Summary of NLRB Decisions for Week of June 23 - 27, 2025
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
No Published Decisions Issued.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Miller Plastic Products, Inc., Board No. 06-CA-266234 (reported at 372 NLRB No. 134) (3d Cir. June 23, 2025)
In a published opinion, the Third Circuit affirmed in part and remanded the Board’s order that issued against this manufacturer of plastic containers at a facility in Pennsylvania. The Board (Chairman McFerran, Members Wilcox and Prouty, with then-Member Kaplan concurring) found, in agreement with the Administrative Law Judge (ALJ), that the Employer violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity, which included expressing concerns about COVID-19-related pandemic protocols and the facility’s operating status during an “all-hands” meeting in mid-March 2020.
In recommending that the Board find the violation, the ALJ applied Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), which had departed from the Board’s prior totality-of-the-circumstances approach to analyzing concerted activity, and rejected the Employer’s claim that it should be permitted to elicit testimony regarding its after-acquired-evidence defense. On exceptions, the Board agreed that finding a violation was warranted under extant law. Further, the Board concluded that Alstate invited unwarranted restrictions on what constitutes concerted activity, overruled Alstate and restored the prior totality-of-the-circumstances standard. Applying that standard, the Board found that the Employer violated Section 8(a)(1) by discharging the employee.
While on appeal, and after the parties filed briefs, the Supreme Court issued Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). The Third Circuit then sua sponte issued an order calling for the parties to submit supplemental briefs on the question of what impact, if any, Loper Bright had on the Court’s review of the Board’s decision.
On the standard of review, the Court “acknowledge[d] that the Board’s construction of the phrase ‘concerted activity’ has shaped our jurisprudence over the years,” and that “Loper Bright did not necessarily displace our earlier precedents merely because they were guided by Chevron.” The Court further stated that “[g]iven the Board’s expertise in matters governed by the NLRA, the Board’s assessment of what constitutes ‘concerted activities’ continues to form ‘a body of experience and informed judgment’ that can aid our analysis,” quoting NLRB v. City Disposal Sys. Inc., 465 U.S. 822 (1984). The Court then undertook a comprehensive recounting of the evolution of the Board’s analysis of the concept of concerted activity, finding that “[c]ertain core principles emerge from that historical analysis.” For reasons stated in that analysis, the Court concluded, as a prior Third Circuit panel had in Alaris Health v. NLRB, 123 F.4th 107 (3d Cir. 2024), that “we need not here resolve whether any deference attaches to the Board’s assessment of what constitutes concerted activity” because “even on plenary review, we agree with the Board’s understanding of ‘concerted activity’ as articulated in the Meyers cases and their progeny,” referring to Meyers Indus., Inc., 268 NLRB 493 (1984) (Meyers I), and Meyers Indus., Inc., 281 NLRB. 882 (1986) (Meyers II).
On the merits, the Court concluded that substantial evidence supported the Board’s determination that the employee’s protected activity was a motivating factor for his discharge, and that the ALJ did not err in disallowing testimony regarding after-acquired evidence. However, the Court held that the Board had not sufficiently assessed the evidence proffered for the Employer’s affirmative defense under Wright Line, and remanded for the Board to address the limited question of whether the Employer would have discharged the employee even in the absence of his concerted activity.
The Court’s opinion is here.
Universal Health Services, Inc. and George Washington University d/b/a The George Washington University Hospital, Board No. 05-CA-216482 (reported at 373 NLRB No. 55) (D.C. Cir. June 27, 2025)
In a published opinion, the D.C. Circuit enforced the Board’s order that issued against this provider of short-term, acute medical care at a facility in Washington, D.C. for unfair labor practices committed while bargaining for a successor contract for a unit of 150 service employees who perform cooking and cleaning work and are represented by 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region. In doing so, the Court held that the Board did not abuse its discretion in vacating its earlier decision (370 NLRB No. 23), in which Member Emanuel had participated and was later found to have been disqualified due to a financial conflict of interest, or by seating a Board Member from the prior panel on the subsequent panel. On the merits, the Court upheld the Board’s unfair labor practices as supported by substantial evidence and consistent with settled law.
After vacating its earlier decision, the Board (Chairman McFerran and Member Prouty; then-Member Kaplan, dissenting) re-adjudicated the case and found that the Hospital violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith, withdrawing recognition from the Union, and unilaterally changing terms and conditions of employment. The Board found that the Hospital bargained in bad faith by insisting on a set of proposals providing for expansive management rights, a prohibition on strikes, and the elimination of binding arbitration. Together, the Board found, those proposals would have deprived the Union of any meaningful representational role and left employees in a worse position than with no contract at all. The Board noted that its bad-faith bargaining finding was buttressed by the Hospital’s insistence on eliminating union security, demand for unfettered discretion over wage increases, and regressive bargaining over arbitration.
On review, the Court agreed with the Board that the Hospital engaged in bad-faith bargaining by pressing the trio of proposals that would have the cumulative effect of stripping the Union’s representational role “to such a degree as to nearly nullify it.” After reviewing each proposal in depth, the Court noted that both the “Courts and the Board alike have found that simultaneous insistence on these provisions, especially when maintained throughout the bargaining period, signals bad faith.” Having concluded that the Board’s bad-faith bargaining finding was supported by substantial evidence and consistent with settled law, the Court also upheld the Board’s findings that the Hospital unlawfully withdrew recognition and unilaterally changed terms and conditions of employment.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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