Elizabeth Mincer – Concerted Action – The Duane Morris Labor Blog

September 24, 2026September 24, 2026 by Elizabeth Mincer

NLRB Affirms in Precedential Decision: Wright Line Test Applies to Discipline for Offensive Conduct

If an employee is disciplined for violating company policy while the employee was engaged in otherwise protected conduct, how should the Board assess whether the discipline was lawful?

On September 23, 2026, the NLRB, in a precedential decision, clarified the test that it will apply in such situations: the traditional Wright Line test. See Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III). After years of back and forth, this decision provides clarity to employers and hopefully marks the end of the shifting standards that made it difficult to address certain misconduct in the workplace.

The Wright Line Test

The Wright Line test, established in Wright Line, Inc., 251 NLRB 1083 (1980), is the NLRB’s burden-shifting framework for determining whether an employer’s adverse action against an employee was unlawfully motivated by the employee’s union or other protected concerted activity under the Act. The General Counsel must first prove by a preponderance of the evidence that the employee engaged in protected activity, the employer knew of it, and it was a motivating factor in the adverse action. If that prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even absent the protected activity. If the employer’s justification is found to be pretextual, the Board need not consider the same-action defense and will find a violation. The Supreme Court approved the Wright Line framework in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

Relevant History

Given that the Wright Line test has been around for 45+ years, it would seem logical to apply it across a wide array of circumstances. But that has not always been so, as the Board has in a number of cases diverged from the Wright Line test and applied separate tests for certain specific types of misconduct, resulting in a hodgepodge of inconsistent standards.

These included:

1. If the employee misconduct occurred during workplace discussions with management, the Board applied the Atlantic Steel four-factor test, considering: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814 (1979).

2. If it was related to social media posts and/or conversations among employees in the workplace, the Board applied a totality-of-the-circumstances test. Desert Springs Hospital Medical Center, 363 NLRB 1824 (2016).

3. If the misconduct was related to picket-line activities, the Board applied the Clear Pine Mouldings standard to analyze whether, under all the circumstances, the nonstrikers would have reasonably felt coerced or intimidated. Clear Pine Mouldings, 268 NLRB 1044 (1984).

These inconsistencies made it even more difficult for employers to navigate tricky disciplinary situations. And, of course, they led to inconsistencies with how the General Counsel prosecuted cases and the Board determined liability.

The Board’s 2020 General Motors Decision

In 2020, the Board decided to eliminate the application of those inconsistent standards, and to apply the traditional Wright Line test more broadly. See General Motors LLC, 369 NLRB No. 127 (2020). This precedential shift was a breath of fresh air, because it provided more predictability for employers, and also gave employers a bit more latitude to enforce civility and EEO policies.

At the time, Chairman Ring commented: “This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace. […] For too long, the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

For more information on the General Motors decision, see our 2020 Client Alert.

The Lion Elastomers Saga

Of course, as it goes with the Board, this did not seem to last long. In 2023, the then Democrat-majority NLRB attempted to overturn General Motors by issuing a decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023) (Lion Elastomers II). However, that case was appealed to the Fifth Circuit, which, in 2024, vacated the Board’s Lion Elastomers II decision, and remanded the case back to the Board, again, to apply the General Motors standard (aka the Wright Line test). For more information about Lion Elastomers II, see our 2023 Client Alert.

At this point, you are probably wondering about Lion Elastomers I. Indeed a long-winding saga, the original Lion Elastomers case had been decided by the Board in 2020. The Board applied the Atlantic Steel test, and found that the employer violated the Act. The employer then appealed the decision to the Fifth Circuit.

After issuing its decision in General Motors, the Board asked the Fifth Circuit to remand the case back down, so that the Board could assess the case under General Motors/Wright Line. The court agreed. However, by the time the case had been remanded, the Board had begun flipping to Democrat-majority control.

In 2023, in another precedential decision, the Board decided not to apply General Motors, and instead to reinstate the various other inconsistent standards that had historically applied.

Of course, the employer appealed again, and it went back to the Fifth Circuit for another round. In 2024, the Fifth Circuit overturned the Board’s decision in Lion Elastomers II, finding that it both exceeded the scope of the court’s remand order and violated the employer’s Constitutional due process rights by failing to provide it with the opportunity to address whether General Motors should be overruled.

The case sat for another two years with the NLRB on remand. (The Board lacked a quorum for a year, and then lacked a 3-person majority for another year, and thus did not issue any precedential decisions.)

Now, the Board, with a 3-1 Republican majority, is able to decide significant, precedential issues, including when to apply the Wright Line test.

What This Means for Employers

For most employers, the effects will be subtle. Regardless of the legal test, employers still need to carefully assess and address situations that involve both protected activity and employee misconduct.

In general, it is and remains unlawful to discipline an employee for engaging in protected activity. Meanwhile, Section 7 of the Act encompasses a broad range of rights, including rights to engage in certain protected speech. For example, just a week prior, the Board found that a tech company unlawfully fired a software engineer who had openly criticized certain workplace policies. For more information on that case, see our Blog Post.

It can become even more complicated when an employee uses profanity or racial epithets during an aggressive tirade. For example, what if an employee complains about a female supervisor on social media, and calls her the b-word or c-word in the process? On the one hand, the speech may be protected under the Act. On the other hand, this would clearly violate an employer’s EEO policy.

While every situation is unique, the Wright Line test gives employers a bit more cover to take action. If, putting aside the protected aspect of the activity, the employer can prove that it would have taken the disciplinary action anyway, then it has a better chance of combating an unfair labor practice charge.

Given the complicated procedural history here, there could be other legal nuances at play. Stay tuned, as our labor team will do a deeper dive on this latest decision, and will update this blog post to include a link to our Client Alert that will have more analysis and examples of what employers can expect moving forward.

September 20, 2026September 21, 2026 by Elizabeth Mincer

NLRB Finds Tech Company Violated NLRA by Firing Employee for Criticizing Workplace Policies

A Bipartisan Board Sends a Clear Message to Tech Employers: Section 7 Protections Apply in Silicon Valley, Too

On September 16, 2026, the NLRB, in a 3-0 published decision, held that Snowflake, a large California tech company, violated the Act when it terminated the employment of one of its software engineers. See Snowflake, Inc., 375 NLRB No. 39 (2026). The Board found that the employee had engaged in protected concerted activity when he complained about a new coding procedure at a group meeting. The NLRB ordered the company to offer the employee full reinstatement and to make him whole for lost earnings, benefits (which may include stock options), and all direct or foreseeable pecuniary harms resulting from his unlawful termination.

Background

The employee originally joined Snowflake in 2019 through an acquisition; he was a co-founder of the target entity and the company hired him as a senior director of engineering when they integrated. There were some issues with his performance in that management role, and he transitioned to a non-supervisory “independent contributor” position on August 3, 2020. Separately, around this time, the company introduced a new “API Change Policy” that established a code-review approval process. A number of the engineers took issue with the new policy.

Four days after the employee transitioned to the “independent contributor” role, at an August 7, 2020 company meeting attended by roughly 25 staff members—including multiple supervisors and managers—the employee raised four concerns that he said his coworkers had discussed with him: (1) the policy’s scope was unclear as to which code changes it covered; (2) having just two individuals serve as approvers could lead to biased reviews; (3) vague standards could result in lowered evaluations and bonuses for engineers who inadvertently failed to comply; and (4) requiring approval from already-overburdened senior personnel could slow the pace of work. The employee used the term “we,” implying that he was speaking on behalf of himself and others. The employee used no threats or profanity. Other engineers echoed similar concerns during the meeting.

After the meeting, there were a couple other instances where the employee pushed back against a company initiative. Ultimately, about two months after the August 7 meeting, management decided to terminate his employment because it determined that he was difficult to work with and disruptive, among other reasons. When the supervisor met with him, the supervisor allegedly said that it was “due to you creating a hostile work environment by soliciting help from your colleagues to retain your job.” The company disputed that this was part of the reason for his termination.

The Board’s Decision

The Board found that the General Counsel established a strong prima facie case under the Wright Line framework, the test that the NLRB applies in cases involving a “mixed-motive” adverse action. The Board concluded that the employee’s comments during the August 7 meeting constituted protected concerted activity under Section 7 of the Act because he complained on behalf of a group of employees and the complaints related to the terms and conditions of their employment. The Board also found that there was evidence that the August 7 comments were a basis for his discharge. This evidence included emails between high-level supervisors and an HR memo citing the employee’s comments as a reason for the separation. The Board reasoned that, even though he had previously received critical feedback about his performance, it was not until he engaged in the protected activity that the company decided to terminate his employment.

Notably, the case was decided unanimously by Chairman Murphy (R) and Members Mayer (R) and Prouty (D). This case shows that while the Board has started to recalibrate certain doctrines adopted during the prior Biden administration, it will still protect what it considers core rights to engage in concerted activity. In other words, this decision reaffirms that the right of employees to band together and bring group complaints to management’s attention is considered a foundational principle of the Act. Employers should not assume that a Board composed of a majority of Republican appointees will rule in favor of the employer in every case.

What This Means for the Tech Industry

Silicon Valley has long prided itself on a culture of open debate, rigorous discussion, and meritocracy. And yet, this decision illustrates how engagement in the kind of vocal pushback that is often encouraged in technical settings can constitute federally protected speech. Managers, particularly those who come from small or rapid-growth start-ups, may not recognize when this speech crosses from mere business disagreement into protected concerted activity.

In this case, for example, the Board rejected the company’s characterization of its API Change Policy as a “purely business/entrepreneurial decision” outside the scope of the Act. The Board found that the policy directly affected working conditions, carried implied penalties for noncompliance, and was therefore a term and condition of employment subject to Section 7 protections. By raising shared concerns about the policy and its potential effects on employees’ terms and conditions of employment, the employee was exercising his rights under the Act.

It is also worth taking note of the pivotal distinction between the employee’s status as an employee when the conduct occurred as opposed to a supervisor/manager. In this case, the employee who filed the charge had originally been a co-founder of the entity that Snowflake acquired; he went from co-founder, to supervisor, to employee, and it was as an employee that his activity was protected. (The Act only protects concerted activity by non-supervisory employees.)

These types of internal hierarchy changes are not uncommon when big companies acquire smaller ones. But, in this case, it led to an interesting dynamic, where there was an individual whom others may have still viewed as an authority figure, but who was no longer a member of management. These types of dynamics are important to keep in mind during post-acquisition integrations.

Final Takeaways

This case serves as a reminder that employers need to tread carefully when employees engage in conduct that could be protected under the NLRA.

Here are some key takeaways:

1. Ensure that your managers and HR team can recognize when an employee’s conduct may constitute protected activity. This right applies regardless of whether a union is involved, and can sometimes be difficult to identify.

2. Be careful if you are focusing on form versus substance. An employee’s right to engage in protected concerted activity typically overrides the form in which the employee communicates their opinion. This means that employees can use an aggressive tone and even profanity to communicate; if it falls under the umbrella of protected conduct, then taking adverse action can violate the Act.

3. When legitimate performance issues arise, document those concerns independently and contemporaneously. Vague references to interpersonal issues and poor teamwork may not be specific enough to defend against an allegation of retaliation (under the Act or other statutes). Employers should ensure that any adverse action is based on legitimate business justifications.

Remember that Section 7 of the Act protects all employees—not just those in traditional blue-collar or unionized settings. As the tech industry grapples with workforce concerns ranging from return-to-office mandates to AI deployment and performance evaluation metrics, employers need to stay apprised of the local, state, and federal laws that apply.

August 26, 2026August 26, 2026 by Elizabeth Mincer

NLRB General Counsel Carey Releases Roadmap for Overturning Biden-Era Labor Precedents

On August 26, 2026, NLRB General Counsel Crystal Carey issued Memorandum GC 26-04, providing the clearest signal yet of the substantive changes she intends to pursue with the Board. She identified more than a dozen Biden-era precedents that her office has either asked the Board to reconsider or that she intends to challenge when an appropriate case arises. This memo is a significant development and offers a concrete preview of Carey’s plan to return to sounder labor policy.

It is well worth the time to take a moment to read GC Memo 26-04. However, here are some of the highlights:

Captive Audience Meetings. Carey is advocating to reverse Amazon.com Services LLC, 373 NLRB No. 136 (2024), which broke with more than 75 years of precedent by holding that it violated the Act to hold mandatory meetings where employers express their views on unionization. Carey has filed a motion encouraging the Board to restore the longstanding Babcock & Wilcox standard which, since 1948, had permitted employers to require employee attendance at such meetings during paid work time. If the Board reverses Amazon, employers will once again have a critical tool for communicating directly with their workforce during organizing campaigns.

Work Rules Under Stericycle. Carey is advocating to overturn Stericycle, Inc., 372 NLRB No. 113 (2023), which adopted a standard under which facially neutral workplace rules could be found presumptively unlawful if they had a “reasonable tendency” to chill employees from exercising Section 7 rights. In practice, Stericycle called into question routine handbook policies—civility rules, attendance rules, confidentiality provisions, social media policies—and applied an analysis with unpredictable and inconsistent outcomes. Carey’s position signals a return to a more employer-friendly framework that focuses on whether rules explicitly restrict protected activity, rather than speculating about potential chilling effects. (Separately, Carey has instructed regional directors to de-prioritize charges that are based purely on generalized alleged violations of Stericycle, and to focus on more clear-cut violations where an adverse action actually occurred.)

Cemex Bargaining Orders. Carey has announced her intent to challenge Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), which fundamentally altered the union recognition process. Under Cemex, if an employer commits an unfair labor practice that arguably might affect the results of the election, the Board can impose a bargaining order, even before an election actually occurs. Carey described Cemex as “contrary to Supreme Court precedent and sound labor policy” and intends to press for a return to the traditional Gissel/Linden Lumber framework, which afforded greater procedural protections and preserved employees’ right to vote.

Severance Agreements and Employer Speech. Carey has also taken aim at McLaren Macomb, 372 NLRB No. 58 (2023), which restricted employers’ ability to include standard non-disparagement and confidentiality provisions in severance agreements, and Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which narrowed the permissible scope of employer predictions about the effects of unionization. Carey is advocating to return to the established standard in Tri-Cast, Inc., which gave employers broader latitude to communicate their views about potential impacts of union representation without running afoul of the Act.

Additional Priorities and Honorable Mentions. In addition to the above, Carey has signaled that she disagrees with Wendt Corporation and Tecnocap (unionized employers may not make unilateral changes in accordance with their past practices pre- or post-contract), Thryv, Inc. (expanded remedies for charging parties), Lion Elastomers II (broader protections for employee misconduct during concerted activity), and Valley Hospital (dues checkoffs automatically continue after contract expiration).

What Does This Mean for Employers?

Now that the Board has a 3-1 Republican majority, change is certainly on the horizon. From a business standpoint, it is worth analyzing how these anticipated changes may affect operations and employee relations. That said, the cases that General Counsel Carey has called out in the memo remain in effect, despite her advocacy. There is no guarantee that the Board will agree with Carey’s interpretations of the law. There is also no guarantee that the Board, even if it reverses a certain Biden-era decision, will revert back to the prior standard.

Employers should follow these developments closely and work with labor counsel to make strategic decisions about handling live or pending issues that involve the caselaw that Carey has targeted. Companies with pending NLRB charges or active organizing campaigns, in particular, should evaluate whether any of these anticipated shifts present opportunities to preserve favorable arguments on the record.

While the General Counsel’s direction is clear, the pace of change will be case-by-case—and employers who position themselves strategically now will be best prepared to benefit as the law evolves.

July 31, 2026July 31, 2026 by Elizabeth Mincer

NLRB Declines to Find that Bargaining Proposals Can Constitute Unlawful Threats

By: Elizabeth Mincer

On July 29, 2026, the NLRB issued its decision in Inland Waters Pollution Control, Inc., 375 NLRB No. 15, a case that, while resulting in unfair labor practice findings against the employer, contains an important and favorable clarification for management: the mere act of making a bargaining proposal at the bargaining table does not constitute an unlawful threat under Section 8(a)(1) of the Act. Employers engaged in collective bargaining should take note of this decision, which reinforces the right to propose controversial contract language at the table.

Background

The case arose from a labor dispute at Inland Waters Pollution Control, Inc., a Detroit-area sewer repair company whose hourly employees were represented by Teamsters Local 247. During successor contract negotiations in December 2020, the employer proposed adding language to the grievance and arbitration procedure that would allow it to “issue disciplinary actions against employees levying baseless, malicious or harassing grievances,” including “disciplinary steps of time off or termination for serious offenders.” During the bargaining session, the employer’s fleet manager stated the language was necessary because grievances were “just totally out of hand,” and the employer’s attorney told the union’s chief steward that his “excessive amount of grievances” was “a problem” and that he should cut down on “bulls*** grievances.” The employer later withdrew the proposal.

Separately, in April 2021, unit employees voted to reject the employer’s final contract offer and went on strike. Two employees were discharged, allegedly for engaging in union and other protected concerted activities. The ALJ found violations on all counts: two unlawful discharges under Section 8(a)(3) and an independent 8(a)(1) violation for threatening employees’ grievance-filing rights at the bargaining table.

The Board’s Decision

The Board agreed that the discharges were unlawful, applying the age-old Wright Line framework. However, in a significant win for management, Chairman Murphy and Member Mayer reversed the ALJ’s finding that the employer’s bargaining proposal and accompanying statements independently violated Section 8(a)(1). The majority noted that neither the ALJ nor any party cited a case in which the Board had previously found that merely making a bargaining proposal at the table constitutes an unlawful threat. The Board declined the former General Counsel’s invitation to expand Board law in that direction.

Critically, the Board grounded its reasoning in long-standing labor policy favoring “uninhibited, robust, and wide-open debate in labor disputes,” citing Letter Carriers v. Austin, 418 U.S. 264, 273 (1974), and the Board’s historical tolerance of “intemperate, abusive and inaccurate statements” in the context of labor disputes. The majority concluded that the General Counsel failed to prove that the statements at the bargaining table constituted an unlawful threat to discharge employees for filing grievances. Member Mayer further noted that even if the proposal, if agreed to, would have subjected employees to discipline for protected grievance-filing activities, such waivers are lawful under Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), and therefore proposing such a waiver, standing alone, is lawful.

The Dissent

Member Prouty dissented from the majority on these points. He reasoned that the employer’s statements that grievances were “just totally out of hand” and that the chief steward should cut down on “bulls*** grievances”—made in conjunction with the proposal to discipline employees for filing grievances—conveyed that the steward’s protected activity was unacceptable and could lead to discipline or discharge.

Member Prouty argued that just because it happens in the bargaining context does not immunize otherwise coercive statements, citing ExxonMobil Research & Engineering Co. and PRC Recording Co. for the proposition that the Board has repeatedly found independent 8(a)(1) violations based on statements made at the bargaining table. He characterized the employer’s proposal as “a threat cloaked in the garb of a bargaining proposal.”

Importance for Employers

This decision provides some comfort that proposing contract language at the bargaining table—even language addressing employee conduct like grievance filing—should not, standing alone, constitute an unfair labor practice. It also confirms that the rough-and-tumble of collective bargaining remains protected space for candid, even intemperate, exchanges about bargaining positions.

That said, employers should be mindful that this decision does not provide blanket protection: the majority carefully distinguished cases involving threats of retaliatory bad-faith bargaining and emphasized that an unlawful contract proposal could still be evidence of bad-faith bargaining under Section 8(a)(5), even if no such allegation was at issue here.

June 24, 2026June 24, 2026 by Elizabeth Mincer

The Cemex Rules May Be Coming to an End, as Amazon Openly Challenges Current Election Requirements

By Elizabeth Mincer

In August 2023, the NLRB’s then-Democratic majority issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), fundamentally altering the framework for union recognition and employer obligations when confronted with a union’s demand for bargaining.

Before the decision in Cemex, an employer could generally deny or ignore a request for recognition by a union. The union would then have the option of filing a petition for election. This would kickstart a formal election process, during which the Board would assess the appropriateness of the unit, among other issues, and then decide whether to order an election. The parties also could negotiate an election agreement. If an election occurred, eligible voters could cast their ballot anonymously. Under this historic framework, the onus was on the union to file the petition and to establish at least 30% support from an appropriate bargaining unit.

In Cemex, the Board overruled a 1971 case called Linden Lumber, which had long formed the basis of an employer’s right to decline or ignore demands for recognition without consequence. Under Linden Lumber, the Board’s position was that an employer did not violate the Act solely by refusing to accept evidence of majority status other than the results of a Board election. The Supreme Court upheld Linden Lumber in 1974.

Cemex created a new paradigm, whereby a union that obtains signed authorization cards from a majority of employees in an appropriate bargaining unit can present the employer with a demand for recognition. The employer then has two options: voluntarily recognize the union or promptly file an RM petition within two weeks to test the union’s majority status through a secret-ballot election. If the employer does neither, the Board will find that the employer violated Section 8(a)(5) of the Act and will issue a remedial bargaining order. Additionally, Cemex lowered the threshold for issuing bargaining orders when an employer commits unfair labor practices that frustrate a free, fair, and timely election — making bargaining orders the default remedy in such situations rather than simply directing a rerun election.

Anecdotally, many unions still decided to go the route of filing an RC petition, as the two-week RM petition deadline gave employers some additional time to campaign. However, it did mean that unions held more leverage with respect to implementing their organizing strategies. It also meant that employers who were not up-to-date on the new Cemex rules could fall into a trap of mandatory recognition; lack of knowledge of this monumental shift in the rules was not going to be an excuse.

Is Change On the Horizon?

On June 22, 2026, an ALJ issued the first decision applying the Cemex recognition-demand framework to find an unfair labor practice based solely on an employer’s failure to recognize a union or file an RM petition. The case involved one of Amazon’s facilities in California.

In 2024, the Teamsters union had allegedly collected signed authorization cards from about 66% of a group of sorting associates. The employees demanded recognition in October 2024. Amazon did not respond. The Teamsters sent a follow-up communication expressly mentioning Cemex. Amazon did not respond to that either, and did not file an RM petition.

Based on the holding in Cemex, and effectively stating that his hands were tied, the ALJ found that the employer violated Section 8(a)(5) of the Act because: (1) the Union had majority support in an appropriate unit, (2) it demanded recognition, and (3) Amazon neither recognized the union nor filed a petition.

The ALJ acknowledged that Amazon raised “salient” arguments challenging Cemex — including arguments that the new rules conflicted with Supreme Court precedent, violated the Administrative Procedure Act, and implicated the Major Questions and Non-Delegation Doctrines. However, because he was bound to follow extant Board precedent, the ALJ issued a bargaining order requiring Amazon to recognize and bargain with the Teamsters as of the date of the first request for recognition.

Amazon most certainly will appeal this decision to the Board.

Separately, addressing the other part of Cemex, the Sixth Circuit recently rejected the default bargaining-order standard. In Brown-Forman Corp. v. NLRB (March 6, 2026), the court held that the Board exceeded its adjudicatory authority in promulgating the Cemex remedial bargaining standard because it was “neither derived from the case-specific facts nor in furtherance of fashioning a remedy that resolved the parties’ dispute”. Although that holding is currently binding only in the Sixth Circuit, it signals judicial skepticism that may embolden the Board to act.

Perfect Timing for NLRB Review?

The Board currently has a 2-1 Republican majority. With three members, it has a functioning quorum, though both Republican appointees have indicated that they will not shift major precedent without at least three affirmative votes (as is tradition).

Accordingly, with only a 2-1 majority, the Board has thus far declined to overturn major Biden-era precedents. That said, the path to a full reversal for Cemex now appears close at hand. On April 13, 2026, President Trump nominated James Macy to fill the vacant third Republican seat and paired it with a renomination of Democrat David Prouty. If confirmed, the Board would have a three-member Republican majority with the votes needed to overturn Biden-era precedents. By pairing these two nominees together, confirmation is expected to go smoothly, and is likely to occur within the next several weeks.

It may take some time (perhaps more than a year) for the Board to address this specific Amazon appeal. Until then, Cemex still technically controls.

If the Board overturns Cemex, the most likely outcome is a return to the Linden Lumber standard, under which employers could reject card-based demands for recognition and insist that unions seek a secret-ballot election. Employers would no longer face a two-week deadline to file an RM petition after receiving a recognition demand.

If the Board also chooses to use this case as a vessel to overturn other aspects of Cemex, bargaining orders would likely return to the more limited Gissel standard — available only where employer misconduct is so serious as to undermine the possibility of a fair election.

However, the current uncertainty demands that employers remain cautious. Until Cemex is formally overturned, it remains binding law, and the NLRB continues to apply it. Employers outside the Sixth Circuit remain fully exposed to bargaining orders under the existing standard.

Anticipating a shift in the tides, unions will likely preemptively turn back to filing election petitions as the primary way to seek recognition. However, to the extent a union attempts to further utilize the Cemex recognition standard while it remains precedent, an employer caught in the middle of this will need to make a strategic choice: file an RM petition or wait things out in the hope that Cemex will be overturned.

Regardless, employers need to remain vigilant to underground union organizing campaigns. More and more, unions are organizing digitally and through social media, secretly collecting electronic authorization cards. Many employers are shocked when they receive the demand or petition, as they did not see it coming. An informed management team is the key to combatting these tactics, and there is no time like the present to educate front-line supervisors about the signs and risks of unionization.

We will continue to monitor the status of the Cemex standards and related developments. Follow and subscribe for timely updates as Board precedent evolves.

June 10, 2026June 10, 2026 by Elizabeth Mincer

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

By: Elizabeth Mincer

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 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.