Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer refused to bargain in good faith with union and refused to provide union with requested information, (Aug 13, 2026)

By Ronald Miller, J.D.

It is well-settled that the ability to make recommendations based upon technical or professional expertise is insufficient to establish the requisite discretion for a finding of managerial status.

An employer violated Sections 8(a)(1) and (5) of the NLRA by failing and refusing to bargain collectively and in good faith with a union, and by failing and refusing to provide the union with information which was relevant and necessary for the union to fulfill its responsibilities as the exclusive collective-bargaining representative of bargaining unit employees, ruled a three-member panel of the NLRB. Further, the employer also violated Section 8(a)(1) by threatening employees, both orally and in writing, with discipline if they engaged in activity on behalf of the union, including interacting with the union and/or discussing the union with other employees (Covenant House New York, 375 N.L.R.B. No. 21 (Aug. 5, 2026)).

Union election. Covenant House provides housing, medical care, educational and work force development, and social services at multiple facilities located in Manhattan and the Bronx. On May 26, 2022, the union filed a petition for a representation election, seeking certification as the exclusive collective-bargaining representative of a bargaining unit of employees employed by Covenant House. On June 15, 2022, an acting regional director approved a Stipulated Election Agreement executed by the union and Covenant House.

Bargaining. The first bargaining session between Covenant House and the union took place on May 16, 2023. On May 17, 2023, Covenant House’s executive director sent an email to staff announcing that bargaining with the union had begun. Included in a list of bargaining unit positions attached to the email were the positions of “Director of Development & Communications” and “Program Compliance Coordinator.”

Prior to the bargaining session, the attorney for Covenant House sent a letter to the union contending that six job titles included in the bargaining unit were statutory supervisors. The attorney also asserted that one position included in the bargaining unit was represented by another union.

Information request. On November 15, 2023, the union sent an email to Covenant House with an attached letter requesting certain information. The union asked that the information be provided no later than November 22, 2023. On November 30, 2023, the attorney for Covenant House emailed the union and its attorneys with an initial response to the information request, attaching an Acknowledgement Form regarding secondary or outside employment. A November 30 email also attached a spreadsheet containing information regarding per diem employees, active bargaining unit members, separated bargaining unit members, and promotions of bargaining unit employees.

On December 20, 2023, a union attorney emailed the employer’s attorney regarding the requested information pertaining to secondary employment policies, disciplinary actions, and wage increases, which remained outstanding. The union never received the requested information.

The complaint alleged that Covenant House failed and refused to bargain collectively and in good faith with the union, and refused to provide the union with information relevant and necessary for the union to fulfill its responsibilities as the exclusive collective bargaining representative of the bargaining unit employees, in violation of Sections 8(a)(1) and (5). The complaint further alleged that Covenant House violated Section 8(a)(1) by threatening employees with discipline if they engaged in union activity, including interacting with the union and/or discussing the union with other employees.

Supervisory status. Covenant House’s defense to these allegations was premised upon the purported managerial status of the Director of Communications and Development and the Program Compliance Coordinator and their participation on the union’s negotiating committee.

Covenant House declined to address probative evidence contained in the record regarding the employees’ job duties, responsibilities, and authority as Director of Development and Communications and Program Compliance Coordinator, respectively. Instead, the employer argued that its “admission” that the employees were managers pursuant to Board caselaw “removed” the issue of their status “from the instant case.” It also alleged that it was denied its due process by the region’s interviewing the two employees as part of its investigation of the unfair labor practice charge, without obtaining the consent of the employer’s counsel. The Board found both of the employer’s arguments meritless.

Moreover, an administrative law judge found that the evidence established that the employees were not managerial employees at the times material to the complaint’s allegations. Managerial employees are employees who “formulate and effectuate management policies by expressing and making operative the decisions of their employer.”

The record established that the employees were not supervisors within the meaning of Section 2(11) of the Act. Further, the record established that the employees were not confidential employees within the meaning of the Act.

Director of Development and Communications. With regard to the position of Director of Development and Communications, there was no evidence that the employee exercised discretion in the performance of his duties independent of existing Covenant House policy. His primary duties and responsibilities involved locating and analyzing new funding opportunities for review and preparing applications for grants after review and approval by a team. The employee’s uncontradicted testimony established that once he discovers a new grant opportunity as part of his job duties, he has no authority to apply for the particular grant without the review and approval of the team. Thus, the record established that he was not a supervisor within the meaning of Section 2(11) of the Act.

Program Compliance Coordinator. The record established that the Program Compliance Coordinator was not a managerial employee at any time material to the complaint’s allegations. Instead, the evidence demonstrated that whatever discretion the employee exercised in connection with her job duties and responsibilities occurred within policies and limitations established by Covenant House’s executive team.

The employee’s uncontroverted testimony established that her primary job functions entailed conducting internal reviews of Covenant House programs to ensure compliance with standards formulated by New York City and State regulatory bodies, and subsequently acting as a liaison between the City and State agencies involved and Covenant House staff after the agencies completed their own audits. Evidence did not establish that the employee exercised discretion in the formulation, control or implementation of Covenant House policy. Thus, the evidence did not establish that the employee was a managerial employee, a supervisor pursuant to Section 2(11).

Refusal to bargain. According to the complaint, since November 15, 2023, Covenant House has failed and refused to bargain in good faith by the following conduct: (1) cancelling bargaining sessions; (2) refusing to make bargaining proposals; (3) refusing to meet since February 13, 2024; (4) refusing to bargain unless the union removed certain members of its bargaining committee; and (5) refusing to provide information necessary for the union’s performance of its duties as exclusive collective bargaining representative.

The evidence here established a pattern of cancellations and refusals to meet on behalf of Covenant House indicative of an overall refusal to negotiate in good faith with the union. The evidence further demonstrated that Covenant House failed to make bargaining proposals and counterproposals, in a manner contrary to good faith negotiations. The evidence also established that Covenant House unlawfully conditioned bargaining on the union’s selection of bargaining representatives and refused to meet and bargain unless the union removed certain members of its bargaining committee.

Refusal to provide information. In addition, the complaint alleged that Covenant House violated Sections 8(a)(1) and (5) by failing and refusing to provide information requested by the union in 2023 and 2024. The information at issue here pertained directly to the bargaining unit employees’ terms and conditions of employment and was therefore presumptively relevant. The information requested involved Covenant House’s communications with the bargaining unit employees regarding the required disclosure of secondary and/or outside employment, a list of employees who had been requested or required to disclose secondary and/or outside employment, and any actions taken by Covenant House in response to a bargaining unit employee’s disclosure of secondary and/or outside employment, or their refusal to do so.

The evidence established that Covenant House never provided this information to the union. Thus, the evidence demonstrated that Covenant House violated Sections 8(a)(1) and (5) by failing and refusing to provide the requested information to the union.

The slip opinion is 375 NLRB No. 21.

Attorneys: Jacob Frisch for General Counsel. Don Carmody (Carmody & Kaseta) for Covenant House New York. Jessica Apter (Levy Ratner) for 1199SEIU UnitedHealthcare Workers East.

Companies: Covenant House New York; 1199SEIU UnitedHealthcare Workers East

Cases: Labor OrganizingElections UnfairLaborPractices Bargaining AgencyNews