Union Organizing – 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.

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.