Background

Ralphs Grocery Co. maintained a mandatory mediation and binding arbitration policy requiring employees to arbitrate employment-related disputes. The policy also contained a provision requiring the parties to maintain the confidentiality of the existence, content and outcome of any arbitration proceeding, and a savings clause stating that employees retained the right to file charges with the NLRB and the Equal Employment Opportunity Commission.

In an earlier 2016 decision, Ralphs Grocery Company I, the Board found similar policies unlawful because they prohibited class and collective actions, interfered with access to the NLRB, and imposed overbroad confidentiality requirements. After Epic Systems upheld class-action waivers in arbitration agreements, the Ninth Circuit remanded the remaining issues to the Board.

The Holding – Key Employer Wins and the Board’s Approval of a Savings Clause

The Ralphs Grocery Company II Board reached a split outcome, with some key wins for employers. First, relying on its prior decision in California Commerce Club, the Board held that employers may require employees to keep the content of arbitration proceedings and the outcomes, awards, or decisions confidential. The Board reasoned that these provisions concern the rules governing the arbitration process itself and are therefore protected by the Federal Arbitration Act (FAA). As a result, such restrictions generally do not violate Section 8(a)(1) of the National Labor Relations Act (NLRA).

The Board, however, drew a distinction between confidentiality regarding what occurs during arbitration and a requirement that employees not disclose the fact that an arbitration proceeding exists or occurred. The Board determined the latter prohibition is not protected by the FAA because it extends beyond the arbitration process itself and functions as a perpetual gag order. Because employees have a right under Section 7 of the NLRA to discuss workplace issues and employment-related disputes with one another, the Board found that maintaining a rule prohibiting disclosure of the existence of arbitration violates Section 8(a)(1).

The Board also rejected the argument that the arbitration agreement unlawfully interfered with employees’ access to the NLRB. The agreement contained a clear provision stating, “All Employees retain the right under the … NLRA to file charges” with the Board. Applying the Board’s current Stericycle standard – i.e., a work rule is invalid if it could be reasonably interpreted to “chill” employees’ exercise of their Section 7 rights – the majority concluded that a reasonable employee would understand from this language that he or she remains free to file charges with the NLRB. Accordingly, the Board found no violation based on alleged interference with access to the agency.

Bottom Line

Ralphs Grocery Company provides welcome clarity for employers seeking to maintain enforceable arbitration programs. The NLRB confirmed that confidentiality provisions covering the content and outcome of arbitration generally remain lawful under the FAA. At the same time, employers should avoid provisions prohibiting employees from disclosing the existence of an arbitration proceeding, as the Board views such restrictions as infringing on employees’ NLRA rights. The decision also underscores the value of including an unequivocal and conspicuous savings clause that expressly preserves employees’ right to file charges with the NLRB. Lastly, since the Board views Stericycle as applicable to all workplace rules and policies, employers should continue evaluating handbook and arbitration provisions from the perspective of whether employees could reasonably view them as restricting their Section 7 rights.

Please feel free to contact a member of the BakerHostetler’s Labor Relations team if you have any questions.

During negotiations for a successor collective bargaining agreement, the union’s chief steward filed numerous grievances that the employer viewed as meritless. To combat this activity, early in negotiations, the employer proposed language that would have permitted it to discipline, and potentially terminate, employees for filing “baseless, malicious, or harassing grievances.” Failing to appreciate the necessity to eliminate (in the employer counsel’s words) myriad “bulls*** grievances,” the union filed an unfair labor practice charge alleging that the mere proposal of this language independently violated Section 8(a)(1) of the Act, which prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed” in the Act.

The ALJ agreed with the union, finding that the proposal violated Section 8(a)(1) because it would interfere with employees’ rights by reasonably tending to discourage employees from filing grievances. The Board, rejecting the former Biden-era general counsel’s invitation to expand Board law, reversed the ALJ, stressing that the Act is intended to favor “uninhibited, robust, and wide-open debate” during contract negotiations and noting that neither the parties to the case nor the ALJ identified any precedent establishing that merely presenting a bargaining proposal can constitute an unlawful threat to interfere with protected concerted activity. Not surprisingly, Board member David Prouty (the lone Democrat) dissented, agreeing with the ALJ that the proposal and the employer’s statement during bargaining that it was necessary to reduce frivolous grievances objectively tended to discourage employees from engaging in protected concerted activity by filing grievances.

Key Takeaways for Employers

1. The Board’s majority declined to extend Section 8(a)(1) liability to the mere presentation of a bargaining proposal, even where the proposal would authorize discipline for grievance-related conduct.
2. The Board continues to give parties significant leeway to make aggressive and contentious proposals, even where those proposals involve restrictions on protected concerted activity.

BakerHostetler’s Labor Relations team continues to monitor developments in this area. Feel free to contact a member of the team if you have any questions.

Background

As The Bargaining Table reported here, the Board has been in flux since President Donald J. Trump returned to office. Although the Trump administration restored a 2-1 Republican majority and installed a seemingly management-friendly general counsel, the Board has honored custom by refraining from overturning controversial Biden-era precedent in the absence of a three-member Republican majority.

The game has changed – let’s go! On Friday, Aug. 7, the U.S. Senate confirmed Trump nominee James Macy to the Board for a five-year term, creating a long-awaited 3–1 Republican majority. The current Board now consists of Chair James Murphy (Republican), Scott Mayer (Republican), James Macy (Republican), and David Prouty (Democrat). Gwen Wilcox, who was a Democratic member, is unlikely to succeed with a legal challenge to her 2025 removal by Trump, based on the Supreme Court’s recent decision in Trump v. Slaughter, No. 25-332 (U.S. Jun. 29, 2026). As a result, one seat on the five-member Board remains vacant and is unlikely to be filled in the near term.

What to Expect

Employers should expect meaningful change now that the Trump administration has solidified control of the Board and secured the third vote needed to return to more traditional interpretations of labor law.

Although the Board has publicly stated that it intends to focus on clearing the significant backlog of cases pending in regional offices—and although it will take time for the Board to identify appropriate cases and overturn prior precedent—the new majority is likely to revisit several controversial Biden-era decisions. Potential targets include expanded remedies under Thryv, Inc., heightened scrutiny of handbook and workplace rules under Stericycle, Inc., and restrictions on commonplace confidentiality and non-disparagement provisions in settlement agreements under McLaren Macomb, among others.

Employers should closely monitor upcoming Board decisions and assess their risk tolerance before taking novel approaches. While Board precedent may shift quickly, core “black letter” decisions will remain intact, and public, employee, union, and business-relations considerations should continue to inform any labor-relations strategy.

The BakerHostetler Labor Relations team will continue to monitor the Board and its evolving impact on employers. In the meantime: Let’s go!

When the Supreme Court stays silent, circuit splits grow louder. On June 15, the Supreme Court denied certiorari in Macy’s Inc. v. NLRB, leaving in place a Ninth Circuit decision endorsing the National Labor Relations Board’s (NLRB or Board) expanded “make-whole” framework established in its 2022 Thryv, Inc. decision. That denial, issued without explanation as is customary, leaves unresolved a growing circuit split over the scope of the Board’s remedial authority.

In Thryv, Inc., the NLRB held that employers must compensate employees for all “direct or foreseeable pecuniary harms” resulting from an unfair labor practice. This expansion introduced significant uncertainty regarding how far an employer’s liability extends beyond the underlying violation. Since the Board’s decision, several circuits have considered whether the holding complied with the National Labor Relations Act (NLRA or Act). The first court to consider the issue was the Fifth Circuit, which, while considering Thryv’s petition for review of the Board’s decision, declined to directly address the merits of the Board’s make-whole relief. The court nevertheless characterized such an approach as a “novel, consequential-damages-like labor law remedy” and “draconian.” In December 2024, however, the Third Circuit in NLRB v. Starbucks Corp. squarely rejected the Board’s Thryv remedies on statutory grounds, holding that Section 10(c) of the NLRA limits the Board’s remedial authority to equitable relief, so that it doesn’t extend to legal damages. While the Board may award monetary relief tied to what the employer unlawfully withheld, such as back pay, the Third Circuit held that damages designed to compensate employees more broadly are beyond the Board’s statutory authority. The Fifth Circuit ultimately agreed with this view in Hiran v. NLRB, followed by the Sixth Circuit in a case also named NLRB v. Starbucks Corp. Meanwhile, the Ninth Circuit reached the opposite conclusion.

In Macy’s Inc., the Ninth Circuit upheld a Thryv-based NLRB order. In doing so, the court required Macy’s to compensate striking employees for all “direct or foreseeable pecuniary harms” resulting from its unlawful lockout following the employees’ offer to return to work.

The “make-whole” framework of Thryv now presents a clear circuit split, which the Supreme Court has, for now, declined to resolve. That said, the NLRB may revisit Thryv in light of the Board’s change from a Democratic to a Republican majority. Indeed, in its opposition to Macy’s petition, the NLRB urged the Supreme Court to vacate the Ninth Circuit’s decision and remand the case to the Board, signaling that the agency anticipates further consideration of the issue. That possibility is reinforced by a shift in enforcement at the general counsel level. Former Acting General Counsel William B. Cowen reversed prior guidance that encouraged the routine pursuit of expansive remedies, instructing instead that such remedies should be reserved for conduct that is “widespread, egregious, or severe.” Current General Counsel Crystal S. Carey, in Memorandum GC 26-03, confirmed that Cowen’s guidance remains in effect, indicating continued restraint in the pursuit of remedies.

Bottom line

The growing circuit split over Thryv leaves the scope of the NLRB’s remedial authority unsettled, with meaningful consequences for both employers and employees. Absent Supreme Court intervention, the Board’s shifting policy direction and current composition suggest the next chapter in Thryv might be written by the NLRB itself.

In a June 1 decision, the National Labor Relations Board (NLRB or the Board) reaffirmed that bargaining notes generally are exempt from disclosure under the National Labor Relations Act (NLRA) Stericycle Inc., 374 NLRB No. 121 (2026) (Stericycle II). For employers engaged in collective bargaining, the decision preserves an important protection for negotiation-related materials and confirms that a union ordinarily may not compel production of an employer’s bargaining notes through an information request.

The dispute in Stericycle II arose from the parties’ disagreement over attendance-related discipline. During the course of that dispute, the union submitted multiple information requests seeking documents in the employer’s possession. Stericycle objected to one request seeking bargaining notes “concerning or relating to discussions of administration of attendance discipline during negotiations,” maintaining that such notes were not subject to disclosure. Applying the Board’s earlier decision in Stericycle, Inc., 370 NLRB No. 89 (2021) (Stericycle I), the administrative law judge held that the requested bargaining notes were exempt from production.

The union sought reconsideration, urging the Board to revisit that holding. The Board majority – more specifically, recent President Trump appointees James Murphy and Scott Mayer – declined to do so, leaving the exemption intact. Member David Prouty – first appointed by President Joseph Biden – dissented and would have overruled Stericycle I, concluding that the refusal to produce the notes constituted an unfair labor practice. The majority’s decision, however, confirms that the Board continues to treat bargaining notes as a protected category of material not ordinarily subject to disclosure obligations under the NLRA.

Key Takeaway: Employers that bargain with unions should view Stericycle II as reaffirming that bargaining notes generally remain outside the scope of a union’s information request rights. That protection, however, does not eliminate the need for care. Notes should be prepared with the expectation that they may later become the subject of dispute, and employers should exercise discipline before recording strategy, impressions, or other sensitive commentary in bargaining materials.

The ruling also underscores that this protection is reciprocal: Employers likewise should not expect unions to be required to produce their own bargaining notes.

When faced with union information requests – particularly those seeking negotiation-related materials – employers should evaluate their obligations carefully and consider seeking counsel before responding.

BakerHostetler’s Labor and Employment Practice Group is available to assist employers with NLRA compliance, bargaining strategy issues, information request disputes, and the Board’s evolving labor law landscape.

Inherently Concerted Activity Under the NLRA

Section 7 of the National Labor Relations Act (NLRA or the Act) protects employees’ right to engage in “concerted activity” for the purpose of improving working conditions for a group of employees. These rights apply equally in union and nonunion workplaces. Wage discussions, benefits, hours and safety issues have long been treated as core protected categories.

Biden-era Board decisions further expanded the scope of protected conduct. In Miller Plastic Products, the Board stated even solo protests may qualify as protected if they can reasonably be viewed as an attempt to spur group action. In Lion Elastomers II, the Board held that even profane or offensive remarks may remain protected if made during the course of Section 7 activity. Under this approach, conduct is evaluated in the context of the protected activity itself, not as an isolated workplace incident.

Motorola and Inherently Concerted Activity

The Motorola Solutions Inc.case highlights an important concept adopted by the NLRB: the “inherently concerted activity.” Under this doctrine, certain subjects – especially wages – are treated as concerted by their very nature. An employee need not act with co-workers, attempt to spark group action or participate in a broader workplace dispute for Section 7 protections to apply. The topic alone can trigger NLRA coverage.

In this case, Motorola employee Elisa Sheley stated to her co-workers that she thought a certain co-worker, Robert Rivera, was overpaid. After Rivera complained to management, the company questioned Sheley about the wage discussions. Sheley denied having talked about Rivera’s pay, an answer that was a lie. Motorola terminated her for dishonesty under a neutral workplace policy governing internal investigations. However, the NLRB administrative law judge concluded that because the underlying conversations involved wages, an inherently concerted topic, Sheley’s denial remained closely connected to protected activity. As a result, the judge found that Motorola could not lawfully rely on the dishonesty policy to justify her termination.

The case is now on appeal before the Board. While the newly constituted Board may approach some issues more favorably for employers, wage‑related conversations continue to receive some of the strongest protections under the NLRA, especially when analyzed through the lens of inherently concerted activity.

A More Employer-Friendly Enforcement Approach? The New GC’s Guidance

As to how the Board will address allegations such as those raised in Motorola, the newly appointed NLRB general counsel (GC), Crysal Carey, has issued guidance that signals a shift away from the more aggressive enforcement posture of prior years.

• The GC discourages the routine use of enhanced remedies such as notice readings, apology letters and nationwide postings.
• Investigators are directed to require charging parties to present evidence within two weeks of filing a charge.
• Regional offices should request information from employers only when the charging party’s evidence suggests a potential violation.
• The memo limits the practice of requesting entire employee handbooks when only a single rule is at issue.
• The use of Section 10(j) injunctions – extraordinary remedies – is restricted to truly exceptional cases.

What Does This Mean for Employers?

Until the Board resolves the issues raised in Motorola, employers should remain cautious when navigating discipline connected to discussions of wages or workplace conditions.

• The NLRA continues to protect a broad range of employee conduct, particularly comments related to wages and health and safety.
• These protections apply equally in nonunion and union workplaces, meaning nonunion employers face the same risks under the Act.
• The Board considers its existing decisions binding on employers until expressly overturned, even under a more employer‑friendly Board.
• Because topics like wages and safety are considered inherently concerted, employers must exercise heightened caution when considering discipline, even for dishonesty or inappropriate conduct, if the behavior is tied to those subjects.
• Employers should carefully review workplace investigation protocols, handbooks and disciplinary policies to ensure enforcement does not inadvertently interfere with Section 7 rights.
• On the positive side, if someone files a charge against an employer, the Board’s handling of the charge may be less adversarial than it has been previously.

For employers navigating these complexities, seeking guidance is strongly advisable. BakerHostetler’s Labor and Employment Practice Group is available to assist with NLRA compliance, internal investigation strategies and understanding the evolving direction of the Board.

The National Labor Relations Board (NLRB) last week created its own record shot, formally readopting its 2020 joint employer rule and sunsetting the never-implemented Biden administration rule from 2023.

The NLRB skipped the normal rulemaking process, which typically requires a proper review and comment period, jumping directly to the final rule. It was able to avoid these steps because the final rule isn’t actually changing anything. The 2020 rule applied before the Biden administration tried to change the rule in 2023, but a federal court rejected the 2023 rule, which the Biden administration then withdrew. The result of that withdrawal was that the 2020 rule was still in effect. Last week’s action by the NLRB formalizes that outcome by officially readopting the 2020 joint employer rule.

What’s the rule?

Under the 2020/2026 rule, for joint employment to exist under the National Labor Relations Act (NLRA), the putative joint employer “must possess and exercise … substantial direct and immediate control over one or more essential terms or conditions” of the workers’ employment.

“Essential terms and conditions” means wages, benefits, hours of work, hiring, discharge, discipline, supervision and direction.

Substantial direct and immediate control requires that the putative joint employer directly makes the decisions. Merely exerting influence is not enough.

For example, with respect to wages, direct and immediate control means setting the wages. Entering a cost-plus contract is not enough to support joint employment.

With respect to hours of work, direct and immediate control means setting the schedule for particular employees. Merely establishing a facility’s operating hours or deciding when additional staffing is needed is not enough to support joint employment.

Regarding discharge, direct and immediate control means actually firing the worker from employment. Telling a staffing agency to remove a worker from an assignment is not enough to create joint employment.

Regarding direction, direct and immediate control means “assigning particular employees their individual work schedules, positions, and tasks.” Setting schedules for the completion of a project or describing the work to be completed is not enough.

“Substantial direct and immediate control” means control that “has a regular or continuous consequential effect on an essential term or condition.” Sporadic, isolated or de minimis control is not enough to create joint employment.

Avoiding joint employer status can be critically important in labor relations because a joint employer is obligated to bargain with the primary employer’s employees. The 2020/2026 rule provides better clarity and guidance for companies that wish to avoid joint employer status under the NLRA.

This rule applies only to the NLRA. Different tests for joint employment apply under the Fair Labor Standards Act and other federal and state employment laws.

The rule can be found at 29 CFR 103.40. Will the sun rise again on a new rule that makes joint employment more likely? Not under this administration. But the joint employer standard tends to change with each new administration, so what happens in three years or seven years is anyone’s guess.

Please contact the author of this blog or your BakerHostetler attorney contact if you have any questions.

Background

In January 2025, Trump removed NLRB member Gwynne Wilcox, leaving only two members, Democrat David M. Prouty and Republican Marvin E. Kaplan, whom Trump named chairman. Kaplan’s term came to an end in August 2025 and Wilcox is still challenging her removal in court. With only one member, the five-member Board lacked both a quorum and authority to issue decisions in unfair labor practice (ULP) cases and disputes over union election petitions. The absence of a quorum left the NLRB unable to change Biden-era, employee-friendly precedent, but it also delayed rulings on pending cases that could have been unfavorable to employers.

New Board Members

Now the Board sits at a 2-1 Republican advantage, with the appointment of new members Scott Mayer and James Murphy. Mayer, a Philadelphia-based attorney who served as chief labor counsel for Boeing. stands as the outsider appointee, a Philadelphia-based lawyer who served as chief labor counsel for Boeing, stands as the insider appointee, having had a long career at the NLRB serving as chief counsel to various Republican Board members, including, most recently, Kaplan. Murphy’s confirmation was smooth, but Mayer faced delays due to a labor dispute at his employer and pushback from Sen. Josh Hawley. Ultimately, both were confirmed and have begun their terms.

New GC

Trump also reshaped the Board’s prosecutorial arm. On Jan. 27, 2025, Trump fired the chief prosecutor of the Board under President Joe Biden, Jennifer Abruzzo, and Abruzzo’s short-lived replacement, Jessica Rutter. Abruzzo had issued aggressive, union-friendly memos, though many lacked binding effect without NLRB rulings. In place of Abruzzo and Rutter, Trump appointed William Cowen as acting GC. Cowen quickly rescinded Abruzzo’s directives, including restrictions on severance and noncompete agreements. While Abruzzo could not always find the right case to alter labor law precedent, she was able to change some areas that remain in effect today. Now, Crystal Carey, a former partner at a large nationwide management-side firm, is poised to take the reins as the permanent GC and expected to seek reversal of those changes.

Board Member Wilcox’s Firing

The removal of Abruzzo was anticipated, but Board member Wilcox’s dismissal came as a surprise. Unlike GCs who serve at the president’s discretion, Board members historically could be removed only “for cause,” pursuant to Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935). Now, that precedent is being reexamined in connection with the litigation over Wilcox’s removal. While a D.C. district court initially reinstated Wilcox, a U.S. Court of Appeals for the D.C. Circuit panel reversed and upheld her firing in the consolidated case Harris v. Bessent, No. 25-5037, 2025 WL 3496737 (D.C. Cir. Dec. 5, 2025). The panel stated that because the NLRB members wielded “substantial executive powers,” the president could not be restricted from firing them.

This ruling follows Supreme Court precedent in Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 218 (2020), which stated that Congress could not limit a president’s ability to terminate agency officers who wield substantial executive powers. Essentially, if an agency’s powers include important executive functions, such as substantial rulemaking or adjudicatory powers, the president can remove that agency’s officers.

This development coincides with a Supreme Court challenge to the for-cause removal standard in Humphrey’s Executor now under review in Trump v. Slaughter, 222 L. Ed. 2d 1233 (Sept. 22, 2025). In Slaughter, Trump is seeking to uphold his termination of Commissioner Rebecca Slaughter from the Federal Trade Commission, the agency about which Humphrey’s Executor was initially decided. If Trump is successful, he could remove a government officer without cause regardless of whether the agency wields substantial executive powers.

Implications for Biden-Era Precedent

Now empowered with a quorum and new GC, the Board can start getting back to business. Carey can start by challenging Biden-era precedent such as (1) overturning the Cemex election procedure, (2) removing the ban on captive audience meetings, and (3) reinstating an employer’s ability to make predictions during an election campaign.

Election Procedures

In Cemex Construction Materials Pacific, LLC, 372 N.L.R.B. No. 130 (2023), the Board held that instead of a regular secret ballot election, a union can request voluntary recognition if it shows a majority of employees have signed union authorization cards. If the employer refuses, it must request a secret ballot election within two weeks. If the employer fails to do so, the NLRB can issue a bargaining order against the employer, forcing recognition of the union. In addition, if an employer is accused of committing even a single technical ULP during an election campaign, the NLRB can issue a bargaining order.

Captive Audience Meetings

he Cemex decision is made even more burdensome on employers, as the NLRB has recently banned captive audience meetings in its decision in Amazon.com Services LLC., 373 N.L.R.B. No. 136 (2024). Mandatory meetings have long been a useful tool by employers in union elections. By banning these meetings, employers could be subject to a bargaining order for having one mandatory meeting to discuss unionization.

Employer Predictions

During election campaigns, employers used to discuss what might happen if employees were unionized, such as losing the ability to address issues on an individual level. In Siren Retail Corp. d/b/a Starbucks, 373 N.L.R.B. No. 135 (2024), the NLRB banned this type of language, stating any predictions must have some “objective fact” behind them. Otherwise, the Board will be consider this a ULP during an election, which can result in a bargaining order. Previously, the Board would not police such campaign statements because the relationship between employer and employee would necessarily change once employees chose union representation.

These decisions will likely be overruled by the new Trump NLRB. However, Carey will have to bring a complaint accusing a company or union of violating the law to get a Board ruling. Whether an employer wants to test the new Board’s appetite for change will depend on its resources, risk aversion and vulnerability to public backlash.

What Should Employers Do with This New Board?

While changes will not happen overnight, the new Board members and GC signal a clear return to traditional interpretations of labor law. Employers should closely monitor upcoming decisions and assess their risk tolerance before testing the new NLRB’s approach, as legal challenges and public scrutiny remain key considerations in this evolving landscape. The BakerHostetler Labor Relations team will continue to closely monitor the new Board and its changing effects on employers.

Background

When President Donald Trump fired Board member Gwyne Wilcox, the NLRB was left in a precarious position without a quorum. With only two of its five members appointed, the Board could not issue decisions regarding union representation petitions or unfair labor practice (ULP) charges. Wilcox has challenged her removal, arguing it violated the Board’s “for cause” protections, but the Supreme Court has upheld the dismissal for now in Trump v. Wilcox, 145 S. Ct. 1415 (2025). The lack of a quorum became more pronounced when former Chairman Marvin Kaplan stepped aside at the conclusion of his term on Aug. 27, leaving David Prouty as the sole member. While Trump has nominated two new members – James Murphy and Scott Mayer – to the Board, which would restore the quorum, they have yet to be confirmed.

 In the meantime, New York moved forward with its NLRB Trigger Bill. The bill empowers New York’s Public Employment Relations Board (PERB) to assume the NLRB’s jurisdiction, including authority over representation and ULP cases, and even imposes timelines for contract negotiations with potential mediator-imposed agreements.

On Sept. 15, the Amazon Labor Union No. 1 International Brotherhood of Teamsters (ALU) took advantage of this bill by filing a ULP charge against Amazon with the PERB instead of the NLRB. Traditionally, the ALU’s workers would fall under the exclusive jurisdiction of the Board. Following receipt of the charge, Amazon filed suit in the U.S. District Court for the Eastern District of New York, arguing the National Labor Relations Act (NLRA) preempted any state’s attempt to regulate this arena. See Amazon.com Services LLC v. N.Y. St. Pub. Emp. Rel. Bd., Case No. 1:25-cv-5311 (EK) (MMH)(E.D.N.Y. Sept. 22, 2025). Amazon filed the lawsuit several days after the NLRB filed a lawsuit in the Northern District of New York seeking to enjoin PERB. National Labor Relations Board v. State of New York et al., Case No. 1:25-cv-01283-GTS-ML (N.D.N.Y Sept. 12, 2025).

Why Did the Court Rule in Favor of Amazon?

On Nov. 26, the court granted a preliminary injunction blocking enforcement of the NLRB Trigger Law. As predicted, the law had some major preemption issues. The court relied heavily on San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), which holds that if an activity is even “arguably” subject to the NLRA, both state and federal courts must defer to the NLRB’s exclusive jurisdiction.

The ALU argued that the “unique circumstances” of the Board lacking a quorum and the threat to the Board members for cause removal protection for Wilcox justify the NLRB Trigger Law. The district court pushed back, stating that “unique circumstances” cannot justify a law in clear contradiction of Supreme Court precedent. The court held that even if the NLRB declines to assert its jurisdiction over an activity, under Garmon, state and local laws still are preempted with respect to that activity. Similarly, the court found that pending challenges to the removal protections for Board members had not created a “unique circumstances” objection because the Supreme Court has not given a final ruling on those protections. Given Amazon’s likelihood of success on the merits and the irreparable harm it would suffer from PERB enforcement, the court granted the injunction.

What Should Employers Do?

While the injunction is a promising start for employers, they should continue to monitor any attempts to supplant the Board. There have been various states, including California, New Jersey and Massachusetts, that have either proposed or enacted similar legislation. The BakerHostetler Labor Relations team will continue to closely monitor these developments and their impacts on employers.

Labor practitioners may recall these facts from Home Depot USA, Inc., 272 NLRB No. 25 (2024), where the National Labor Relations Board (NLRB or the Board) held that employees’ display of BLM markings on their aprons was protected concerted activity because it was a “logical outgrowth” of their other protected concerted activities related to their employer’s allegedly deficient response to racially discriminatory conduct. The Board did not find the employer’s policy prohibiting political messaging facially unlawful but rather unlawful as applied to the employees advocating for workplace rights related to race.

The Board rejected the employer’s argument that it had “special circumstances” to ban the purported protected concerted activity – citing (1) risk to its public image, (2) safety concerns and (3) concerns regarding employee dissension – finding instead that the total ban was not “narrowly tailored” to address the employer’s concerns and that the employees’ right to display the markings outweighed the employer’s interests. The Board also rejected the employer’s argument that requiring it to allow political messages on its signature orange aprons was compelled speech in violation of the First Amendment, reasoning that “accommodating the employee’s message does not affect the [employer’s] speech, because the [employer] is not speaking when employees personalize their aprons.”

Home Depot petitioned the Eighth Circuit Court of Appeals to review the Board’s decision, and on Nov. 6 the court decided that the company did not violate the law by refusing to let Morales wear the BLM marking at work. Home Depot U.S.A., Inc. v. NLRB, No. 24-1406 (8th Cir. Nov. 6, 2025). The court held that the Board misevaluated Home Depot’s “special circumstances” defense, which allows employers to ban otherwise protected messages when they conflict with legitimate business interests. It considered the defense “in the context of this dispute at this location at this point in time” – near the site of George Floyd’s murder and the unrest that erupted in its wake – reasoning that Home Depot’s public image and safety concerns outweighed the employees’ right to wear the markings.

The court dodged the more controversial First Amendment issue, but this decision may leave employers questioning how the context of future employee political speech will impact their ability to ban it. How far from the site of a politically significant event is far enough for employees’ interest in speaking about it to outweigh potential safety or employer reputational risks? In the age of the Internet and near-instant dissemination of images and information around the globe, would the same BLM display in Los Angeles really have been less risky than in Minneapolis? Moreover, is this highly subjective standard consistent with the National Labor Relations Act’s preemption of state laws to create a consistent labor framework nationwide? In light of the fast-evolving landscape, employers should consult counsel when drafting and enforcing dress code policies that might limit employee speech.