Summary of NLRB Decisions for Week of October 27 - 31, 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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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No Unpublished R Cases Issued.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No Unpublished C Cases Issued.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

North Mountain Foothills Apartments, LLC, Board No. 28-CA-286885 (reported at 373 NLRB No. 26) (9th Oct. 28, 2025)

In a published opinion, the Ninth Circuit enforced the Board’s order that issued against this Company that manages an apartment complex in Phoenix, Arizona, where it committed unfair labor practices after discovering that a newly-hired maintenance technician was discussing his wages and working conditions with others at his workplace.  The Board (Chairman McFerran, Members Wilcox and Prouty) found that the Company violated Section 8(a)(1) when it interrogated the technician about discussing his wages, orally promulgated an overly broad and discriminatory directive prohibiting him from discussing his wages and housing subsidy with other employees, and prohibiting him from discussing pest control issues with third parties.  The Board also found that the Company unlawfully threatened him with unspecified reprisals if he continued to engage in protected activities, and later discharged him for engaging in actual or perceived protected activities.

On review, the Court rejected the constitutional challenges that the Company raised to the removal protections afforded to the NLRB’s Administrative Law Judges and Board Members, the Board’s failure to provide the Company with a jury trial, and the combination of functions exercised by the NLRB as an agency.  After finding that it could reach the issues, the Court first held that the removal challenges failed because the Company had not shown that it was actually harmed by the removal protections, citing Collins v. Yellen, 594 U.S. 220 (2021), and CFPB v. CashCall, Inc., 35 F.4th 734 (9th Cir. 2022) (“[A]t a minimum, the party challenging an agency’s past actions must . . . show how the unconstitutional removal provision actually harmed the party.”). 

The Court next rejected the Company’s contention that it was entitled to a jury trial under the Seventh Amendment pursuant to SEC v. Jarkesy, 603 U.S. 109 (2024), because the Board’s Thryv remedies, the Company claimed, were compensatory damages sounding in tort, referring to Thryv, Inc., 372 NLRB No. 22 (2022), enforcement denied on other grounds, 102 F.4th 727(5th Cir. 2024).  To the contrary, the Court held that the Seventh Amendment was not implicated because the Board’s remedies, including its Thryv remedy, are instead make-whole relief designed to restore the status quo ante, citing Macy’s, Inc. v. NLRB, 155 F.4th 1023 (9th Cir. 2025), dec. amend. & reh’g denied (Oct. 20, 2025), petition for cert. filed, (U.S. Nov. 26, 2025) (No. 25-627). 

The Court also rejected the Company’s contention that the combination of investigatory and adjudicatory functions exercised by the NLRB as an agency was inconsistent with separation-of-powers principles and found no violation of the Company’s right to due process. Disagreeing with the Company’s arguments, the Court explained that it has long been settled that such a combination of functions itself does not violate due process rights, citing FTC v. Cement Inst., 333 U.S. 683 (1948), and United States v. Litton Indus., Inc., 462 F.2d 14 (9th Cir. 1972), and noted that the Company had not otherwise demonstrated any basis for a due process violation.

Finally, on the sole challenge to the Board’s unfair-labor-practices that was preserved for review, the Court held that substantial evidence supported the determination that the Company unlawfully discharged the technician for engaging in actual or perceived concerted activities.  In doing so, the Court agreed with the Board that discussing compensation with other workers qualifies as protected concerted activity under the Act. Agreeing with the Board’s Wright Line analysis, the Court found that the Company had not shown its defensive claim that it had instead fired the technician for poor work performance. 

The Court’s opinion is here.

Tracy Auto, L.P. dba Tracy Toyota, Board No. 32-CA-260614 (reported at 372 NLRB No. 101) (9th Cir. Oct. 28, 2025)

In an unpublished opinion, the Ninth Circuit enforced the Board’s order that issued against this car dealership in Tracy, California, where technicians and foremen are employed in its service department. The unfair labor practices found in this case came after the service technicians went on strike following a manager’s denial of their demand that Toyota recognize the Machinists and Mechanics Lodge No. 2182, District Lodge 190, International Association of Machinists and Aerospace Workers, AFL–CIO, as their bargaining representative.  On review, the Court held that the Board’s findings were supported by substantial evidence and found a challenge to the remedial order jurisdictionally barred from review.

In the underlying unfair-labor-practice case, a complaint was issued alleging that after the service technicians walked out on strike in response to Toyota’s refusal to recognize the Union, Toyota hired seven replacement workers and violated Section 8(a)(3) and (1) by failing to reinstate the economic strikers after the strike ended and they had made unconditional offers to return to work in May 2020.  The complaint also alleged that Toyota violated Section 8(a)(3) and (1) by refusing to reinstate two former strikers when vacancies arose in June and July 2020. 

In August 2020, the employees voted for union representation.  Toyota filed election objections, which included claims that two foremen were Section 2(11) supervisors who engaged in objectionable, prounion conduct.  The election objections and complaint allegations were consolidated for hearing.  While the hearing was underway, it was further alleged that Toyota coercively interrogated the two foremen by subpoenaing their communications with Counsel for the General Counsel.

The Board (Chairman McFerran and Members Kaplan and Wilcox) found the unfair labor practices as alleged.  Further, the Board determined that the foremen were not statutory supervisors, and overruled Toyota’s claims of objectionable supervisory pro-union conduct.  Lastly, the Board found that the subpoenas issued to the two foreman were unlawfully coercive.

On review, the Court held that substantial evidence supported the unfair-labor-practice findings, and that the Board properly determined that the two foremen were not statutory supervisors. In doing so, the Court agreed with the Board that the two job vacancies to which the foremen were entitled to be returned were genuine, and that the pre-strike complement of employees was nineteen, rather than seventeen as Toyota contended.  On the issue of supervisory status, the Court held in agreement with the Board that, among other points, the foremen did not exercise the requisite independent judgment in assigning technicians because assignments were dictated by automated systems.  In turn, the Court held that Toyota’s claim that the subpoena was lawful failed because it was based solely on the claim of supervisory status.  Finally, the Court held that Toyota’s challenge to the Board’s ordering of remedial relief consistent with Thryv, Inc., 372 NLRB No. 22 (2022), enforcement denied on other grounds, 102 F.4th 727 (5th Cir. 2024), was barred by Section 10(e) of the Act because Toyota failed to challenge it before the Board.

The Court’s opinion is here.

Hiran Management, Inc. d/b/a Hungry Like the Wolf, Board No. 16-CA-303914 (reported at 373 NLRB No. 130) (5th Cir. Oct. 31, 2025)

In a published opinion, the Fifth Circuit denied, in part, enforcement of the Board’s order that issued against this operator of a bar and restaurant in Houston, Texas, after eight employees went on strike in 2022.  Specifically, the employees went on strike to advocate for better working conditions, such as higher wages, consistent scheduling, and an end to sexual harassment in the workplace.  The Board (Chairman McFerran, Members Prouty and Wilcox) held that Hiran violated Section 8(a)(1) by threatening the employees with reprisal for going on strike, and by later discharging them for engaging in strike activity. 

Before the Court, Hiran did not dispute that it discharged the employees because of the strike, arguing instead that four of the eight employees engaged in unprotected activity because they were supervisors within the meaning of Section 2(3) of the Act.  The Court, however, held that Hiran had waived that affirmative defense by first asserting it only after the close of the unfair-labor-practice hearing.  The Court therefore upheld the Board’s unfair-labor-practice findings in full. 

However, with regard to Hiran’s remedial challenge, the Court held that the Board lacked the authority to order a remedy for “all foreseeable harms” resulting from unfair labor practices, as provided in Thryv, Inc., 372 NLRB No. 22, enforcement denied on other grounds, 102 F.4th 727 (5th Cir. 2024).  The Court explained its holding by stating that “the NLRA permits the NLRB to award only equitable, not legal, relief.”  The Court characterized as “unremarkable” that the Board previously had awarded “monetary relief beyond lost wages,” like medical expenses or lost retirement benefits, which it noted “likely fell under the umbrella of a backpay award.” The Court also stated that such remedies “reimburse an employee only for direct harms caused by unfair labor practices, which is distinct from awarding damages for every foreseeable expense incurred by the employees.” 

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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