Concerted Action – The Duane Morris Labor Blog

June 10, 2026June 10, 2026 by Elizabeth Mincer

House Passes Faster Labor Contracts Act: Mandatory Deadlines for First-Contract Bargaining Could Reshape Labor Relations

On June 9, 2026, the U.S. House of Representatives passed the Faster Labor Contracts Act (H.R. 5408) in a bipartisan 220–193 vote. Introduced by Rep. Donald Norcross (D-NJ), the bill would amend Section 8(d) of the NLRA to impose mandatory time limits on negotiations for initial CBAs following union certification or recognition under Section 9(a).

The legislation would establish a structured timeline for first-contract negotiations. Specifically, an employer must meet and begin bargaining no later than 10 days after receiving a written bargaining request from a newly certified or recognized union, unless the parties mutually agree to a longer period. If no agreement is reached within 90 days of the commencement of bargaining, either party may notify the Federal Mediation and Conciliation Service (FMCS) and request mediation.

If mediation by the FMCS does not produce agreement within 30 days, FMCS must refer the dispute to a three-person arbitration panel. That panel—comprising one member selected by each party and a mutually agreed-upon neutral—would issue a binding decision governing the terms of the CBA for two years. The arbitration decision must account for the employer’s financial status, size and type of operations, employees’ cost of living, employees’ ability to sustain themselves and their families, and wages and benefits offered by comparable employers in the same industry.

The Legislation Has Bipartisan Support and Could Become Law

This bill reached the House floor through an unusual procedural route: a discharge petition. The discharge petition secured the required 218 signatures—comprising 211 Democrats and 7 Republicans—to force a floor vote. The bill ultimately passed 220–193. It enjoys significant bipartisan cosponsorship, with 103 cosponsors.

A companion bill, S. 844, was introduced in the Senate on March 4, 2025 by Sen. Josh Hawley (R-MO), also with bipartisan support. S. 844 was read twice and referred to the Senate Committee on Health, Education, Labor, and Pensions (HELP), where it currently remains.

The breadth of cross-party support signals that lawmakers from both parties perceive the current first-contract bargaining process needs to be revamped.

Dramatic Implications for the Collective Bargaining Landscape

If enacted, the Faster Labor Contracts Act would represent a fundamental shift in private-sector labor relations—at least for initial CBA negotiations. Current law requires employers and unions to bargain in good faith but imposes no deadlines for reaching agreement. The process for bargaining a first contract can take significant time, typically more than a year and sometimes multiple years. That said, contracts are more complex than they used to be, as employers and unions have to navigate myriad issues including federal, state, and local employment-related laws.

The bill’s calendar-driven framework would move first-contract bargaining from an open-ended process to a structured system of escalating intervention: mandatory bargaining within 10 days, FMCS mediation at 90 days, and binding interest arbitration at 120 days. Labor unions would hold significant leverage over the process, as any extensions of these deadlines would have to be mutually agreed.

This legislation would also significantly alter traditional impasse dynamics. Under current law, failure to reach agreement in first-contract bargaining typically leads to continued negotiation, lawful economic pressure (including strikes or lockouts), or traditional impasse mechanisms. If this bill becomes law, unresolved disputes would proceed to binding arbitration, placing the decision-making in the hands of third parties.

Again, this would provide significant leverage for labor unions because unions would have a fast path to a first contract without the need for protracted economic pressure campaigns (i.e., strikes). Unilateral implementation by an employer of a last, best, and final contract would, effectively, no longer exist.

Based on the current iteration of the legislation, it is not entirely clear who would have to pay for all this. Arbitration can be expensive (thousands of dollars per day), and the law would require a panel of three arbitrators. There is no mention of the government footing the bill, so the parties would likely be on the hook. Further, the mandatory mediation and the arbitration assignment processes would be coordinated through the FMCS, an agency that, over the past year, was gutted and then reconstituted via injunction. It is currently understaffed and its fate remains unclear.

While the concept of speeding along negotiations for a first contract may be tempting for lawmakers seeking labor lobby support, the bill as written would be a practical and logistical nightmare. Collective bargaining is meant to be balanced, not one-sided. This bill puts a lot of power in the hands of labor unions, and fails to take into account the time it takes to negotiate a comprehensive initial contract that will not cause other problems down the road. Rushing the process just means a greater potential for future contract disputes.

Looking Ahead

The Faster Labor Contracts Act is not yet law. It requires Senate passage and the President’s signature before taking effect. However, the bipartisan House vote and the presence of a companion bill with growing Senate support suggest this legislation has meaningful momentum. Employers may want to consider contacting their legislators about this bill so that their opinions do not go unheard. Employers currently in protracted labor negotiations should consider adjusting their bargaining strategies if this legislation gets closer to final passage and signature.

We will continue to monitor this legislation as it moves through the Senate, so follow us for updates as the situation evolves.

June 2, 2026June 2, 2026 by Elizabeth Mincer

DOL Finalizes Major Overhaul of Union Financial Reporting Requirements

By: Elizabeth Mincer

On May 29, 2026, the U.S. Department of Labor announced a final rule that provides a significant update to labor union financial reporting requirements. Issued by the DOL’s Office of Labor-Management Standards (OLMS), the rule modernizes the Form LM-2 annual financial disclosure report and creates a new enhanced “Form LM-2 Long Form” for the nation’s largest unions. The rule will be effective July 1, 2026, and applies prospectively to labor organizations whose fiscal years begin on or after that date.

The New Form LM-2 Long Form

The centerpiece of the final rule is the creation of a new Form LM-2 Long Form, which will be required for labor organizations with $40 million or more in annual receipts. The DOL estimates that approximately 99 labor organizations will be required to file this enhanced form. The Form LM-2 Long Form includes 32 schedules and substantially expands itemization and disclosure requirements for the largest unions. Among the most notable additions is a new Schedule 32 requiring disclosure of foreign transactions—any individual receipt or disbursement of $5,000 or more involving a foreign entity or individual, or total transactions with a single foreign entity aggregating to $5,000 or more during the reporting period. The Form LM-2 Long Form also adds seven new schedules requiring itemization of receipt categories that were previously reported only as aggregate lump sums, including dues and agency fees, per capita tax, fees and fines, sales of supplies, rents, and receipts on behalf of affiliates.

Key Changes to the Revised Form LM-2 and Other Forms

The revised Form LM-2 now applies to labor organizations with annual receipts between $350,000 and $39,999,999, an increase from the prior $250,000 threshold. The revised form includes 24 schedules and shares many of the structural improvements found in the Long Form. The rule also requires disclosure of subcategories of information previously set forth as combined reporting categories—such as by splitting “Representational Activities” into “Contract Negotiation and Administration” and “Organizing,” and splitting “Political Activities and Lobbying” into separate “Political Activities” and “Lobbying” schedules—so that union members can more easily evaluate their union’s spending priorities.

For smaller labor organizations, the rule raises the Form LM-3 threshold from $10,000 to $25,000, and allows organizations with receipts below $25,000 to file the abbreviated Form LM-4. The DOL estimates that this will significantly reduce the reporting burden on smaller unions.

Transparency and Anti-Corruption Goals

The DOL has justified these changes in the name of transparency. The rule will further empower union members to monitor their organization’s financial affairs and to make informed choices about leadership and direction. It should also serve as a deterrent to fraud and embezzlement and aid in their detection. OLMS Director Elisabeth Messenger stated that the rule “fine tunes reporting requirements for larger labor organizations – many of which report tens of millions of dollars in assets each year – and adjusts thresholds for smaller labor organizations to increase transparency for America’s hardworking union members and ensure reporting requirements keep pace as labor organizations evolve.”

Implementation Timeline

Although the rule’s effective date is July 1, 2026, no labor organization will be required to file the new or revised forms until 90 days after the conclusion of its first fiscal year that begins on or after July 1, 2026. As a result, the earliest any labor organization will be required to file a new or revised LM report is after June 30, 2027. OLMS has stated that the new and revised LM forms will be made available on its Electronic Forms System on or before June 30, 2027. Thus, it will be at least a year before the public can review information provided pursuant to these updated disclosure requirements.

Finally, it is possible that large labor unions opposing this new rule will assert challenges in court to try to stay its implementation. We will continue to follow any related developments.

April 13, 2026April 13, 2026 by Elizabeth Mincer

Trump Nominates DOL Official James Macy to NLRB, Renominates Democrat-Appointed David Prouty

By Elizabeth Mincer

On April 13, 2026, President Trump nominated James Macy, who currently serves at the U.S. Department of Labor and was previously a management-side labor attorney, for a seat on the NLRB. If confirmed by the Senate, Macy would give Republicans a commanding 3-1 majority on the five-member Board. This is significant because, traditionally, the NLRB does not vote to overrule its own precedent unless there is a 3-vote majority.

At the same time, Trump nominated Democrat-appointed David Prouty, a former union lawyer who has served on the Board since 2021, for a second term. This dual-nomination is in line with the historic practice of nominating a member from the opposing party as a trade to get the majority party’s nomination passed through the Senate.

If this fourth seat is filled, there will still be a fifth seat open. It is likely that President Trump will strategically keep this seat empty through his term, unless he decides to buck tradition by appointing a fourth Republican nominee (assuming he could get this fourth nominee through the Senate).

For many years, Macy worked in private practice, focusing on various employment-related issues. He then joined the Department of Labor in September 2025 as the acting head of the Wage and Hour Division, which enforces federal wage laws.

Macy’s nomination is another step forward in normalizing NLRB operations. The Board lacked a quorum for most of 2025 after President Trump took the unprecedented step of firing Democrat-appointed Gwynne Wilcox. While legal battles carried on, the Board was unable to issue decisions for months. It was not until December 2025 that the Senate confirmed two Trump nominees — Boeing labor counsel Scott Mayer and career NLRB lawyer James Murphy — restoring the Board’s quorum. Murphy became NLRB Chair in March 2026.

Since the restoration of the Board’s quorum, the Board has been tackling the backlog of cases and starting to shift Board policy. However, both members stated during their confirmation proceedings that they would not break with the NLRB’s longstanding practice of requiring three votes to overrule precedent. Thus, major Biden-era decisions, such as bans on captive audience meetings and restrictions on employer work rules, have remained intact.

Macy’s confirmation would supply that critical third vote, potentially opening the door to begin rolling back Biden-era NLRB decisions that boosted union organizing and drew sharp criticism from business groups. That said, the Board has had a slow start, and it takes time for good test cases to percolate up on appeal. Further, the Sixth Circuit Court of Appeals recently dealt a potentially significant blow to the Board’s adjudicatory powers, finding that it engaged in unlawful rulemaking with respect to bargaining orders through its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023). See Brown-Forman Corp. v. NLRB, 24-2107 and 25-1060 (Mar. 6, 2026).

The Senate confirmation process takes time, and there is no guarantee that Macy and Prouty will make it through. However, it is a good sign that the nominations have occurred now, as Prouty’s seat expires this August. This provides several months to navigate the Senate confirmation process. If all goes smoothly, there should not be another gap in the Board’s quorum.

We will continue to monitor the confirmation process and developments at the NLRB, so follow us for updates as the situation evolves.

April 9, 2026April 9, 2026 by Adam Keating

NLRB Clears Path for Amazon to Challenge Staten Island Union Certification in Federal Court

By Adam Keating

On April 3, 2026, the National Labor Relations Board issued its long-anticipated decision in Amazon.com Services LLC, 374 NLRB No. 82, ordering Amazon to recognize and bargain with the Amazon Labor Union, International Brotherhood of Teamsters, Local 1 (“ALU-IBT”) at its JFK8 fulfillment center in Staten Island, New York. The decision closes one chapter of what has become the most closely watched private-sector organizing campaign in a generation, and opens the next, as Amazon is now positioned to test the validity of the underlying certification in federal appellate court.

Background

The ALU’s election victory at JFK8 in April 2022 was a watershed moment for the American labor movement. A grassroots, worker-led union, organized largely through social media and in-person outreach at a bus stop outside the facility, defeated one of the world’s largest employers in a representation election. Amazon promptly filed objections to the election, alleging misconduct by the Union and the Board’s regional office that it argued tainted the results and warranted a new vote.

Those objections wound their way through the Board’s administrative process for years. A hearing officer recommended overruling Amazon’s objections, and the Regional Director ultimately certified the ALU as the exclusive bargaining representative. Amazon then refused to bargain and, in the process, utilized a classic “test of certification” maneuver that allows an employer to obtain judicial review of the underlying representation determination by forcing an unfair labor practice finding that can be appealed to a United States Court of Appeals.

The Board’s Decision

The Board’s decision in Amazon.com Services LLC follows a well-worn procedural path. The Acting General Counsel moved for summary judgment on the 8(a)(5) refusal-to-bargain complaint, and the Board granted it. Consistent with its longstanding rule, the Board declined to permit Amazon to relitigate in the unfair labor practice proceeding any issue that was or could have been raised in the representation case. The Board found that Amazon violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the ALU-IBT and ordered Amazon to do so upon request.

The Board also extended the certification year (the one-year period during which a newly certified union’s status is generally irrebuttable) to run from the date Amazon commences good-faith bargaining, following the Mar-Jac Poultry Co. framework. Amazon was further directed to post a notice to employees at the JFK8 facility.

Notably, the ALU-IBT’s affiliation with the International Brotherhood of Teamsters, which occurred after the original certification, did not present a barrier to the Board’s order. The Board treated the affiliated entity as a successor to the originally certified union for purposes of the bargaining obligation.

What Comes Next

The practical significance of the decision lies not in the Board’s order itself, which was largely a foregone conclusion once Amazon adopted a test-of-certification posture, but in what it enables. Amazon can now petition a federal Circuit Court to review the Board’s order, and in doing so, challenge the validity of the April 2022 election on the merits. Amazon has publicly signaled that it intends to do exactly that, arguing that the election was fundamentally flawed and that the Board’s regional office improperly influenced the outcome.

The appellate battle will likely center on Amazon’s objections to the conduct of the election, including claims related to the Board’s handling of the voting process and the ALU’s electioneering tactics. The Circuit Court will review the Board’s factual findings under a substantial evidence standard, but questions of law, including the Board’s application of its own election rules, will receive closer scrutiny.

Takeaways for Employers

The test-of-certification route remains the primary path to judicial review, but it is not cost-free. Amazon’s refusal to bargain triggered an extension of the certification year, meaning the ALU-IBT’s protected status as bargaining representative will be prolonged. Employers that adopt this strategy should understand that the clock does not run in their favor while the appeal is pending.

Election objections must be thoroughly developed in the representation proceeding. The Board will not entertain new arguments or evidence in a subsequent 8(a)(5) case. Amazon marshaled its objections extensively in the representation proceeding, which is precisely the right approach — any employer that fails to do so will find the courthouse door effectively closed.

Union affiliations do not reset the bargaining obligation. The ALU’s decision to affiliate with the Teamsters did not give Amazon a new basis to refuse recognition. Employers facing a similar situation, where an independent union affiliates with an established international, should not assume the affiliation creates a viable defense to a bargaining demand.

High-profile organizing campaigns generate sustained Board scrutiny. The JFK8 campaign attracted extraordinary public attention, and the Board’s handling of the case reflects the significance the agency attaches to it. Employers in similar situations should anticipate that the Board will move deliberately and that any procedural missteps by the employer will be carefully examined.

April 6, 2026April 6, 2026 by Elizabeth Mincer

Union Election Petition at Shipping Company Dismissed After NLRB Region Finds Supervisory Status

By Elizabeth Mincer

On March 31, 2026, Region 21’s Regional Director dismissed an election petition for a proposed unit of workers at a shipping facility, finding that they were all supervisors. See American President Lines, LLC, 21-RC-337981 (Mar. 31, 2026). The decision offers a detailed example for transportation and logistics employers seeking to understand how the NLRB evaluates supervisory status under Section 2(11) of the NLRA, and it provides practical lessons on how to structure frontline supervisory roles to withstand legal scrutiny.

Background

The employer operates an international shipping network. The clerks at its Long Beach facility were already represented by the Longshoremen’s union. The petitioned-for unit consisted of four classifications: a Detention Demurrage Storage and Monitoring Manager (“DDSMM”), a Regional Collections Manager (“RCM”), four Cargo Flow Supervisors (“CFSs”), and two Cargo Flow Managers (“CFMs”). These eight individuals served as the immediate supervisors of the clerks.

The employer contended that the petitioned-for unit was improper because each of the individuals was a statutory supervisor excluded from the Act’s protections. The hearing lasted 13 days, and the matter itself was left pending for almost two years while the Regional Director assessed the evidence.

Supervisory Status and Section 2(11)

Section 2(11) of the NLRA defines a “supervisor” as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, provided the exercise of such authority is not merely routine or clerical in nature but requires the use of independent judgment. As the Board explained in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), the party asserting supervisory status must demonstrate that the individual (1) possesses authority over at least one of the twelve enumerated supervisory functions, (2) exercises that authority with independent judgment rather than in a merely routine or clerical fashion, and (3) does so in the interest of the employer. In almost all situations, the employer bears the burden of proof. Purely conclusory evidence is insufficient.

Regional Director’s Analysis

Assignment of Work

The Regional Director found that the employer did not present sufficient evidence to establish that the supervisors had authority to “assign” work within the meaning of Section 2(11). Under Oakwood, “assignment” involves designating an employee to a place, appointing an employee to a time, or giving significant overall duties to an employee. Here, the clerks’ overall duties were determined by their respective job descriptions set forth in the collective bargaining agreement, and the clerks generally performed the same types of tasks each day without requiring detailed instructions from their supervisors. When supervisors directed clerks to perform specific tasks — such as handling an urgent customer dispute, following up on an overdue account, or sending transport orders to truckers — those amounted to discrete task assignments rather than the significant overall designation of duties contemplated by the statute.

Responsible Direction of Work

By contrast, the Regional Director did find that the supervisors “responsibly direct” the work of clerks, exercising independent judgment in doing so. This finding turned on the concept of accountability: unlike mere assignment, responsible direction requires proof that the supervisor is accountable for the proper performance of tasks by subordinate employees.

There was significant evidence supporting this factor, as each supervisor oversaw a team of four to eleven clerks and provided daily oversight to ensure tasks were completed timely and correctly. Examples included: (1) preparing priority dispute reports and directing how the dispute should be handled; (2) establishing deadlines for collectors to follow up on overdue accounts and having authority to approve sending accounts to third-party collections; (3) managing excessive storage fees and taking action to reduce costs; and (4) having aspects of their performance metrics based on the performance of their subordinates.

The performance evaluation piece was key. The supervisors could face positive or negative consequences based on the performance of their clerks. And, their performance evaluations served as the basis for merit-pay increases and promotions. Thus, the supervisors were held accountable for how the employee clerks performed.

Adjustment of Grievances

The Regional Director also found that the supervisors had authority to adjust grievances (i.e., to resolve workplace complaints beyond minor disputes and to use independent judgment in doing so).

In this case the clerks were in a union. While, as a legal matter, subordinate employees do not have to be in a union for this factor to apply, here, the Regional Director found that the direct supervisors had authority to address certain contractual grievances pursuant to the CBA’s grievance procedures.

Specifically, the first step of the CBA’s grievance procedure required certain disputes to be discussed with the employee’s immediate supervisor, and the supervisors at issue here served in that capacity. The Regional Director found that adjudicating these disputes required the exercise of independent judgment because certain CBA provisions could be vague and the supervisors were tasked with interpreting their meaning and weighing multiple factors to assess whether the grievance had any merit.

Effective Recommendation of Hiring

The Regional Director also found that the supervisors effectively recommended the hiring of ten new clerks earlier that year. The supervisors served as the sole interview panel, were supplied with candidates’ resumes and rating sheets, conducted the interviews, completed written evaluations, and provided the recommendations, which the company adopted. Record evidence also showed that supervisors had interviewed and recommended candidates for hire on at least one prior occasion, in 2021.

Secondary Indicia

Finally, the Regional Director further found that secondary indicia supported the conclusion of supervisory status.

Secondary indicia are factors other than those enumerated in Section 2(11) of the Act. Secondary indicia, standing alone, are insufficient to establish supervisory status. But, they can help tip the scales. Secondary indicia of supervisory status include, but are not limited to, the individual’s: designation as a supervisor; attendance at supervisory meetings; receipt of management memos; responsibility for a shift or phase of the employer’s operation; authority to grant time off to other employees; responsibility for inspecting the work of others; responsibility for reporting rule infractions; receipt of privileges exclusive to members of management; and compensation at a rate higher than the employees supervised.

Here, the Regional Director found evidence that clerks viewed the supervisors as their supervisors; that the supervisors attended supervisory meetings; that they managed time-off requests and team attendance; that they inspected clerks’ work for errors; and that they had authority to request temporary employees from the hiring hall.

Confidential and Managerial Status

Separately, the Regional Director declined to find the DDSMM and RCM were confidential employees, concluding that the record was insufficient to show they had regular access to advance information regarding the employer’s bargaining strategy. Similarly, the Regional Director rejected the employer’s argument that the CFMs were managerial employees, finding that the CFMs did not formulate employer policy but merely implemented strategies to ensure timely completion of team work.

Key Takeaways for Employers

A key issue for employers in any union organizational campaign is the identification of supervisors and higher-level managers, as these individuals are not covered by the Act and should be excluded from any bargaining unit. When it comes to the frontline, direct supervisors, the line-drawing can be difficult, as there is often overlap in the performance of tasks. But, it is an important line to draw.

Employers need to think about this issue now; waiting until a union issues a demand for recognition or files an election petition to figure out if a worker is a supervisor or an employee puts an employer on the back foot. Under current election rules, an employer may have as little as one week to put together its positions and prepare for a hearing. The more clear-cut an employee’s supervisory status is, the less likely that supervisor is to be swept up in a union organizing petition (and if they are, the more likely that the employer can establish sufficient evidence to properly exclude them from the unit).

Things to consider:

Are direct supervisors held responsible for the work of their subordinates? What evidence is there of this responsibility?
Do the direct supervisors exercise independent discretion in making decisions? Is this clearly encapsulated by their job description? How is such decision-making documented?
Do employees understand that the individual directly above them is their supervisor? Do supervisors attend separate management meetings? In what ways are the supervisors treated differently from the employees they oversee?

Conclusion

This decision is a relatively thorough application of the Board’s Oakwood Healthcare framework and a reminder that supervisory status under Section 2(11) must be grounded in concrete, specific evidence rather than conclusory assertions.

For employers in the transportation and logistics sector, the case underscores the importance of building a deliberate supervisory infrastructure — one in which direct supervisors have authority to exercise independent discretion with such authority clearly documented. Employers who proactively structure and document these supervisory functions will be better positioned to defend the exclusion of their supervisors from bargaining units if challenged.

Note: At the time of publishing, this Regional Director decision had not been formally adopted by the Board.

This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Please consult qualified labor and employment counsel for guidance specific to your situation.

March 30, 2026March 31, 2026 by Elizabeth Mincer

NLRB Rules in Favor of Hospital That Discharged Employee for HIPAA Violations During Union Campaign

By Elizabeth Mincer

On March 26, 2026, in a 2-1 decision, the Board held that a hospital lawfully discharged a radiology technician because the employer demonstrated that it would have terminated the employee even absent her protected union activity. See St. Anthony Community Hospital, 374 NLRB No. 77 (2026). The decision offers important guidance for employers navigating workplace investigations that involve employees who engage in union organizing.

The Facts

The employee was a long-tenured radiology technician who was also a lead union organizer. During the union organizing campaign, it was discovered that this employee had accessed a patient’s medical records without authorization and shared that patient’s medical information in violation of HIPAA.

The hospital discovered the breach through the employee’s mother-in-law. The mother-in-law was a receptionist for a chiropractor. A hospital manager, whose husband was in the hospital for medical treatment, happened to visit that chiropractor. While conducting intake for the visit, the mother-in-law mentioned to the manager that she knew the manager’s husband was in the hospital. The receptionist said that her daughter-in-law, who was an x-ray technician, had been updating her about his condition. The manager reported this to the hospital’s compliance department.

The hospital conducted an investigation, which revealed that the employee had accessed the husband’s electronic medical records, even though she had not performed any imaging on him that day. When interviewed, the employee denied disclosing any patient information and stated she could not specifically recall why she accessed the chart, offering only that doctors frequently asked technicians to pull records for patients they had not imaged. Ultimately, the hospital decided to discharge the employee for violating HIPAA policies.

**The Wright Line Standard**

The Board analyzed the discharge under the framework established in Wright Line, 251 NLRB 1083 (1980), which governs cases alleging that an employer took adverse action against an employee because of union or other protected activity.

Under Wright Line, the NLRB’s General Counsel bears the initial burden of showing that the employee engaged in protected activity, the employer knew of that activity, and the employer harbored animus against it. Once the General Counsel meets this initial burden, the framework shifts the burden to the employer to demonstrate that it would have taken the same adverse action even in the absence of the employee’s protected activity.

The employer does not necessarily have to prove the employee actually committed the alleged misconduct; it must show only that it held a reasonable belief the employee committed the offense and acted on that belief. However, the employer does need to establish that its reasons were not pretextual (i.e., false reasons or reasons not actually relied upon).

The Board Majority’s Analysis

In this case, the Board found that the hospital met its burden under Wright Line that, regardless of the employee’s union activity, it would have discharged her.

Importantly, the Board emphasized that the investigation was triggered by a manager who had no knowledge of the employee’s union activity and no apparent motivation to fabricate a complaint. Further, the hospital’s audit corroborated the complaint because it showed that the employee had, in fact, accessed the patient’s electronic file, including ICU records, and that this was outside the scope of a radiology technician’s typical duties.

Also worth noting is that the Board found the employer acted in accordance with its disciplinary practices and procedures. The employer was able to establish that it had terminated other employees for comparable HIPAA violations.

Accordingly, the Board concluded that the hospital had a reasonable belief that the employee had engaged in misconduct and that its decision to discharge her was not pretextual.

(Note: Member Prouty (D) dissented, arguing that the hospital’s investigation was inadequate, that it ignored exculpatory evidence and plausible explanations, and that the record supported a finding of pretext.)

Key Takeaways for Employers

As an initial matter, this case illustrates a turning of the tides at the NLRB. For almost a year, the NLRB did not have a quorum and was unable to issue decisions. Now that the Board has the minimum three-member quorum (the NLRB may have up to five members), we are starting to see a shift in how precedents such as the Wright Line standard will be applied.

Regarding the practical takeaways, this case demonstrates the importance of treating employees consistently and fairly when it comes to investigatory and disciplinary matters.

It can be particularly difficult to address employee misconduct when it occurs during a union organizing campaign, during a pre-election period, or in the course of other protected activity. Consistency and fairness are key when approaching these situations, as these considerations go to the forefront of defending against an unfair labor practice charge.

First, the investigation itself must be consistent and fair. This includes giving the individual an opportunity to tell their side of the story and collecting evidence from multiple sources. Avoid jumping to conclusions; the investigation should be completed step by step.

Second, the decision needs to be consistent and fair. Consistent with respect to the way the employer has treated other employees in similar situations, and fair in terms of its proportionality.

Third, as one of the elements that the Board reviews in an adverse action situation is whether there was union animus, the decisionmaker should be someone who can make an objective, consistent, and fair decision.

While navigating employee misconduct can be difficult, particularly when union activity is ongoing, it is not impossible. And, as seen here, the Board has provided important clarity about how to assess a disciplinary decision under the Wright Line test.

March 27, 2026May 26, 2026 by Elizabeth Mincer

Captive Audience Speeches: What Employers Should Know About This Evolving Landscape

By Paige Carey and Elizabeth Mincer

The legal landscape surrounding “captive audience” speeches has shifted significantly in recent years and continues to evolve at both the federal and state level. Between a landmark change in precedent from the Biden-era NLRB—one that may not survive under the current Trump-era Board—and a growing wave of restrictive state legislation, this is an area that every employer navigating union activity should have on its radar.

By way of background, the term “captive audience” speech refers to a mandatory meeting where an employer gathers employees (typically during work hours) to share its perspective on, and opposition to, unions. The legal foundation for captive audience speeches dates back to Babcock & Wilcox Co., 77 N.L.R.B. 577 (1948), where the NLRB first held that “compulsory audience” meetings on company property during work time were permitted under Section 8(c) of the National Labor Relations Act (“NLRA”). Thereafter, for over 75 years, Babcock stood as bedrock precedent—until the Biden-era Board upended it.

On November 13, 2024, the Board’s decision in Amazon.com Services LLC, 373 NLRB No. 136 (2024), overturned Babcock and held that mandatory captive audience meetings violate Section 8(a)(1) of the NLRA. The Board reasoned that such meetings had a “reasonable tendency” to interfere with and coerce employees in the exercise of their Section 7 rights.

The decision did carve out a safe harbor for employers by clarifying that meetings to address unionization are permitted under the Act where employees receive reasonable advance notice that: (1) attendance is voluntary; (2) no employee will face discipline, discharge, or other adverse consequences for failing to attend or leaving the meeting; and (3) the employer will not keep records of who attends or does not attend. However, employers may not rely on this safe harbor if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or that failing to attend could result in discharge, discipline, or other adverse consequences.

At the federal level, this restrictive framework may be short-lived. If given the right opportunity, the Trump-era Board is likely to overturn Amazon.com Services, restoring the longstanding Babcock precedent.

That said, even if Babcock is restored, employers will still need to contend with a growing trend in state legislation aimed at banning or restricting captive audience meetings.

Currently, at least thirteen states have enacted such laws, including Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. Several of these state laws have been challenged as preempted by the NLRA, but those challenges have been an uphill battle, and most have been unsuccessful thus far. One exception is California, where enforcement of its law is currently blocked by a preliminary injunction issued by the Eastern District of California.

All in all, employers, particularly those operating across multiple states, should pay close attention to this evolving landscape and ensure their labor relations strategies account for both federal and state-level developments. We will continue to provide updates on captive audience speeches and other labor law developments on this blog.

March 26, 2026March 27, 2026 by Adam Keating

NLRB Clarifies That Cemex Framework Does Not Impose a Filing Deadline for RM Petitions

By Adam Keating

In a decision issued on March 25, 2026, the National Labor Relations Board provided important guidance on the scope of its 2023 Cemex Construction Materials Pacific LLC decision, holding that the framework established in that case does not create an enforceable deadline for employers to file petitions for representation elections. The ruling, issued in St. John’s College, Case 28-RM-337949, offers welcome clarity on an issue that has generated significant uncertainty among employers since Cemex was decided.

Background: The Cemex Framework

As many employers are now aware, the Board’s 2023 Cemex decision marked a significant shift in labor law by establishing a new framework governing employer responses to union demands for recognition. Under Cemex, when a union presents an employer with a demand for recognition supported by evidence of majority support among the relevant workforce, the employer has two options: voluntarily recognize the union, or “promptly” file a petition for an election — referred to as an RM petition in Board parlance. If the employer fails to act promptly, or if it commits unfair labor practices that undermine the election process, the Board may impose a bargaining order requiring the employer to recognize and bargain with the union without an election.

The Cemex decision indicated that “promptly” would ordinarily mean within approximately two weeks of the union’s recognition demand. Since its issuance, the decision has led to a notable increase in employer-filed RM petitions, as employers have sought to avail themselves of the election option rather than accede to voluntary recognition.

One significant area of ambiguity, however, has been whether the two-week guideline constituted a hard-and-fast filing deadline — and, if so, what consequences would attach to a late filing at the representation case stage.

The St. John’s College Decision

The St. John’s College case presented this question directly. The matter arose when the Communications Workers of America demanded recognition as the representative of a unit of graduate and undergraduate workers at St. John’s College. The college subsequently filed an RM petition, but a regional director dismissed the petition on the ground that it had not been filed within the timeframe contemplated by Cemex.

The Board reversed the regional director’s dismissal. In doing so, the Board held that Cemex did not modify the existing procedural rules governing the processing of representation petitions. Regional directors, the Board explained, should evaluate and process RM petitions under the established representation case procedures, without applying Cemex‘s timeliness language as a basis for dismissal.

The Board drew a clear distinction between the representation case process and the unfair labor practice process. As the Board stated, “The question of whether, within the meaning of Cemex, an RM petition was ‘promptly’ filed or whether ‘unforeseen circumstances’ excuse a later filing are properly left to unfair labor practice proceedings.” In other words, the timeliness of an employer’s RM petition filing is relevant only in the context of a subsequent unfair labor practice proceeding — not as a threshold barrier to the petition being processed.

Key Takeaways for Employers

This decision carries several practical implications for employers navigating the Cemex landscape.

First, employers should understand that an RM petition will not be dismissed at the representation case stage solely because it was filed outside the approximate two-week window referenced in Cemex. Regional directors will process such petitions under the Board’s standard procedures.

Second, however, employers should not interpret this ruling as eliminating the importance of acting promptly. The timeliness of an RM petition filing remains a relevant consideration in unfair labor practice proceedings. An employer that delays filing may still face exposure to a Cemex bargaining order if the Board later determines, in an unfair labor practice case, that the petition was not filed promptly and the employer engaged in conduct that undermined the election process.

Third, the decision underscores the importance of having a well-prepared response plan in place before a union demand for recognition arrives. Employers that are prepared to act quickly when confronted with a recognition demand will be best positioned to preserve their right to an election while minimizing the risk of a Cemex bargaining order.

We will continue to monitor developments in this area as the Board and the courts further refine the contours of the Cemex framework. Employers with questions about how these developments may affect their operations should consult with experienced labor counsel.

March 25, 2026 by Duane Morris

Introducing Our New Labor Relations Blog- Concerted Action

We are pleased to announce the launch of our new blog dedicated to traditional labor law and labor relations issues. As the landscape of workplace organizing, collective bargaining, and union activity continues to evolve, staying informed and up to date remains important for employers navigating these complex issues. This blog will serve as a timely, practical resource for in-house counsel, human resources professionals, and business leaders who need to understand how developments at the National Labor Relations Board, in the courts, and at the state level affect their operations and workforce strategies.

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