6th Circuit says no to NLRB's Thryv remedies

This is what it looks like when you win the litigation battle but lose the war.

Hannah Whitbeck worked as a shift supervisor at a Starbucks. She helped lead a union campaign, and a few months later, Starbucks fired her for leaving one employee alone in the store — a safety violation. The NLRB said that reason was pretext and that she was really fired because of her union activity. Yesterday, the 6th Circuit agreed.

But here's the BUT. While the appellate court agreed that Starbucks unlawfully fired a union organizer, it also held that the NLRB had seriously overstepped its authority when it awarded her significant monetary consequential damages.

Does the NLRA protect the lone-wolf complainer?

When does the National Labor Relations Act protect as "concerted" the workplace complaints of a "lone wolf"? More often than you think.

In Miller Plastic Products, Inc. v. NLRB, A fabricator questioned whether the company at which worked early during the Covid pandemic was truly "essential." He challenged return-to-work protocols at an all-hands meeting and again later during a one-on-one with his manager, and urged a coworker with health risks to speak up. Days later, he was fired for "talking, attitude, and productivity."

🚨 The Fifth Circuit Just Took Aim at the NLRB – And Potentially Every Federal Agency 🚨

This week, the Fifth Circuit handed down a decision in SpaceX v. NLRB that could fundamentally alter how federal labor law—and much of the administrative state—functions.

The court upheld injunctions blocking NLRB enforcement proceedings, ruling that the Board’s structure is likely unconstitutional because its members and administrative law judges are insulated from at-will removal by the President.

When your supervisor flips to Team Union…

Rising Star Coffee Roasters is in the middle of a full-blown labor meltdown—protests, police, firings, a closed store. And right in the thick of it? At least one supervisor who decided to stand shoulder-to-shoulder with the employees attempting to unionize.

That's not just awkward; it's dangerous for an employer. But the employer isn't without remedies. They just have to exercise them with care.

Under the NLRA, supervisors aren't covered “employees” and have zero legal protection to engage in union activity. You can discipline or terminate them for it, as long as you're not punishing rank-and-file employees in the process. The law sees them as management. When they cross the line, they're not "organizing," they're undermining the company from inside the chain of command.

Apple takes a bite of the NLRB in 5th Circuit ruling

In the workplace, not all questions are coercive and not all policy enforcements are discriminatory.
Case in point: Apple v. NLRB, in which the 5th Circuit just handed the tech giant a full reversal, rejecting findings by the Board that the company violated the NLRA by:

1. Coercively interrogating an employee about union activity; and

2. Removing union flyers from a breakroom table.

Let's unpack why Apple won, and what it means for employers navigating union-organizing campaigns.

You want to avoid a labor union in your business? Then don't do this.

Two pediatricians at Cleveland's University Hospitals used an internal physician directory to contact colleagues about forming a union. In response, they say that UH disciplined them for trying to unionize. They've filed unfair labor practice charges with the NLRB.

Section 7 of the National Labor Relations Act protects employees' rights to engage in concerted activity—including organizing a union and discussing it with co-workers. That protection applies whether you're a warehouse worker or a pediatric subspecialist.

Do not undervalue the importance of confidentiality in workplace investigations

After a Costco employee filed a sexual harassment complaint, she and others were required to sign an "Acknowledgement of Confidentiality" form. It prohibited employees from discussing the investigation. 

Later, the company sent a letter instructing her to treat the outcome as confidential, even after the investigation had concluded.

Costco said the practice was necessary to preserve the integrity of the investigation.

A day without associates

BigLaw is under attack—not just from Trump's executive orders targeting law firms that have historically supported his political opponents or oppose his current policies, but from their own employees.

Above the Law reports that associates at some of the nation's biggest law firms are considering going on "recruitment strikes" (i.e., refusing to participate in law student recruiting) if their employers fail to push back against Trump's unlawful orders.

What if these associates take it one step further and actually walk off the job in protest? Would the National Labor Relations Act (NLRA) protect their concerted work stoppage?

This is how NOT to respond to employee complaints

JP Morgan is making waves with its decision to bring employees back to the office five days a week starting in March. But what's making even more waves is its reported crackdown on employee communication about this decision on the company intranet.

Let's talk about why that's problematic from both a legal and practical standpoint:

New NLRB Ruling: Employer "captive-audience speeches" on unionization are now illegal

In a significant decision, the NLRB ruled that requiring employees to attend anti-union meetings under the threat of discipline or termination violates their Section 7 rights. This is a short-term victory for unions and employees—but the landscape may shift again soon.

In Amazon Services LLC, the NLRB held that these mandatory meetings unfairly pressure employees to participate, infringe on their right to choose freely, and create a chilling effect that deters workers from exercising their rights. The Board noted that such meetings amplify an employer's economic power over employees, adding coercion to the message.

How to keep a union out of your business

Workers are organizing at unprecedented rates. From October 1, 2023, to September 30, 2024, the National Labor Relations Board received 3,286 union election petitions, up 27% from the year prior and more than double the number received in 2021. Much of the push comes from service industries like retail, education, and healthcare. Union drives, however, don't start in a vacuum. They happen when employees feel ignored, underpaid, or disrespected.

Here's the hard truth: The best union-avoidance strategy isn't about playing defense or hiring fancy consultants to "bust" a union. It's about being a great employer, period.

This is what an illegal plan closure looks like, and the consequences an employer can face as a result

In December 2020, Quickway Transportation made the decision to close one of its distribution terminals after facing a union organizing drive led by Local 89 of the Teamsters Union. The drivers at the terminal, which served Kroger, had voted to unionize, prompting concerns from Quickway's leadership about potential strikes that could disrupt operations at the distribution center. Fearing financial losses from a possible strike, Quickway chose to terminate its contract with Kroger and ceased all operations at the terminal, laying off all drivers at that facility.

The 6th Circuit upheld the NLRB's finding that Quickway violated the NLRA when it closed its Kroger terminal because the closure was motivated by anti-union animus.

Don't retaliate against unionizing employees

"You're fired!" That's what the Dallas Black Dance Theatre said to its entire company of dancers a mere months after they voted to unionize.

To make matters worse, the employer seemingly admitted its misconduct in a post on its official Instagram page: "It is a decision that DBDT does not take lightly, but one that is necessary to preserve our legacy of professionalism and excellence in dance. Unfortunately, we recently discovered that our dancers engaged in conduct that fails to align with DBDT's standard of performing at the highest level of artistic excellence and violates several of DBDT’s policies."

What does Project 2025 mean for employers? Labor law edition

Today is the 3rd and final part of my series on what Project 2025 means for employers. Today, I examine its proposed impact on the National Labor Relations Act and union-management relations. (You can find parts 1 and 2 here.)

Project 2025 proposes the following seven key changes to the NLRA:

Long live Anchor Brewing! We'll have to wait and see about its labor union. ⚓ 🍻

News broke earlier this month that Hamdi Ulukaya, the billionaire founder of Chobani yogurt, purchased the assets of Anchor Brewing after its former owner, international beer conglomerate Sapporo, had unexpectedly shuttered the brewery nearly a year ago. Anchor was one of the country's few unionized craft breweries. Ulukaya has said that he would hire back as many former employees as possible but didn't know whether the union would be part of his new operations. If he hires enough of the former employees, however, he may not have a choice on the union. That issue will depend on whether Ulukaya's Anchor Brewing is a "successor" of Sapporo's Anchor Brewing.

It's 100% legal to close your business to avoid a labor union

"We have some sad news to share. A process that began last year has reached its conclusion. Today was the last day of service for both cafes of the Wydown, which are now permanently closed." 

That sign hung on the door of both Wydown Coffee Bar locations late last week.

What's so newsworthy about two cafes closing? What if I tell you that the closure happened just five days before their 35 employees were set to vote on unionization?

The employees steadfastly believe that the cafes closed to avoid a labor union. The owners deny their claim and say that they were merely "ready for a change."

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

Bankrupcy, labor unions, and remaining union free

Fair State Brewing, one the nation's first unionized craft breweries, just filed for Chapter 11 bankruptcy protection.

Meanwhile and elsewhere, Aslin Beer Co. just said that it will voluntarily recognize the union petition filed by a group of its taproom employees to join the SEIU.

Evan Sallee, Fair State's founder and CEO, tells Eater than its union has nothing whatsoever to do with the bankruptcy filing.