Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer unlawfully interrogated employee about union activities but discharge lawful, (Aug 28, 2026)

By Ronald Miller, J.D.

The employee suggested the business agent of a rival union visit a jobsite, during which time employees were asked to sign a petition card.

A three-member panel of the NLRB affirmed the judgment of an administrative law judge that an employer violated Section 8(a)(1) of the NLRA by unlawfully interrogating an employee because he engaged in union and protected concerted activities. The ALJ found that the nature of the information sought by a supervisor implied that the employee was violating company policy by speaking to a representative from a rival union, and questions about whether the employee had taken steps to withdraw from the rival union sent a message that he should sever his ties with the rival. On the other hand, the Board agreed with the ALJ that the employer did not violate Section 8(a)(3) and (1) by terminating the employee’s employment while he was still in his 120–day probationary period. Ongoing conflict between the employee and a field supervisor about job assignments stood as a legitimate, nondiscriminatory reason for the employee’s discharge (Altofer Inc., 375 N.L.R.B. No. 32 (Aug. 27, 2028)).

Field service technicians. The employer is engaged in the business of selling, renting, servicing, and repairing construction equipment. For some customers, repairs occur in the employer’s shop, with the repair work completed by a shop technician. For other customers, the employer dispatches field service technicians to do repairs at a construction site or other location designated by the customer. During the relevant time period, the employer employed about 15 field service technicians, each of whom was assigned a service truck with tools and other equipment to use to perform repairs.

For several years, Operating Engineers Locals 399 and 841 were the exclusive collective-bargaining representatives of employees in the bargaining unit.

In May 2023, the employee learned from a union representative of Operating Engineers Local 150 that the employer was hiring field service technicians. The employee, who had been working as a shop technician for another employer, applied for and was hired as a field service technician by the employer.

As part of his training, the employee spent one month working with the resident field service technician and Local 399’s field service steward to assist with service calls and learn the employer’s policies and procedures. As a new employee, he was subject to a probationary period of 120 calendar days.

Local 150 membership. Under the CBA for Local 399, the employee had 70 days to apply for membership in the union. However, he had concerns about maintaining benefits that he accrued with Local 150 and so communicated with a Local 150 business agent about how he might transfer his union membership to Local 399 while maintaining and/or using his Local 150 accrued benefits and perhaps avoiding some or all of the cost of a transfer fee. He also spoke with the Local 399 steward about some of these issues.

Because the employee’s questions remained unresolved, he did not become a member of Local 399 and maintained his Local 150 membership throughout his employment with the employer. Local 399 never raised a concern about the employee’s failure to become a member.

Job assignments. In mid-July 2023, the employer assigned the employee to a service truck and began dispatching him to job sites on his own. Also in mid-July, the employer reassigned a shop supervisor to the position of field service supervisor, and he became began assigning work to and supervising the employee.

By late July, friction developed between the employee and the field service supervisor. The supervisor believed that the employee was resistant to assignments that were farther away from his home and that he did things his own way instead of adopting company procedures, unless given a specific instruction from management. For his part, the employee felt that the supervisor did not communicate well about assignments.

Local 150 business agent visit. In August, a Local 150 business agent called the employee to see if it might be possible for him to meet other field technicians who were working for the employer. The employee suggested that the business agent visit a jobsite where he was working.

During the visit, the business agent asked the field service supervisor about the jurisdiction lines between Locals 150 and 399 and asked if any of the employer’s field technicians were working in Local 150’s area. He also asked employees to sign a petition card for Local 150.

The supervisor reported the incident and mentioned that a Local 150 representative approached him on a job site and asked about membership.

As of late August 2023, the employee and field service supervisor continued to be in conflict about job assignments. Beyond assignments, the employee also expressed frustration about the condition of his service truck, particularly whether the truck was fully equipped.

After receiving input from supervisors and consultation with HR and Local 399’s business agent, the determination was made to end the employee’s employment.

Interrogation. On February 19, 2025, the General Counsel issued a complaint alleging that the employer violated Section 8(a)(1) of the Act by interrogating employees about their union membership, activities, and sympathies, and the union membership, activities, and sympathies of other employees.

In an October 4 meeting that began with a discussion about communication issues, a supervisor asked the employee if he had been in contact with any other employees or unions on company time at a job site because such activity would be against company policy. The employee acknowledged that he had met with a representative for Local 150 while he was on a break. The supervisor next inquired as to why the employee was speaking to another union and asked if he had taken steps to withdraw from Local 150.

An administrative law judge found that the nature of the information sought by a supervisor was problematic. The supervisor implied that the employee was violating company policy by speaking to a Local 150 representative at a job site and also implied that the employee was acting improperly by speaking to a union other than Local 399. Additionally, questions about whether the employee had taken steps to withdraw from Local 150 sent a message that he should sever his ties with Local 150. The ALJ also found the identity of the interrogators was coercive. The employee was interrogated by his director supervisor in the presence of the store manager, the senior official at the facility.

Considering the totality of the circumstances, the ALJ found that the questioning of the employee was unlawfully coercive. Thus, the ALJ found that the employer violated Section 8(a)(1) by unlawfully interrogating the employee about his union and protected concerted activities and the union and protected concerted activities of other employees.

Termination. The General Counsel also alleged that the employer violated Section8(a)(3) and (1) by terminating the employee because he formed, joined, and assisted Local 150 and engaged in protected concerted activities, and by discouraging employees from engaging in those activities.

On October 9, the employee was asked to come to the office. In a meeting that took place, the employee was advised that the employer had decided to terminate his employment while he was still in his 120–day probationary period because the employer did not think that he would work out as a long-term employee.

There was no dispute that the employee was a member of and active with Local150, a union that was a potential rival of Local 399 for representing the technicians and certain other employees working for the employer. The employer was aware of the employee’s activities and there was evidence of the employer’s animus towards the employee’s activities with Local 150.

As its affirmative defense, the employer maintained that it would have terminated the employee before the end of his probationary period even in the absence of his union and protected concerted activities.

The ALJ found merit in the employer’s defense. Throughout his time working for the employer, the employee had friction with his field supervisor about job assignments that were farther away from the employee’s home. As a result, this ongoing conflict between the field supervisor and the employee about job assignments stood as a legitimate, nondiscriminatory reason for the employee’s discharge.

As for the General Counsel’s argument that the timing of the employee’s termination was suspicious, the ALJ found that the timing was driven by the fact that the employee’s 120–day probationary period was coming to an end on or about October 10. Finally, the ALJ did not find that the employer’s failure to tell the employee why the employer was considering terminating him and give him an opportunity to explain his actions supported a finding of pretext.

Accordingly, the ALJ recommended that this complaint allegation be dismissed.

The slip opinion is 375 NLRB No. 32.

Attorneys: Jacob Butcher for General Counsel. Joshua Holleb (Klein, Paull, Holleb & Jacobs) for Altofer Inc. Charles Kiser for International Union of Operating Engineers, Local 150 aw International Union of Operating Engineers, AFL–CIO.

Companies: Altofer Inc.; International Union of Operating Engineers, Local 150 aw International Union of Operating Engineers, AFL–CIO

Cases: Labor UnfairLaborPractices OrganizingElections AgencyNews