnesota employees. The certification applies to workers in job classifications including Dispatcher, Corrections Officer, Transport Officer, Program Coordinator, Sentence to Serve Crew Lead, and Relief Planner, excluding supervisory and confidential employees.

The union had petitioned the Regional Director for Region 18 for this certification. The record showed that Minnesota's Bureau of Mediation Services had already named the union as the exclusive representative of these employees in a 2024 order, and the county had recognized the union through a collective-bargaining agreement running from 2024 through 2026. After the Regional Director issued a Notice to Show Cause asking why the certification should not be granted, no party objected, so the Board proceeded to issue the certification.

The Board noted that this type of certification, which relates specifically to FLSA overtime provisions for public safety and similar employees, does not by itself establish that the union has a right to recognition as the exclusive bargaining representative under the NLRA.

Significant Cases Cited

• County of Alameda, 322 NLRB 614 (1996): A certification of a union as bona fide for FLSA Section 7(b) purposes does not automatically confer exclusive bargaining representative status under the NLRA.

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.

I recently undertook a project to standardize various data points that are found on NLRB dockets. This includes using regular expressions and large language models to normalize the hundreds of spellings of the various law firms, unions, and employers that show up on NLRB dockets. The goal of this little project was to permit certain kinds of NLRB statistical analysis that previously was not possible.

One thing I have determined with this newly-cleaned data is that the United States Postal Service (USPS) accounts for a hugely disproportionate share of the NLRB caseload.

This is not because there are a bunch of union elections at the Postal Service. The National Association of Letter Carriers (NALC), American Postal Workers Union (APWU), National Rural Letter Carriers’ Association (NRLCA), and the National Postal Mail Handlers Union (NPMHU) already represent almost all USPS workers. These workers are not just unionized, but also have collective-bargaining agreements.

Instead, virtually all of the USPS activity at the NLRB is unfair labor practice (ULP) charges.

Around 15 percent of all ULP charges brought against employers are brought against the USPS. Around 23 percent of all ULP charges brought against unions are brought against the postal unions.

The charges brought against the postal unions are generally individuals alleging that their union violated the duty of fair representation (DFR). Most of these charges appear to be without merit, as less than 15 percent of them result in some kind of remedy, whether a formal remedy from the Board or an adjusted dismissal/withdrawal. This is pretty typical of DFR charges across the country. What usually happens is an individual worker tries to pursue a grievance, the union decides the grievance is no good and opts not to pursue it, and the individual worker files a meritless DFR charge against the union.

The charges brought against the USPS are mostly refusal-to-furnish-information (RFI) charges. Indeed, the graph below probably understates the degree to which RFI charges are driving this activity as “refusal to bargain / bad-faith bargaining” is a general term that includes RFIs.

Unlike the (mostly DFR) charges brought against the postal unions, the (mostly RFI) charges brought against the USPS appear to typically have merit. Around 59 percent of all such cases result in a remedy.

There is probably not much that can be done about the flood of DFR charges being brought against the postal unions. By statute, the hundreds of thousands of USPS workers each have an individual right to pursue these sorts of charges, even though they appear to generally lack merit.

But it seems to me like we ought to be able to do something about the flood of RFI charges being brought against the USPS. What is likely happening in most of those cases is one of the four postal unions submits an RFI to try to get information for a specific grievance, the USPS stonewalls that request, and so the union files charges at the NLRB, most of which appear to be meritorious.

Within this RFI process, there are only five or six actors:

1. The four postal unions.

2. The USPS management, currently led by Postmaster Steiner.

3. The USPS NLRB Unit, which is the internal law firm at the USPS that deals with these charges.

The USPS is fully owned by the US government. This means that the President or Congress ought to be able to get to the bottom of why the unions and the USPS have this endless RFI feud, e.g. through Congressional hearings, and then broker some kind of lasting solution to this problem by, among other things, getting the USPS to stop stonewalling valid information requests.

The NLRB is currently sitting on a 23,000 case backlog.

Obviously, the USPS is not solely to blame for this, but there have been over 35,000 charges against USPS since 2010, and it would be interesting to see how much lower the backlog might be if the agency resources spent resolving those charges had been spent elsewhere.

Ultimately, the flooding of the NLRB with USPS charges is a bit absurd. The NLRB primarily exists to resolve labor disputes within the private sector. The USPS, which is a public sector employer, was put under NLRB jurisdiction as part of the 1970 Postal Reorganization Act. Now the USPS is consuming a massively disproportionate share of NLRB resources over mostly fairly tedious grievance administration issues during a time that the agency is completely overwhelmed. Thus, the federal government, acting through the USPS, is significantly thwarting the ability of the federal government, acting through the NLRB, to enforce the law. This should not be how it is.

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.

Angie Cowan Hamada v. Laborforce, LLC, 25-3110 (7th Circuit)

A divided appeals panel refused to order a trucking employer to reinstate union recognition while unfair labor practice proceedings continue, finding that federal labor officials failed to show the kind of irreparable harm needed for emergency relief.

The dispute arose after employees at a Summit, Illinois truck dealership operated by Laborforce, LLC circulated petitions to decertify their longtime union. When the first petition fell short of a majority, the company withdrew recognition anyway for its Parts Department workers and improved their pay and benefits. A second petition later secured majority support from both the Parts and Service Departments combined, and the company withdrew recognition entirely. The union filed unfair labor practice charges, and while those charges were still working through the Board's internal process, the regional director asked a federal district court for a preliminary injunction under Section 10(j) of the NLRA to force the company to resume bargaining and undo the unilateral changes.

The court held that such injunctions are an extraordinary remedy that courts should grant only on a genuine showing of irreparable harm, not something the Board is entitled to as a matter of course. Citing Starbucks Corp. v. McKinney, the majority explained that the mere existence of a plausible unfair labor practice claim does not create a presumption of irreparable harm. The director had pointed only to generalized harms common to many labor disputes, such as diminished union support and lost bargaining benefits, without identifying anything specific to this case. The panel also noted that the workers' right under the NLRA to refrain from union activity cut against ordering relief, especially since employees had received real wage and benefit improvements after leaving the union. The court further found the director's delay of many months before seeking court intervention undercut any claim of urgency, given that the underlying administrative case was already fully briefed before the Board.

The majority also flagged, without deciding the underlying merits, that the district court had wrongly believed it lacked jurisdiction to assess the scope of the bargaining unit when weighing the union's likelihood of success.

In dissent, one judge argued the majority departed from the circuit's longstanding approach to Section 10(j) harm analysis, which has traditionally focused on injury to the union's organizing efforts rather than to individual employees' pay. The dissent contended that allowing an employer to defeat an injunction by raising wages after allegedly unlawful conduct rewards the exact strategy the Supreme Court condemned in Medo Photo Supply Corp. v. NLRB, and that the majority's new "extraordinary circumstances" gloss on the irreparable harm standard has no basis in the statute or in Starbucks.

Significant Cases Cited

• Starbucks Corp. v. McKinney, 602 U.S. 339 (2024): Held that the Board's regional director must satisfy the traditional four-factor preliminary injunction test for Section 10(j) relief, with no presumption of irreparable harm from a likely unfair labor practice finding.

• Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944): Held that an employer cannot justify refusing to bargain with a union by pointing to defections it induced through unlawful wage increases.

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Addressed an employer's duty to recognize a union based on authorization cards and discussed the limited, temporary nature of bargaining orders.

• Kerwin v. Trinity Health Grand Haven Hospital, 174 F.4th 942 (6th Cir. 2026): Held that after Starbucks, courts may not artificially lighten the director's burden to show specific irreparable harm in Section 10(j) cases.

• Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944): Held that a bargaining order does not permanently fix a bargaining relationship and works no injustice on employees who may later seek a different representative.

Nexstar Media Corporation D/B/a NewsNation, 375 NLRB No. 40, 05-CA-367812 (Published Board Decision)

The Board granted summary judgment against Nexstar Media Corporation, which operates NewsNation, finding that the company unlawfully refused to bargain with IBEW Local 1200 after the union's certification as the exclusive bargaining representative of a unit of technical employees, including audio operators, photographers, videographers, and engineers at the company's Washington, D.C. facility.

Nexstar had admitted refusing to bargain but argued it had no duty to do so because the underlying certification was invalid. The company raised several objections, including that the Regional Director improperly overruled its election objections without a hearing, that the Board's decision in Amazon.com Services LLC barred it from holding captive audience meetings in violation of Section 8(c) and the First Amendment, and that the investigation into alleged supervisor taint was incomplete. The Board found that all of these representation issues had already been litigated, or could have been litigated, in the prior representation case, and that Nexstar offered no newly discovered evidence or special circumstances justifying reconsideration. It therefore treated the objections as foreclosed under settled precedent governing test-of-certification cases.

The Board also rejected constitutional arguments raised by Nexstar. It found no merit in the claim that adjudicating the case without a jury trial violates the Seventh Amendment, citing longstanding Supreme Court precedent upholding the Board's authority to adjudicate public rights created by the NLRA. It likewise rejected the argument that removal protections for Board members and administrative law judges violate Article II, noting Nexstar had not shown it suffered any actual harm from those protections.

Having found the refusal to bargain unlawful under Section 8(a)(5) and (1), the Board ordered Nexstar to bargain with the union on request, post a remedial notice, and, if an agreement is reached, sign it. It also ordered that the certification year run from the date bargaining actually begins in good faith. Member Prouty wrote separately to reiterate his view, previously expressed in dissent, that broader remedies, including make-whole relief for bargaining delay, union access, a bargaining schedule, and notice-reading requirements, should apply in test-of-certification cases.

Significant Cases Cited

• NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Held that NLRA adjudication does not implicate the Seventh Amendment right to a jury trial.

• Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Reaffirmed that Congress may assign adjudication of public rights to an administrative agency without violating the Seventh Amendment.

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Held that representation issues already litigated, or that could have been litigated, in a prior representation proceeding cannot be relitigated in a subsequent unfair labor practice case absent new evidence.

• Collins v. Yellen, 594 U.S. 220 (2021): Held that a party challenging an agency official's removal protections must show actual harm resulting from those protections to obtain relief.

• Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the certification year begins running only once an employer actually begins bargaining in good faith, where the employer had unlawfully refused to bargain.

National Nordic Museum, 19-UC-390170 (Regional Election Decision)

A regional director has ruled that two disputed job positions at the National Nordic Museum in Seattle, a Facilities Supervisor and a Guest Services Manager, should be included in a bargaining unit represented by Communications Workers of America, Local 7800, after finding that the museum failed to prove either position was supervisory.

The dispute traced back to a neutrality agreement the museum and union signed when the union sought voluntary recognition. Most job titles were placed on an agreed list, but the two positions at issue were set aside on a separate list as disputed, with both sides reserving the right to bring the question to the Board. After a card check led to recognition and the parties began contract bargaining without resolving the two positions, the union filed a unit clarification petition. The museum argued that placing the jobs on the disputed list had already resolved the matter and that the union had waived its right to seek clarification by bargaining and by withdrawing an earlier petition, but the regional director rejected both arguments, finding the agreement itself preserved Board review and that ongoing bargaining without a finalized contract did not waive the union's right to seek clarification.

On the merits, the museum bore the burden of showing the two positions met the supervisory test under Section 2(11) of the NLRA, which turns on whether an employee can hire, discipline, assign, or responsibly direct others using independent judgment. For the Guest Services Manager, the evidence showed the incumbent sat in on hiring interviews but did not make independent hiring decisions, made only minor day-to-day task assignments based on availability, was not held accountable for coworkers' performance, and occasionally served as the highest-ranking employee on Saturdays without exercising any supervisory authority during those shifts. Employee evaluations she conducted also did not affect wages or job status. For the Facilities Supervisor, the museum relied mainly on a written job description describing supervisory duties, but testimony from its own HR director confirmed the position did not actually perform those functions in practice, with the Director of Operations and Facilities handling that direction instead. Because paper job descriptions carry little weight without evidence of actual supervisory practice, the regional director found the museum had not met its burden for either position and ordered the bargaining unit clarified to include both.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Establishes the framework for determining supervisory status, including definitions of independent judgment, assignment, and responsible direction under Section 2(11).

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Holds that possessing any one of the enumerated supervisory authorities exercised with independent judgment is sufficient to confer supervisory status.

• Croft Metals, Inc., 348 NLRB 717 (2006): Confirms that the party asserting supervisory status bears the burden of proving it.

• Ryder Truck Rentals, Inc., 326 NLRB 1386 (1998): Holds that participation in interviews alongside a higher-level official who also makes hiring decisions does not establish authority to effectively recommend hiring.

• Aladdin Hotel, 270 NLRB 838 (1984): Sets the test for supervisory status based on substitution, requiring that the substitution be regular, substantial, and involve actual exercise of supervisory authority.

DHC SD Holdings LLC, as Operator of Paradise Point Resort & Spa, 21-RC-367465 (Regional Election Decision)

A Regional Director has ordered an election for a proposed bargaining unit limited to banquet department workers at Paradise Point Resort & Spa in San Diego, rejecting the hotel operator's bid to fold in more than one hundred additional employees from other departments.

UNITE HERE Local 30 petitioned to represent banquet servers, banquet bartenders, banquet captains, banquet housepersons, and lead banquet housepersons. The hotel, operated by DHC SD Holdings LLC, argued the unit needed to include a much broader range of classifications, including outlet restaurant staff, cooks, stewards, front desk agents, housekeeping, laundry, maintenance, and recreation employees, contending the smaller unit was inappropriate given the hotel's integrated operations.

Applying the Board's standard from American Steel Construction, the regional director found the petitioned-for banquet employees were readily identifiable as a group, sharing internal community of interest, and sufficiently distinct from the excluded classifications. The decision emphasized that the Banquet Department has its own manager, operates on an event-driven schedule distinct from the hotel's other departments, and derives much of its income from a service charge rather than tips, unlike most other hotel employees. The director found little evidence of regular interchange, frequent contact, or functional integration between banquet employees and the broader hotel workforce the employer sought to add.

The decision also rejected the employer's reliance on older hotel industry cases finding broader "wall-to-wall" units appropriate, distinguishing those cases on their facts and noting that Board law does not impose any fixed unit-scope standard for the hotel industry. Because the employer failed to show an "overwhelming community of interest" between the petitioned-for banquet employees and the excluded classifications, the director directed an election in the narrower unit as proposed by the union.

Significant Cases Cited

• American Steel Constr., Inc., 372 NLRB No. 23 (2022): Set the current standard for evaluating petitioned-for "subdivision" units, requiring internal community of interest, ready identifiability, and sufficient distinctness, with an "overwhelming community of interest" showing needed to force inclusion of additional employees.

• Specialty Healthcare & Rehabilitation Ctr. of Mobile, 357 NLRB 934 (2011): Established the community-of-interest framework that American Steel reinstated after it had been overruled.

• PCC Structurals, Inc., 365 NLRB 1696 (2017): The prior standard, overruled by American Steel, that had made it easier for employers to expand petitioned-for units.

• Atlanta Hilton & Towers, 273 NLRB 87 (1984): Found a broader unit appropriate at a hotel built specifically for convention business with a high degree of operational integration, distinguished here because that level of integration was absent.

• Ramada Beverly Hills, 278 NLRB 691 (1986): Found a broader unit appropriate where employees frequently interchanged across job classifications and shared common supervision, distinguished here because no such interchange or shared supervision existed.

CPC Retail Products, LLC, 16-RC-393156 (Regional Election Decision)

A regional director for the NLRB dismissed a petition seeking to represent route drivers at a freight company's Tyler, Texas lot, finding that the company's planned closure of the location made holding an election pointless.

The International Brotherhood of Teamsters, Local 745, had petitioned to represent about 11 full-time and part-time route drivers employed by CPC Retail Products, LLC at its Tyler facility. The company failed to timely serve its statement of position on the union, which under Board rules ordinarily bars a party from raising unaddressed issues at hearing. Even so, the regional director held a hearing to gather evidence on the company's claim that it intended to permanently lay off all drivers at the location, reasoning that such evidence could not simply be disregarded.

The evidence showed that before the petition was filed, the company and its client, Procter & Gamble, had already decided to reroute freight lanes that would eliminate the need for the Tyler location. In the weeks that followed, the company took concrete steps toward the change: testing a new drop lot in Texarkana, Arkansas, securing a lot in Memphis and hiring drivers there, and ultimately notifying Tyler employees by email that the lot would close around September 15, about three weeks after the hearing.

Applying Board precedent, the regional director explained that a petition may be dismissed, even where a question of representation exists, when an employer's cessation of operations is both imminent and definite. Citing cases such as Hughes Aircraft Co. and Davey McKee Corp., the decision noted that closures expected within three to four months of the hearing, paired with concrete steps like securing new facilities and notifying employees, typically satisfy that standard. The director found no evidence, unlike in American Bottling Co. v. NLRB, that the company had a history of announcing and then delaying layoffs, which supported treating its plans as genuine.

The decision declined to address the union's argument that the company's actions were motivated by its organizing campaign, noting that such a claim belongs in an unfair labor practice proceeding rather than this representation case. The petition was dismissed without prejudice, meaning the union may move to reinstate it if the company does not actually close the Tyler location as planned.

Significant Cases Cited

• Hughes Aircraft Co., 308 NLRB 82 (1992): An employer's execution of letters of intent with subcontractors and notice of layoffs to employees established that a cessation of operations was both definite and imminent, warranting dismissal of an election petition.

• Davey McKee Corp., 308 NLRB 839 (1992): No useful purpose is served by directing an election where an employer's operations are scheduled to terminate within three to four months.

• Am. Bottling Co. v. NLRB, 992 F.3d 1129 (D.C. Cir. 2021): An employer failed to prove cessation was imminent and definite because it had a history of announcing layoff dates and then significantly delaying them.

• Martin Marietta Aluminum, 214 NLRB 646 (1974): A petition was properly dismissed where the employer had already begun closing the plant and laying off employees before the petition was filed, with definite plans to continue.

• Norfolk Maintenance Corp., 310 NLRB 527 (1993): An election was ordered where the employer was not expected to cease operations in the petitioned-for unit for at least seven months after the decision issued.

Inland Waters Pollution Control, Inc., 07-CA-277239 (Unpublished Board Decision)

The Board denied the employer's motion for reconsideration of its earlier decision, finding that the company had not identified any material error or shown the extraordinary circumstances required under the Board's rules to revisit the ruling.

In the underlying case, the Board had reversed an administrative law judge's finding that the employer's statements at the bargaining table violated the NLRA, but it upheld the judge's separate finding that employee Shinar Reed was unlawfully discharged. Because the Board's finding of unlawful discharge did not rely on the bargaining-table statements as evidence of anti-union animus, the Board rejected the employer's argument that reversing the bargaining-table violation required it to redo its motive analysis under Wright Line. The Board explained that the remaining evidence cited by the judge was sufficient on its own to support a finding that the discharge was unlawfully motivated, and that the employer's objection amounted to disagreement with how the evidence was weighed rather than identification of an actual error.

Member Prouty wrote separately to note he would have upheld the finding that the bargaining-table statements were unlawful and would have counted them as further evidence of animus, but he agreed the majority's reversal on that point did not require a fresh motive analysis of the discharge.

The order also addressed the employer's challenge to the remedies imposed, which followed the Board's approach in Thryv, Inc. Chairman Murphy and Member Mayer noted they had not yet taken a position on whether the compensatory remedies approved in Thryv are permissible under the NLRA, but said they would apply Thryv in this case for institutional consistency, as explained in Leo Marine Services. They found the employer's arguments against reconsidering Thryv did not meet the extraordinary-circumstances standard. Member Prouty reiterated his view that Thryv was correctly decided and remains within the Board's authority to ensure meaningful make-whole relief.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the Board's framework for analyzing whether an employer's adverse action against an employee was motivated by unlawful anti-union animus.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's standard remedy to include compensation for all direct or foreseeable financial harms resulting from an unfair labor practice, not just traditional backpay.

• Leo Marine Services, 375 NLRB No. 35 (2026): Explained the Board's rationale for continuing to apply the Thryv remedial framework for institutional consistency pending further review.

unWired Broadband, Inc., 32-RC-363784 (Unpublished Board Decision)

The Board denied an employer's request for review of a Regional Director's decision overruling its election objections and certifying a union as the employees' bargaining representative, finding the challenge raised no substantial issues.

The employer had objected to the election on grounds that union pickets engaged in misconduct and that union agents made threatening statements to company supervisors in a private conversation. The Board agreed with the Regional Director that neither objection warranted setting aside the election. On the picketing objection, the Board found the employer never claimed in its offer of proof that any of the alleged picket line misconduct was communicated to eligible voters, and concluded the conduct would not have justified overturning the results even if it had reached a decisive number of voters. The Board also noted that the Regional Director had mistakenly said the picketing occurred two weeks before the election rather than one week, but found this error did not change the outcome.

As for the claimed threats by union agents toward supervisors, the Board found the employer offered no evidence that any misconduct occurred, since the statements were not directed at eligible voters and were not shown to relate to any conduct toward them. Even evaluated under the standard for assessing objectionable conduct, the Board found nothing in the alleged statements severe or calculated enough to coerce voters, since they appeared to concern circumstances specific to the supervisors involved. The employer also failed to show the statements were disseminated to or known by eligible voters. The Board further pointed to the lopsided 10-1 vote margin in favor of the union as additional reason the alleged misconduct could not have affected the outcome absent evidence that voters were aware of it.

The Board separately denied a request by counsel for the General Counsel seeking to have the employer's request for review denied or held in abeyance, finding the request was filed after the deadline for opposing a request for review and that the General Counsel, not being a party to the case, had no basis for relief.

Significant Cases Cited

• Taylor Wharton Division, 336 NLRB 157 (2001): Sets out the factors used to evaluate whether picket line conduct is severe enough to warrant setting aside an election.

• Avis Rent-a-Car, 280 NLRB 580 (1986): Holds that where an election was not close and there is no evidence voters knew of or were affected by alleged misconduct, objections to the election should be overruled.

• Crown Bolt, Inc., 343 NLRB 776 (2004): Holds that when dissemination of coercive statements must be shown, the objecting party bears the burden of proving dissemination and its impact on the election.

• Patient Care, 360 NLRB 637 (2014): Addressed Board agent misconduct in the conduct of an election, a circumstance the Board found not present in this case.

Snowflake, Inc., 375 NLRB No. 39, 20-CA-274626 (Published Board Decision)

The Board upheld a finding that a cloud computing company unlawfully fired an engineer for speaking up about a new internal policy governing how software changes were reviewed before being merged into the company's code.

The employee had recently stepped down from a supervisory role and become a non-management engineer. In that capacity, he raised concerns at a company meeting attended by managers and other employees, arguing that the company's new "API Change Policy" was vague, could be applied unfairly by the two people put in charge of approving changes, and could result in employees seeing their performance ratings and bonuses docked for failing to follow unclear procedures. Other employees voiced similar concerns before and after the meeting. He also intervened on behalf of coworkers in separate disputes about perceived bias in code review and mandatory testing requirements.

The Board agreed with the administrative law judge that this conduct was both concerted, meaning it reflected shared employee concerns rather than a purely personal gripe, and directed at improving a term or condition of employment, since managers had made clear that failing to follow the policy could lead to discipline. The Board rejected the company's argument that the policy was purely a business decision outside the reach of the NLRA, finding that it directly affected working conditions.

The Board also found that the company knew about the protected activity, since the employee's direct supervisor and other managers attended the meeting where the concerns were raised, and that the company harbored animus, pointing to messages in which managers described the employee's comments as disruptive and to the supervisor's later emails citing that same conduct as a reason for termination. The company failed to show it would have fired the employee regardless of his protected activity, as the ALJ found its stated performance-based reasons for the discharge were either false or not actually relied upon at the time. The Board ordered reinstatement, backpay, and related remedies, and rejected on procedural grounds the company's belated constitutional challenges to the Board's structure.

Significant Cases Cited

• Meyers Industries, 281 NLRB 882 (1986): Defines concerted activity as including an employee bringing truly group complaints to management's attention, requiring some linkage to group action.

• Peerless Publications, Inc., 283 NLRB 334 (1987): Rules or policies become terms and conditions of employment when violations carry express or implied penalties like discipline.

• Wright Line, 251 NLRB 1083 (1980): Sets the burden-shifting framework for analyzing claims that an employer acted with unlawful motive, requiring the employer to prove it would have taken the same action absent protected activity.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the standard make-whole remedy to include compensation for other direct or foreseeable pecuniary harms beyond lost wages.

• Moore Business Forms, Inc., 288 NLRB 796 (1988): An employer's prior tolerance of an employee's poor performance undermines a claim that performance alone would have led to discharge.

The Quartz Corp., 10-RD-374383 (Unpublished Board Decision)

The Board denied requests for review filed by both the employer and the petitioner challenging a regional director's decision to hold a decertification petition in abeyance under the Board's blocking charge policy. The Board found no substantial issues warranting review, explaining that its role was limited to assessing whether the regional director abused his discretion based on the information available at the time the blocking decision was made. The denial does not prevent the employer from later asking the regional director to unblock the petition if circumstances change, consistent with Starbucks Corp.

The Board noted that the regional director had acted consistently with Section 103.20 of the Board's Rules and Regulations, which governs the blocking charge policy. Two members wrote separately to note they were applying existing law without expressing a view on whether the underlying blocking policy was correctly decided. One member added that the Board's procedures require regional directors to continually reassess whether a pending unfair labor practice charge should keep blocking a petition, and suggested the Board should consider whether the current policy adequately accounts for the passage of time. He also urged that the single unfair labor practice charge still blocking the election be given priority in processing.

Significant Cases Cited

• Starbucks Corp., 374 NLRB No. 141 (2026): Addressed a regional director's authority to reconsider a blocking determination and the process for filing a motion to unblock a petition after new events occur.

District Hospital Partners, LP D/B/a the George Washington University Hospital, 05-RD-384944 (Unpublished Board Decision)

The Board declined to review a regional director's decision to block a decertification petition filed against the District of Columbia Nurses Association. Both the employer and the petitioner had sought review, but the Board found their requests raised no substantial issues warranting a closer look.

In a footnote, the Board explained that the regional director had properly applied Section 103.20 of the Board's Rules and Regulations, the provision governing the Board's blocking-charge policy, which allows a pending unfair labor practice charge to pause processing of a related representation petition. Two members, Chairman Murphy and Member Mayer, added that they were applying existing law for institutional consistency and were not weighing in on whether the blocking-charge policy itself was correctly decided.

IUOE Local 139 (The Boldt Company), 375 NLRB No. 38, 18-CD-352973 (Published Board Decision)

The Board quashed a notice of hearing in a dispute between two unions over truck driving and hauling work at a construction contractor's Wisconsin facility, finding the case was not actually a jurisdictional dispute suitable for resolution under Section 10(k) of the NLRA.

The Boldt Company had long assigned the work of driving trucks and hauling materials to and from its Appleton yard to employees represented by both International Union of Operating Engineers, Local 139 and Teamsters General Union Local 662. When the last Teamsters-represented employee retired in 2024, the company told the union it could not hire a replacement because of a hiring freeze. After the Teamsters filed grievances, the company warned the Engineers that resolving those grievances might require laying off an Operating Engineer, and the Engineers' district manager responded that the union would picket to preserve the work for its members. The company then filed a charge alleging the Engineers had threatened unlawful conduct in violation of Section 8(b)(4)(D) to force a favorable work assignment.

The Board found that although both unions technically claimed the same work, each was really only trying to hold onto work its own members had historically performed, making this a work preservation dispute rather than a true jurisdictional one. Citing precedent, the Board explained that a dispute does not become jurisdictional merely because two unions both assert work-preservation claims to the same tasks. The Board also found that the company itself had helped create the conflict by letting the Teamsters' unit shrink to zero through attrition, invoking a hiring freeze that conveniently matched its preference for Engineers who could operate equipment as well as drive, rather than by any neutral, even-handed dilemma imposed on it. Because the Board will not let an employer use a Section 10(k) proceeding to resolve a dispute of its own making, and because the real dispute was contractual and grievance-based rather than jurisdictional, the Board granted the Teamsters' motion to quash the notice of hearing and declined to award the disputed work to either union.

Significant Cases Cited

• Operating Engineers Local 150 (R&D Thiel), 345 NLRB 1137 (2005): Sets out the threshold requirements for finding reasonable cause to proceed with a Section 10(k) determination, including competing claims, proscribed means, and lack of an agreed voluntary resolution method.

• Teamsters Local 578 (USCP-Wesco), 280 NLRB 818 (1986): Establishes that the Board looks to the "real nature and origin of the dispute" in deciding whether a true jurisdictional dispute exists.

• Seafarers (Recon Refractory & Construction), 339 NLRB 825 (2003): Holds that a work preservation dispute is a complete defense to Section 8(b)(4)(D) allegations and falls outside the intended scope of Section 10(k).

• Machinists District 190 Local 1414 (SSA Terminal, LLC), 344 NLRB 1018 (2005): Holds that a dispute remains one of work preservation even when more than one union asserts a claim to the same work, and that the Board will not let an employer use Section 10(k) to resolve a dispute it created itself.

• Carpenters (Prate Installations, Inc.), 341 NLRB 543 (2004): Distinguishes disputes where a union seeks to expand into work it never performed from disputes where a union merely seeks to retain work it has historically performed.

Leo Marine Services, Inc.; Olympic Tug and Barge; Centerline Logistics, 375 NLRB No. 35, 19-CA-273208 (Published Board Decision)

The Board found that a group of related marine transportation companies unlawfully stripped union-represented barge workers of their jobs and funneled the work to a nonunion sister company, while also unlawfully propping up a rival, minority union at a newly created affiliate.

The case centered on Westoil Marine Services, a company that had serviced a longtime customer, Glencore, in the Los Angeles/Long Beach port for more than two decades. Its parent, Centerline Logistics Corporation, ran an internal bidding process among its subsidiaries for this and other West Coast work in late 2020, ultimately awarding the Glencore contract first to Olympic Tug & Barge and then to a newly formed subsidiary, Leo Marine Services, neither of which employed the Inlandboatmen's Union of the Pacific-represented workforce that had performed the work for years. The Board agreed with the administrative law judge that Centerline, Olympic Tug & Barge, Leo Marine, Westoil, and Harley Marine Financing operate as a single employer, given their shared ownership, management, and interlocking operations.

Applying the "clear and unmistakable waiver" standard reinstated in Endurance Environmental Solutions, the Board held that the union never waived its right to bargain over the loss of the Glencore work. The record showed that the employer's negotiators strung the union along, soliciting proposals to make Westoil's bid more competitive while quietly submitting an unchanged, doomed bid behind the scenes and ultimately handing the contract to affiliated nonunion entities. Because the parties never validly reached impasse and the union never yielded on the specific issue of transferring the work elsewhere, the unilateral transfer and the resulting layoffs of ten Westoil employees violated the NLRA. The Board did, however, reverse the judge on one narrower point, finding that simply telling union representatives on the day of the decision that Westoil had lost the work was not itself a separate violation, since it was inseparable from the unlawful transfer already found unlawful.

The Board also upheld findings that Leo Marine violated the Act by recognizing the Seafarers International Union before it had hired a substantial, representative workforce, and by signing a contract with that union containing a union-security clause and dues checkoff despite the SIU lacking majority support. Because the recognition was premature, requiring new hires to join the SIU and sign dues-deduction forms was independently unlawful.

As a remedy, the Board ordered reinstatement and backpay for the affected employees, extended to any casual employees who lost work as a result of the unlawful transfer, reimbursement of dues and fees collected under the improper SIU contract, and compensation for other financial harms employees suffered, including tax consequences of lump-sum payments, consistent with the Board's remedial framework in Thryv.

Significant Cases Cited

• Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Restored the "clear and unmistakable waiver" standard for determining whether a union waived its right to bargain over a unilateral change, replacing the "contract coverage" test.

• MV Transportation, Inc., 368 NLRB No. 66 (2019): Established a two-step "contract coverage" standard for evaluating unilateral employer action, later abandoned by Endurance Environmental Solutions.

• First National Maintenance Corp. v. NLRB, 452 U.S. 66 (1981): Held that management decisions involving a change in the scope and direction of the enterprise are not mandatory subjects of bargaining, distinguishing them from decisions motivated primarily by labor costs.

• Emsing's Supermarket, Inc., 284 NLRB 302 (1987): Set out the four-factor test for single-employer status: common ownership, common management, interrelated operations, and centralized control of labor relations.

• Thryv, Inc., 372 NLRB No. 22 (2022): Established that backpay remedies must include compensation for all direct or foreseeable pecuniary harms resulting from an unfair labor practice, not just lost wages.

Stanford University, 32-RC-386778 (Regional Election Decision)

A regional director has directed an election among Resident Student Leaders (RSLs) at Stanford University, rejecting the university's arguments that these student residential staff fall outside the National Labor Relations Board's jurisdiction.

The petition, filed by Residential Assistants United Rising (RAUR), sought to represent RAs, RA-Os, and ETAs who live in and manage Stanford's undergraduate campus housing. These students receive quarterly stipends totaling $12,400 for the academic year and perform duties including community building, conflict resolution, emergency response, event programming, and financial stewardship of house funds. They are supervised by Resident Fellows, Resident Directors, Community Coordinators, and Associate Directors, and can be disciplined or terminated for failing to meet expectations.

Stanford opposed the petition on three grounds: that RSLs are not statutory employees under Section 2(3) of the NLRA, that the Board should decline jurisdiction to avoid conflicts with constitutional and other federal rights, and that RAUR does not qualify as a labor organization.

The regional director applied the common-law employment test from Columbia University, which asks whether a worker performs services for another, under that party's control, in exchange for payment. Applying that framework, the decision found RSLs perform valuable services central to Stanford's residential life program, operate under substantial University control through binding terms of appointment and disciplinary authority, and receive compensation in the form of stipends that RSLs may use however they wish. The decision rejected Stanford's argument that the stipends function as financial aid rather than pay, noting they are unconditional and not tied to educational costs.

The director also rejected Stanford's request to apply a stricter "primarily educational" test from Brown University, finding RSLs' year-long, often renewable appointments comparable to the tenures already covered under Columbia University. Because overturning Columbia University precedent is not within a regional director's authority, that argument was left for the Board itself to address if raised on review.

Finally, the decision found RAUR satisfies the statutory definition of a labor organization because RSLs participate in it and it exists to address their working conditions with Stanford.

The director directed a secret-ballot election for October 6 and 7, 2026, among RSLs employed for the 2026-2027 academic year, while excluding resident directors, resident fellows, community coordinators, and other supervisory or confidential staff from the unit.

Significant Cases Cited

• Columbia University, 364 NLRB 1080 (2016): Held that student assistants with a common-law employment relationship with their university are statutory employees under the NLRA, overruling Brown University.

• Brown University, 342 NLRB 483 (2004): Previously held that graduate student assistants were not statutory employees because their relationship with their university was primarily educational, not economic.

• NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Held that the party seeking to exclude workers from Act coverage as supervisors bears the burden of proof.

• Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984): Established that the NLRA's definition of "employee" broadly covers any person who works for another in exchange for compensation.

• NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974): Addressed the Board's authority to resolve novel employee-status questions through adjudication.

Catholic Health Initiatives Colorado Dba Centura Health-St. Mary Corwin Medical Center, 375 NLRB No. 37, 27-CA-273705 (Published Board Decision)

The Board reversed an administrative law judge's finding that a Colorado hospital operator unlawfully withdrew recognition from a union representing nonprofessional employees, even though the employer separately committed several unrelated violations of the NLRA in the lead-up to that withdrawal.

The case arose after an employee filed a petition to decertify Communications Workers of America as the bargaining representative for about 151 workers at two Pueblo facilities. The Board agreed with the judge that the employer broke the law in the weeks before the petition was submitted: supervisors prohibited an employee from discussing the union during work hours, threatened him with discipline and reassignment, and an employer agent promised workers higher pay if they signed the decertification petition and directly solicited signatures for it. Those actions, the Board found, went beyond permissible "ministerial" involvement in a decertification effort and violated Section 8(a)(1).

The central dispute concerned what happened next. By the time the petition reached management on March 5, 2021, it carried signatures from a majority of the unit, and the employer withdrew recognition from the union, later making unilateral wage increases and other changes without bargaining. The judge held that because the employer had tainted the petition through its own misconduct, it could not rely on it as valid evidence that the union had lost majority support, citing the Board's Hearst Corp. presumption as applied in SFO Good-Nite Inn.

The Board majority disagreed, holding that 53 percent of unit employees had already signed the petition before the employer's unlawful conduct began on February 24. Because those earlier signatures were untainted, the majority reasoned, the employer possessed valid evidence of actual loss of majority support and could lawfully withdraw recognition, relying on Pacific Grove Convalescent Hospital. The majority therefore dismissed the 8(a)(5) allegations tied to the withdrawal and the resulting unilateral changes to wages, dues deductions, and bulletin board access, and eliminated the judge's proposed affirmative bargaining order and notice-reading remedy.

Member Prouty dissented on this point, arguing that the majority misapplied Hearst, which he read as creating a conclusive presumption that any employer unfair labor practice aimed at advancing a decertification effort taints the resulting petition in its entirety, regardless of when individual signatures were collected. He would have upheld the judge's finding that the withdrawal of recognition and subsequent unilateral changes were unlawful, and would have preserved the notice-reading remedy.

Significant Cases Cited

• Hearst Corp., 281 NLRB 764 (1986): An employer's unfair labor practices aimed at advancing an employee decertification effort conclusively taint the resulting petition, barring reliance on it regardless of individual employees' awareness of the misconduct.

• SFO Good-Nite Inn, 357 NLRB 79 (2011): Reaffirmed and elaborated the Hearst presumption, explaining that an employer's direct participation in a decertification effort creates a petition too unreliable to rebut the union's presumption of continuing majority status.

• Pacific Grove Convalescent Hospital, 350 NLRB 518 (2007): Found a decertification petition untainted, and withdrawal of recognition lawful, where a majority of unit employees signed before the employer's later unlawful solicitation of additional signatures.

• Levitz Furniture Co. of the Pacific, Inc., 333 NLRB 717 (2001): Established that an employer may withdraw recognition from an incumbent union only upon a showing that the union has actually lost majority support.

• Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996): Recognized that a recognized union is entitled to a presumption of majority support, which may become rebuttable over time.

Service Electric Company, 10-RC-391380 (Regional Election Decision)

A regional director has directed an election for a proposed bargaining unit of Field Safety Coordinators at Service Electric Company, rejecting the company's argument that these employees are statutory supervisors who should be excluded from union representation.

The electrical contractor had opposed the petition filed by the International Brotherhood of Electrical Workers Local 175, arguing that its six Field Safety Coordinators in the company's central region wield supervisory authority under Section 2(11) of the NLRA because they can assign and direct work, discipline employees, hand out rewards, evaluate performance, and resolve grievances. After an August 2026 hearing, the regional director found the company failed to prove any of these claims with the kind of specific, non-conclusory evidence the Board requires.

On work assignment, the director found the coordinators' role limited to flagging safety violations, offering guidance, and occasionally halting unsafe work, none of which amounted to assigning employees to tasks, shifts, or locations under the standard set in Oakwood Healthcare, Inc. The authority to stop work was not exclusive to the coordinators, and one coordinator's occasional placement of injured workers on light duty was too isolated and mechanical to count.

On discipline, testimony showed that any recommendations coordinators made were independently verified by management before action was taken, meaning the coordinators did not exercise the kind of unreviewed disciplinary authority that confers supervisory status.

Regarding rewards, the director noted that lunches and small gifts given to crews for safety achievements were tied to a formal "good catch" program reviewed by management, and the record did not establish how frequently these rewards occurred, undermining the company's claim of independent judgment.

The director also rejected the company's grievance-adjustment argument, distinguishing informal problem-solving from the kind of formal grievance handling that indicates supervisory status, and found that leading safety training sessions did not amount to evaluating employees.

Because the employer could not meet its burden of proof on any of the statutory indicia, the director certified the petitioned-for unit as appropriate and scheduled a secret-ballot election for September 16, 2026.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established the framework for determining whether an employee has authority to assign or responsibly direct work sufficient to confer supervisory status.

• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Held that the party asserting supervisory status bears the burden of proving it.

• Lucky Cab Co., 360 NLRB 271 (2014): Held that disciplinary authority only confers supervisory status if it leads to personnel action without independent investigation by management.

• Veolia Transportation Services, 363 NLRB 1879 (2016): Found that infrequent or isolated rewards, without evidence of independent judgment, do not establish supervisory status.

• Passavant Retirement & Health Center v. NLRB, 149 F.3d 243 (3d Cir. 1998): Addressed whether resolving informal workplace problems constitutes adjusting grievances for supervisory status purposes.

Premier Beverage Company, LLC, Dba Breakthru Beverage Florida, 12-RD-374423 (Unpublished Board Decision)

The Board denied a union's request for review of a regional director's decision overruling its election objection in a decertification proceeding, though it reached that result on different grounds than the regional director had used.

The union had objected to the election on the theory that the employer improperly gave replacement workers a benefit by employing them as driver helpers following a route bidding process earlier in the year. The regional director overruled the objection after finding the union's evidence insufficient. The Board disagreed with that reasoning but still denied review, explaining that the objection essentially restated an unfair labor practice charge the union had already filed and that the Board had already found lacked merit.

The Board reiterated that when an election objection's core allegation is that conduct violated the NLRA, the Board will not evaluate the objection on its own terms because doing so would require the Board to make an unfair labor practice finding outside the proper charge process. That would intrude on the General Counsel's exclusive authority under Section 3(d) of the Act to issue complaints and prosecute unfair labor practice cases. The proper avenue for the union to pursue its claim, the Board explained, is to appeal the regional director's dismissal of its unfair labor practice charge to the General Counsel, which the union had already done.

Because the request for review was denied, the Board also denied as moot the union's request for a stay of the underlying proceedings. The Board added that even if the stay request were not moot, it would still deny it because the union failed to make the required "clear showing" that a stay was necessary, particularly since the hearing had been postponed and there was no sign the regional director planned to rule on ballot challenges tied to pending arbitration before those arbitration decisions were issued.

Significant Cases Cited

• Virginia Concrete Corp., 338 NLRB 1182 (2003): The Board will not consider an election objection where sustaining it would require finding that the underlying conduct violated the Act.

• Texas Meat Packers, 130 NLRB 279 (1961): Established that making unfair labor practice findings in representation proceedings improperly interferes with the General Counsel's authority to prosecute such charges through the separate charge process.

• Times Square Stores Corporation, 79 NLRB 361 (1948): Early authority holding that alleged unfair labor practice conduct affecting an election should be addressed through the filing of charges rather than through the representation case itself.

NLRB v. American Backflow & Fire Prevention, Inc., 24-2434 (7th Circuit)

The Seventh Circuit denied a company's petition for review and enforced a Board order requiring American Backflow & Fire Prevention to bargain with Plumbers Local 130, finding that the company had defaulted on a settlement agreement it entered into after earlier unfair labor practice charges.

The case traced back to a 2022 settlement in which American Backflow promised to bargain in good faith with the Union and agreed that, if it later breached the agreement, it would waive its right to answer any resulting complaint and could contest only whether a default had occurred. After holding one bargaining session in 2023, the company canceled a second one and withdrew recognition of the Union, citing what it called documentary evidence that the Union had lost majority support.

The Board's General Counsel moved for default judgment, arguing that the company's withdrawal breached its settlement obligations because the decertification evidence it cited either predated the certification year or was tainted by the company's own unfair labor practices. A divided Board panel granted the motion, reasoning that American Backflow had abandoned its stated justification for withdrawing recognition without offering any alternative basis, leaving nothing but a bare denial that could not defeat default judgment.

On review, the court explained that after a union's initial certification year, an employer may rebut the presumption of majority support only by showing the union actually lacked majority support or that the employer had a good-faith doubt grounded in objective evidence. American Backflow never substantiated either theory once it disavowed reliance on the decertification petitions, so its "lawful withdrawal" assertion amounted to nothing more than a conclusory denial. The court found this consistent with Board precedent holding that general denials, without specific facts rebutting a detailed breach allegation, do not warrant a hearing.

The court also rejected the company's due process argument that it was entitled to a hearing under the NLRA, holding that the argument was never raised before the Board and was therefore forfeited under the statute's requirement that objections be urged before the agency first.

Significant Cases Cited

• Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): An employer may withdraw recognition of an incumbent union only upon objective evidence that the union has actually lost majority support.

• NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990): After certification, a union's majority support presumption becomes rebuttable, and an employer can rebut it by showing actual loss of majority support or a good-faith doubt based on objective evidence.

• Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): Describes the rebuttable presumption of majority support a union holds after its initial certification year.

• Alaris at Hamilton Park Health Care Center, 366 NLRB No. 90 (2018): A general denial that fails to specifically refute a detailed breach allegation is insufficient to defeat a motion for default judgment.

• Williamsville Suburban, LLC, 365 NLRB 114 (2017): An assertion made only "upon information and belief" does not raise a material issue of fact sufficient to avoid default judgment.

Starbucks v. NLRB, 24-60653 (5th Circuit)

A Fifth Circuit panel partly upheld and partly rejected an NLRB finding that Starbucks violated the NLRA through statements made by managers at a Wichita, Kansas store during a 2022 union organizing campaign.

The case centered on a store where a union lost its representation election, after which the union filed unfair labor practice charges. An administrative law judge found that the store manager and assistant manager violated Section 8(a)(1) of the NLRA in several ways: by suggesting employee benefits could be lost if the store unionized, by tying a reduction in store hours to union pressure, by linking a hiring portal closure to the union campaign, and by creating an impression that employees' organizing was under surveillance. The Board adopted these findings, with one member dissenting in part, and imposed a narrow cease-and-desist order along with a remedial notice requirement.

The court agreed with only one part of the Board's decision. It found substantial evidence supported the conclusion that the manager's statement to one employee, made during a benefits meeting, that her maternity-related benefits "could not be guaranteed" if she supported organizing, amounted to an unlawful threat of reprisal because it lacked any reference to the give-and-take nature of collective bargaining. The court enforced the Board's order on that point.

On the remaining claims, the court sided with Starbucks. It found the manager's comment linking shortened store hours to relieving "pressure" from the union did not, in context, amount to a threat, especially given testimony that reduced hours stemmed from documented staffing shortages unrelated to the union. Similarly, the court held that a statement about the hiring portal being paused due to restrictions on discussing unions with applicants was too disconnected from current employees' terms of employment to qualify as coercive. Finally, the court rejected the surveillance-impression finding, concluding the record did not support that all organizing conversations occurred outside the workplace and that the manager's general acknowledgment of awareness of union talk, without more, did not tend to interfere with or coerce employees' protected activity.

Significant Cases Cited

• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Employers may lawfully predict the effects of unionization if the predictions are carefully grounded in objective fact and do not threaten reprisal.

• Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003): Employers retain a protected right to express opinions about unionization so long as statements do not threaten reprisal or force.

• UNF West, Inc. v. NLRB, 844 F.3d 451 (5th Cir. 2016): A statement about reduced wages or benefits is not an unlawful threat if it is framed in the context of the give-and-take of collective bargaining.

• NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975): An employer's mere acknowledgment of awareness of an employee's union activity does not create an unlawful impression of surveillance absent evidence it interfered with or coerced protected activity.

• AllService Plumbing & Maintenance, Inc. v. NLRB, 138 F.4th 889 (5th Cir. 2025): Courts must reject Board findings that fail to grapple with countervailing evidence in the record.

NLRB v. VNS Fed. Servs., LLC, 25-1233 (6th Circuit)

The Sixth Circuit enforced a Board order finding that VNS Federal Services, LLC violated the NLRA when it fired heavy equipment operator Israel Bo Sword after he complained that the company had improperly guaranteed a coworker 40 hours of work per week, a deal Sword believed violated the union's collective bargaining agreement.

Sword worked for VNS at the Portsmouth Gaseous Diffusion Plant in Ohio, where operators were represented by the International Union of Operating Engineers, Local 18, under an agreement called the General Presidents' Project Maintenance Agreement. In February 2020, Sword objected during a team meeting to a supervisor's side deal giving another operator, Greg Dillow, a guaranteed 40-hour week, telling his supervisor that "the contract" did not allow such arrangements. Two days later, after Sword's union representative raised the issue with VNS management, the company permanently laid Sword off, citing "lack of work."

The court applied the Interboro doctrine, under which an employee's honest and reasonable invocation of a right under a collective bargaining agreement counts as protected concerted activity even if the employee turns out to be mistaken about the underlying right. The court explained that this rule, adopted by the Supreme Court in NLRB v. City Disposal Systems, Inc., protects employees from being punished for informally raising contract disputes, since requiring pinpoint accuracy would turn labor agreements into "a trap for the unwary."

Applying that standard, the court found substantial evidence supported the Board's conclusion that Sword's complaint invoked the agreement in good faith, even though the agreement did not actually bar the side deal. The court also upheld the Board's findings that VNS knew of Sword's protected activity, that the timing and statements surrounding his firing showed animus, and that VNS's stated justification of insufficient work was pretextual, given that the company continued assigning overtime and hired a new operator shortly after Sword's termination.

On remedies, VNS argued that reinstatement and backpay were improper given evidence that Sword turned down later job referrals. The court declined to address that argument, following its usual practice of deferring backpay and reinstatement disputes to the Board's separate compliance proceedings rather than resolving them during the enforcement appeal. The court granted the Board's petition to enforce its order in full.

Significant Cases Cited

• NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Held that an employee's honest and reasonable invocation of a right under a collective bargaining agreement is protected concerted activity, regardless of whether the employee was correct that the right was violated.

• NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): Established the burden-shifting framework for evaluating claims that an employer discharged an employee for protected activity.

• Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984): Confirmed the Board's broad discretion to order reinstatement and backpay while deferring precise calculations to compliance proceedings.

• NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950): Held that an employer's partial or claimed compliance with a Board order does not make the order unenforceable.

• Airgas USA, LLC v. NLRB, 916 F.3d 555 (6th Cir. 2019): Applied the Wright Line framework requiring the General Counsel to show protected activity, employer knowledge, and animus before the burden shifts to the employer.

John Henry Foster Minnesota, Inc., 375 NLRB No. 36, 18-RC-306175 (Published Board Decision)

The Board granted an employer's request for review of a regional director's decision on challenged ballots in a representation case, remanding the matter for further proceedings over a dispute about which employees were eligible to vote in a rerun union election.

At issue was whether two employees, Andrew Medrano and Michael Foux, were properly counted as eligible voters. The employer argued they were economic strikers who had actually quit or abandoned their struck jobs before the rerun election, making their challenged ballots invalid. To support that claim, the employer subpoenaed communications between the union and each employee about their work-related activities, but a hearing officer revoked the subpoenas after the union objected that the requests intruded on protected organizing activity, and the regional director upheld that ruling.

The Board majority found the hearing officer should not have revoked the subpoenas outright without first reviewing the documents privately, known as an in-camera inspection, to determine whether they contained information bearing on whether the two employees intended to return to their jobs after the election. The majority pointed to the employer's specific factual basis for its request: Foux had told the employer he planned to seek other work with better insurance and later took a new union-obtained job paying more, while Medrano was a paid union organizer whose duties included filing activity reports with the union and who had briefly ended and then resumed the strike. The majority concluded these facts were enough to justify a limited in-camera review, and remanded the case for that narrower inspection while otherwise denying the request for review.

Member Prouty dissented, arguing the employer's subpoenas were an overly broad fishing expedition into protected union communications and that the hearing officer had reasonably found no basis to believe further documents existed after crediting both employees' hearing testimony that they intended to return to work. Prouty also objected that the majority improperly rewrote the employer's subpoena on its own initiative rather than requiring the employer to justify a properly narrowed request, warning that the ruling would encourage employers to file broad subpoenas hoping for in-camera review on demand.

Significant Cases Cited

• Laguna College of Art and Design, 362 NLRB 965 (2015): Employer interests in compelling disclosure of union organizing strategy are outweighed by employees' interests in keeping their Section 7 activity confidential.

• Ozark Automotive Distributors, Inc. d/b/a O'Reilly Auto Parts v. NLRB, 779 F.3d 576 (D.C. Cir. 2015): A subpoena was improperly quashed on Section 7 grounds where neither the hearing officer nor the Board attempted to balance employee interests against the company's need for the documents.

• Veritas Health Services d/b/a Chino Valley Medical Center, 362 NLRB 283 (2015): An employer violated Section 8(a)(1) by subpoenaing employees for communications with the union and union card materials because it would chill protected activity.

• Burns Security Services, 278 NLRB 565 (1986): A subpoena broadly seeking union records without evidentiary support was quashed as a fishing expedition not entitled to enforcement.

• U.S. v. Zolin, 491 U.S. 554 (1989): A party seeking in-camera review must present evidence sufficient to support a reasonable belief that such review may yield relevant, non-privileged evidence.

International Union, United Automobile Workers, Aerospace & Agricultural Implement Workers of Americ, JD-61-26, 12-CB-360927 (ALJ Decision)

An administrative law judge dismissed a union unfair labor practice complaint accusing a UAW local of unlawfully refusing to sign a written agreement on warehouse production standards at Mack Trucks' Jacksonville distribution facility.

Under the union's collective bargaining agreement with Mack Trucks, the company and Local 2420 were required to meet and try to agree on productivity metrics for warehouse tasks like unloading, picking, and packing. After an outside consultant's proposed numbers proved too aggressive, the two sides negotiated directly and reached agreement in September 2024 on specific line-per-hour targets for six job functions, along with a shared understanding that existing "Mack work rules" would keep applying at the facility. When the company later handed the union a written memorandum reflecting that deal, it also included new language stating that the targets would be subject to an "ongoing process of adjustment" tied to changing operations and efficiency gains, with the parties meeting "as necessary" to revisit them. The union balked and refused to sign, and the company filed unfair labor practice charges under Section 8(b)(3) of the NLRA, claiming the union had already agreed to that language at the bargaining table.

The judge found that the numeric targets themselves, and the continued application of Mack work rules, were solidly established by the testimony and bargaining notes of both sides, meaning the union was bound to sign as to those terms. But the adjustment language was different: the judge found no true "meeting of the minds" on it, since the company's negotiators spoke only vaguely about revisiting targets if efficiencies improved, never showed the union any draft language during bargaining, and the specific wording later appeared unilaterally in the written memorandum two weeks afterward. Because that language would have materially altered the contract's production-standards process, and because the union's local president reasonably believed it could let the company adjust targets unilaterally, the General Counsel failed to prove agreement on that material term. The judge distinguished the company's cited precedents, Chauffeurs, Teamsters, and Helpers Local Union No. 771 (Pennsy Supply) and Windward Teachers Association, noting that in both of those cases the union had actually reviewed and signed off on specific written language before refusing to execute the final document, which did not happen here. Since a valid 8(b)(3) violation requires agreement on all material terms, the judge recommended dismissal of the complaint in its entirety.

Significant Cases Cited

• Chauffeurs, Teamsters, and Helpers Local Union No. 771 (Pennsy Supply, Inc.), 357 NLRB 2203 (2011): A union that reviewed and orally approved specific written contract language, then shook hands to confirm the deal, was bound to sign it despite later second thoughts.

• Windward Teachers Association, NYSUT, AFT, AFL-CIO, 346 NLRB 1148 (2006): A union that reviewed multiple drafts of bonus language without objecting, and presented that same language to its membership for ratification, could not later refuse to sign based on a claimed misunderstanding.

• Sunrise Nursing Home, 325 NLRB 380 (1998): An employer or union's duty to execute a negotiated contract only arises once there is a "meeting of the minds" on all substantive issues and material terms.

• Hempstead Park Nursing Home, 341 NLRB 321 (2004): Whether a "meeting of the minds" exists is judged by the objective terms of the agreement, not the parties' private subjective understandings.

• Kelly's Private Car Service, 289 NLRB 30 (1988): The General Counsel must prove both that the parties reached a meeting of the minds and that the document the respondent refused to sign accurately reflects that agreement.

McAlvain Companies, Inc., 27-RC-389626 (Regional Election Decision)

A regional director for the National Labor Relations Board has ordered an election for a proposed bargaining unit of cement finishers at a Boise, Idaho construction company, rejecting the employer's bid to split the unit between its directly hired workers and those referred through a union hiring hall.

The petitioner, a local affiliate of the Operative Plasterers and Cement Masons International Association, sought to represent all cement finisher foremen, general foremen, journeypersons, and apprentices working for McAlvain Companies, Inc. The company agreed the job classifications belonged together but argued that workers it hired directly should be kept separate from workers referred by the union, because the two groups do not share a sufficient community of interest.

The dispute centered on the company's work for a large semiconductor manufacturing project near Boise, where the employer operates under a project labor agreement requiring it to use union-referred cement finishers on a one-to-one ratio with its own hires. That agreement created real differences between the two groups, including separate pay scales, benefits, grievance procedures, and hiring processes. On the company's other projects, which do not fall under the labor agreement, workers are cross-trained across multiple trades and no union-referred employees are used at all.

The regional director found that once on the job site, the distinctions largely faded. Both groups of cement finishers are hired through similar screening and orientation processes, work side by side performing identical tasks, use the same tools, report to the same supervisors, and are subject to the same site rules, hours, and safety requirements. Applying the Board's community-of-interest test, which weighs shared supervision, job functions, skills, contact between workers, and terms of employment, the director concluded that the main difference between the two groups was simply how their employment began, not how they actually work. Citing prior Board decisions involving temporary and jointly employed workers, the director noted that differences in wages and benefits alone do not defeat a finding of shared community of interest when employees otherwise work alongside each other under common supervision.

Based on this analysis, the director certified the union's proposed unit as appropriate and directed a secret-ballot election, to be held in mid-September, allowing the roughly 29 employees in the unit to vote on whether they wish to be represented by the union.

Significant Cases Cited

• American Steel Construction, Inc., 372 NLRB No. 23 (2022): A petitioned-for unit need not be the most appropriate unit, only an appropriate one, and must share a community of interest, be readily identifiable, and be sufficiently distinct.

• NLRB v. Action Automotive, 469 U.S. 490 (1985): The Board's unit determinations focus on whether employees share a community of interest.

• Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Sets out the community-of-interest factors, including department structure, skills, job functions, integration, contact, interchange, terms of employment, and supervision.

• Re MJM Studios of New York, Inc., 336 NLRB 1255 (2001): Temporary employees working side by side with regular employees under the same supervision share a sufficient community of interest for inclusion in the same unit, despite differing wages and benefits.

• Interstate Warehousing of Ohio, LLC, 333 NLRB 682 (2001): Temporary employees who work side by side and are largely interchangeable with permanent employees, sharing job classifications, functions, hours, and supervision, belong in the same bargaining unit.

Seattle Roots Community Health, 19-RD-391788 (Regional Election Decision)

A regional director has directed elections at Seattle Roots Community Health, a Seattle nonprofit that operates medical, behavioral health, and dental clinics, after an employee filed a petition to decertify SEIU Healthcare 1199NW as the bargaining representative for a mixed unit of professional and nonprofessional staff.

The decision resolved two disputes between the employer and the petitioner, since the union was barred from participating after missing its deadline to file a statement of position. The first concerned whether the roughly 135-person bargaining unit, which combines professional employees like nurses and behavioral health counselors with nonprofessional employees like medical assistants and billing specialists, required a special self-determination vote for the professionals. The employer argued this so-called Sonotone election was unnecessary because the professional employees had already voted once before, in an earlier organizing campaign, to be grouped with nonprofessional staff. The regional director rejected that argument, explaining that the NLRA requires a fresh vote of professional employees on inclusion each time a mixed unit faces an election, regardless of how they voted previously, and that the parties cannot bargain that right away by stipulation.

The second dispute involved which per diem employees should be allowed to vote. The employer wanted all per diem workers included without restriction, but the regional director applied the standard Davison-Paxon formula, which limits eligibility to per diem employees who averaged at least four hours of work per week over the prior quarter, finding no special circumstances that would justify departing from that standard.

The regional director also set the mechanics of the vote: a mixed mail and in-person election, with remote employees voting by mail and everyone else voting in person at the two clinic locations. Professional employees will answer two questions on their ballots, first whether they wish to remain grouped with nonprofessional employees, and second whether they want SEIU Healthcare 1199NW to represent them. Depending on how the professionals vote on the first question, the final bargaining unit will either remain a single combined unit or split into two separate units, professional and nonprofessional, each voting independently on representation.

Significant Cases Cited

• Sonotone Corp., 90 NLRB 1236 (1950): Established the self-determination election procedure required before professional employees can be grouped with nonprofessional employees in a single bargaining unit.

• American Medical Response, Inc., 344 NLRB 1406 (2005): Held that a new Sonotone election is required each time professionals and nonprofessionals may be combined in a unit, even if professionals previously voted for inclusion, and that parties cannot stipulate away that right.

• Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999): Confirmed that stipulations between parties cannot override the statutory requirement that professional employees separately decide on inclusion with nonprofessionals.

• Davison-Paxon Company, 185 NLRB 21 (1970): Established the formula used to determine voting eligibility for irregularly scheduled employees based on averaging at least four hours of work per week over the preceding quarter.

• Trump Taj Mahal Casino, 306 NLRB 294 (1992): Articulated the Board's goal of maximizing employee enfranchisement in election eligibility formulas while excluding those without a genuine continuing interest in employment terms.

Siren Retail Corp. V. NLRB, 24-3168 (2nd Circuit)

A federal appeals court sided with Starbucks in a dispute over dress code rules the company applied at its Reserve Roastery store in New York City, rejecting a labor board finding that the company's policies on union pins and shirts illegally interfered with workers' organizing rights.

The case grew out of a 2022 incident in which several employees at the Roastery wore black t-shirts bearing the Workers United union logo over their aprons during a national push to negotiate the chain's first union contract. A manager told the employees the shirts violated the store's dress code and asked them to change. Workers United filed an unfair labor practice charge, and the Board's general counsel went after three separate policies: a rule limiting employees to one union pin, a rule barring pins or buttons on political, religious, or personal issues, and a rule requiring that any writing on shirts be pre-approved by the company.

An administrative law judge found the one-pin rule lawful, reasoning it was essentially the same policy the Second Circuit had already upheld in Starbucks I. But the judge found the other two policies unlawful, applying the Board's own precedent in Tesla, Inc., which presumes that uniform policies limiting union insignia are illegal unless the employer narrowly tailors them to specific business needs. The Board itself later went further, reversing the judge on the one-pin issue too and finding all three policies unlawful.

The Second Circuit disagreed on both fronts. On the one-pin policy, the court found the facts indistinguishable from Starbucks I, in which it had already ruled that limiting employees to a single union button did not violate the NLRA, given Starbucks' interest in avoiding message clutter on its uniforms. The court found the differences the Board pointed to, such as the more relaxed "steampunk" dress code at the Roastery versus the plain black-and-white look at ordinary stores, legally irrelevant to that reasoning.

On the other two policies, the court rejected the Board's Tesla framework outright, agreeing with a prior Fifth Circuit ruling that had also thrown out Tesla. The panel held that Tesla's presumption against nearly all workplace dress rules, combined with its requirement that employers narrowly tailor policies to survive scrutiny, misreads the Supreme Court's decision in Republic Aviation Corp. v. NLRB. That decision, the court explained, requires a genuine balancing of employees' organizing rights against employers' interests in workplace discipline and business image, not a strict-scrutiny-style test that effectively assumes employer policies are unlawful. The court also concluded it owed no deference to the Board's reading of Supreme Court precedent under the framework set out in Loper Bright Enterprises v. Raimondo, which eliminated the deference courts previously gave to agency legal interpretations, while noting that factual findings by the Board still receive deference if backed by substantial evidence.

The court denied enforcement of the Board's order and sent the case back to the agency, directing it to reevaluate the pin-issue and shirt-logo policies under a properly balanced standard that weighs the extent of any restriction on workers' rights, whether the policy is neutral and consistently enforced, and the surrounding circumstances. The court also flagged that the Board's remedial order appeared broader than its findings justified and asked the agency to narrow it accordingly on remand.

Significant Cases Cited

• Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established that employees have a right under Section 7 to wear union insignia at work, subject to an employer's ability to show special circumstances justifying restrictions, requiring a balance between employee organizing rights and employer business interests.

• NLRB v. Starbucks Corp. (Starbucks I), 679 F.3d 70 (2d Cir. 2012): Upheld a Starbucks policy limiting employees to one union pin, finding the company's interest in avoiding message clutter sufficient to justify the restriction.

• Tesla, Inc., 371 NLRB No. 131 (2022): Set a Board standard presuming that employer uniform policies restricting union insignia are unlawful unless narrowly tailored to specific special circumstances.

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron deference, directing courts to exercise independent judgment on questions of law rather than deferring to agency interpretations of ambiguous statutes.

• Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019): Applied a balancing test weighing the impact on employees' NLRA rights against an employer's legitimate business justifications for dress code policies, later overruled by Tesla.

Real Entertainment – Philadelphia, LLC, a Wholly Owned Subsidiary of LiveConnections.org, D/B/a Worl, 374 NLRB No. 34, 04-CA-370494 (Published Board Decision)

The National Labor Relations Board issued a default judgment against Real Entertainment—Philadelphia, LLC, the entity operating the World Café Live music venue in Philadelphia, after the company failed to respond to a series of unfair labor practice complaints while operating as a debtor-in-possession in bankruptcy.

The Board found that the company committed a broad range of violations tied to two organizing efforts. In June 2025, eight front-of-house employees walked out and protested outside the venue over wages, treatment by management, and job security. The company fired all of them the next day, along with employee Elizabeth Grecco, whom it believed had participated even though she had not. Management also threatened the workers with a lawsuit over the walkout.

A second wave of activity followed in the fall of 2025, when employees raised complaints about late and inaccurate wage payments and filed wage theft complaints with the City of Philadelphia. The company responded by cutting several employees from the work schedule and ultimately terminating or discharging four of them, conduct the Board found was also driven by their support for UNITE HERE Local 274, which the front-of-house staff had voluntarily recognized as their bargaining representative that July.

The Board further found that the company unlawfully withdrew recognition from Local 274 in September 2025 and refused to bargain with it, and separately refused to bargain with International Alliance of Theatrical Stage Employees, Local 8, which represented the venue's production staff. The company also made unilateral changes to production employees' pay structure and hours-reporting requirements without bargaining with Local 8, including switching a salaried employee to hourly pay, requiring use of a new timekeeping system, cutting off a travel and phone stipend, and adding a supervisor approval step for hours before payroll.

Because the company never answered the complaints or offered any justification, despite reminders that a default judgment motion would follow, the Board treated all the allegations as admitted. It ordered reinstatement and full backpay, including compensation for related financial harms and adverse tax consequences, for the thirteen affected employees. The Board also ordered the company to recognize and bargain with both unions on request, rescind the unilateral changes made to production employees' terms of employment, remove references to the unlawful discharges from personnel files, and post and read aloud a notice to employees describing their rights.

Significant Cases Cited

• Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Pro se status alone does not establish good cause for failing to file an answer to a Board complaint.

• Cardinal Services, Inc., 295 NLRB 933 (1989): Bankruptcy proceedings do not deprive the Board of jurisdiction to process an unfair labor practice case to final disposition.

• F.W. Woolworth Co., 90 NLRB 289 (1950): Established the standard method for computing backpay owed to unlawfully discharged employees.

• Thryv, Inc., 372 NLRB No. 22 (2022): Held that backpay remedies must include compensation for all direct or foreseeable pecuniary harms, not just lost wages.

• AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016): Requires employers to compensate employees for adverse tax consequences of receiving lump-sum backpay awards.

Boardroom Styling Lounge - Houston/Galleria, JD-60-26, 16-CA-373437 (ALJ Decision)

An administrative law judge has ordered a Houston hair salon to reinstate and compensate a stylist who was fired after refusing to sign confidentiality and non-solicitation agreements, finding the agreements themselves unlawfully restricted employee rights.

The case arose after HB Boardroom Galleria hired Elizabeth Villegas as a stylist in August 2025. About three weeks later, the company's area manager told Villegas by text that she and other employees had to sign two documents as a condition of employment: a "Confidentiality of Salary and Benefit Agreement" barring employees from discussing pay and benefits with each other, and a "Confidentiality, Non-Compete & Non-Solicitation Agreement" that prohibited employees, for two years after leaving the company, from soliciting or inducing coworkers to leave their jobs. The company told Villegas it would not modify the agreements. When she refused to sign, she was fired.

The company did not contest the allegations. At an August 2026 hearing, its counsel admitted every paragraph of the amended complaint, and General Counsel moved for summary judgment, which the company did not oppose. Based on those admissions, the judge found that maintaining both agreements interfered with employees' rights under Section 7 of the NLRA, that telling Villegas the agreements were a non-negotiable condition of employment was similarly unlawful, and that firing her for refusing to sign violated Section 8(a)(1) of the Act.

As a remedy, the judge ordered the company to offer Villegas reinstatement to her former job, make her whole for lost earnings and other financial harms including job-search expenses, cover any adverse tax consequences from a lump-sum backpay award, and remove references to the unlawful discharge from her personnel file. The company must also rescind the overbroad provisions in its confidentiality and non-compete agreements, notify all current and former employees that the language will no longer be enforced, and post a notice describing employees' rights at its Houston Galleria location.

Significant Cases Cited

• F.W. Woolworth Co., 90 NLRB 289 (1950): Establishes the standard method for calculating backpay owed to unlawfully discharged employees.

• New Horizons, 283 NLRB 1173 (1987): Sets the interest rate applied to backpay awards in Board remedies.

• Kentucky River Medical Center, 356 NLRB 6 (2010): Requires that interest on backpay awards be compounded daily.

• Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board's standard remedy to include compensation for other direct or foreseeable pecuniary harms beyond lost wages resulting from unlawful discharge.

• AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016): Requires employers to compensate discharged employees for adverse tax consequences of receiving backpay as a lump sum.

KGW-Tv, 19-RC-376874 (Unpublished Board Decision)

The Board declined to review a regional director's decision directing an election in a case involving IBEW Local 48's petition to add several classifications to an existing bargaining unit at a television station. The petitioned-for classifications, including producers, digital content producers, and content coordinators, share a community of interest with the existing unit of directors and broadcast technicians, the Board found, because they work in the same department under common supervision, have regular work-related contact, and share basic terms of employment such as hourly pay and workplace rules.

The Board also found functional integration between the groups, noting that directors code broadcasts according to producers' instructions and that broadcast technicians provide technical support across all the petitioned-for classifications. While the Board clarified that interchange between employee groups is not a "critical" factor in this analysis, contrary to a suggestion in the regional director's decision, it agreed that the interchange factor, along with skills, training, and job duties, weighed against holding a separate self-determination election. On balance, the Board concluded these factors were outweighed by the shared community of interest.

Finally, the Board upheld the regional director's finding that the petitioned-for producers are not statutory supervisors, agreeing they lack authority to assign or responsibly direct other employees. Because of that conclusion, the Board did not need to decide whether the producers exercise independent judgment in preparing broadcast rundowns.

Significant Cases Cited

• Walt Disney Parks & Resorts, U.S., Inc., 373 NLRB No. 99 (2024): Set out the community-of-interest factors used in self-determination election analysis, including that interchange is not a critical factor.

• Public Service Co. of Colorado, 365 NLRB 1017 (2017): Held that differences in terms and conditions of employment stemming from a collective-bargaining agreement are entitled to less weight in the self-determination context.

• Transerv Systems, Inc., 311 NLRB 766 (1993): Found a high degree of functional integration where two employee groups had to work together to complete most deliveries.

• Publix Super Markets, Inc., 343 NLRB 1023 (2004): Found functional integration where certain employees performed support functions essential to all operations at a facility.

• Peacock Productions of NBC Universal Media, LLC, 364 NLRB 1523 (2016): Addressed the standard for determining whether employees have authority to assign or responsibly direct work as statutory supervisors.