Subject: LRI INK: Shifts For Every Employer's Radar, A Chicken 'Win,' Leading Through Hard Truths

March 5, 2026

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A Road To Nowhere: Now The Biden Board Failed To Bury Ex-Cell-O

by Kimberly Ricci

Under the NLRA, an employer that wants to challenge a union certification in court has a key mechanism to do so: To refuse to bargain while seeking judicial review. For over five decades, a 1970 decision, Ex-Cell-O, has protected that employer right while holding that "make-whole" remedies for doing so would "exceed the Board's statutory powers.” It further followed that a suitable remedy would be an order to bargain, not a financial penalty.


Fast forward to 2021, and Biden-era NLRB General Counsel Jennifer Abruzzo felt differently, to put it mildly. The Board then intended to cement her guidance with a decision but ultimately failed to do so. This is a complicated subject, but let’s discuss where the current Board landed.


A Decision That Protected the Right to Fight


The Ex-Cell-O case began with a UAW election, which was contested by the employer, at an Indiana plant. The process of refusing to bargain generally triggers a ULP charge, which happened here.


Accordingly, the Board declined to punish the employer for exercising this legal right, and it rejected make-whole remedies. The decision also included an argument that such remedies would be “so speculative” that they’d amount to the “imposition of a penalty.”


Abruzzo’s Overreach and the Biden Board’s Shortfall


When Jennifer Abruzzo began her NLRB tenure in 2021, she issued memo GC 21-06, “Seeking Full Remedies,” in which she forecast her aggressive plan to expand remedies for ULP charges as defined under Section 8 of the NLRA. She specifically targeted Ex-Cell-O for reversal for “declining to provide a make-whole compensatory remedy for failures to bargain.”


Clearly, Abruzzo’s goal was to intimidate employers away from seeking judicial review of union certification by installing a cost-prohibitive penalty. The Board then proceeded to sever the Ex-Cell-O make-whole issue in multiple cases, including ArrMaz Products (2022) and Hudson Institute of Process Research (2023). Then came Longmont United Hospital, but the Biden Board never carried Ex-Cell-O to Abruzzo’s desired finish line.


The New Board Makes Its Move


The current Board and General Counsel Crystal Carey have made clear that Ex-Cell-O is preserved for the foreseeable future.


First, a Feb. 26 Board decision resolved the severed Longmont issue while Board members James Murphy and Scott Mayer declined to overrule Ex-Cell-O. In doing so, this two-member majority reached the same conclusion as the 1970 decision. They reasoned that make-whole remedies would not only obstruct employers from their legal right to judicial review but also, “It is hard to imagine a better recipe for hindering, rather than encouraging, the parties reaching agreement through collective bargaining.”


Next, General Counsel Crystal Carey confirmed in memo GC 26-03 that Ex-Cell-O sits among the cases that the NLRB “would no longer pursue” for reversal.


The End of the Ex-Cell-O Road, For Now


It should be noted that Murphy and Mayer recently found "no need at this time" to review existing precedent on Thryv make-whole remedies that might apply across a wide swath of ULP cases. That could change, but the Board has ensured that Ex-Cell-O stands intact and protects employers who refuse to bargain while seeking judicial review of union certification.

 

Of course, this could also change if the Board swings back to a more labor-friendly version, so employers should still seek legal counsel in these cases and keep their eyes open for future developments.

Two Major Workforce Classification Shifts That Employers Can't Afford To Miss

by Kimberly Ricci

After labor law experienced a frozen 2025, the NLRB and DOL are forging ahead with rolling back Biden-era regulations. Developments are coming quickly, too, including significant shifts in defining two key groups: joint employers under the NLRA and independent contractors under the Fair Labor Standards Act. Employers haven't seen such consequential shifts in workforce classification in years, so let's size up these changes.


The NLRB Reinstated the 2020 Joint Employer Standard, But It’s Complicated


The Board officially brought back its 2020 joint-employer rule, through which businesses must exercise “substantial direct and immediate” control over core workplace conditions, shared with another business, before they can be classified as a joint employer. This is a higher threshold to meet than the Biden standard that required only that a business potentially be able to influence these conditions, which increased liability for employers, even if they didn’t control wages, scheduling, benefits, etc.


However, there’s a catch. Mere days before the Board’s restoration of that 2020 rule, the D.C. Circuit Court of Appeals ordered the Board to reaffirm Browning-Ferris in regard to one employer. That case had expanded the joint employment definition and was embraced by the Obama-era Board. 

 

This court order demonstrates that an NLRB standard isn’t the last word on liability for potential joint employment. Yet the timing of the NLRB’s movement on the topic shows that the Trump 2.0 Board is not hesitating to roll back Biden-era standards through rulemaking, rather than wait for a third GOP member to join to overturn precedent through decisions.


The DOL Proposed to Rescind the 2024 Independent Contractor Rule


Additionally, the Department of Labor's Wage and Hour Division unveiled a proposed rule that would roll back the Biden-era 2024 worker classification standard and use a framework similar to the previous Trump-era standard.

The proposed rule, which is subject to a 60-day comment period, relies upon an “economic reality” inquiry to distinguish between independent contractors and employees. In doing so, the rule evaluates whether an individual has control over their work and/or is running an entrepreneurial enterprise. Other factors include permanence of the working relationship and how important the person’s work is to the company’s core operations. 


What Should Employers Do Now? 


The NLRB and DOL are both signaling that they’re pushing full steam ahead with business-friendly rulemaking that reduces the circumstances under which businesses are held accountable for workers outside their direct payroll. In response, employers should stress-test their staffing and franchise structures against the restored joint employer threshold. They should also examine contractor relationships against the proposed economic reality inquiry and consider submitting a comment to the DOL.


However, that’s not the end of this story. The Browning-Ferris saga is a reminder that federal rules and regulations aren’t always the final say in any area, including labor law. Courts have input on defining classification standards, and the same goes for state law, especially when it comes to New York and California, which both favor more labor-friendly standards.


Employers who treat the NLRB and DOL’s regulatory shifts as settled law will do so at their own risk. Although the Trump administration is making favorable moves toward employers, these should still be viewed as opening moves in the shifting legal landscape of labor law.

 

Deep Leadership Podcast: If You Only Hear Good News, You’re Failing as a Leader

by Michael VanDervort

What happened:


Phil Wilson joined the Deep Leadership podcast with Jon Rennie for Episode #0418, titled “If You Only Hear Good News, You’re Failing as a Leader.”


In the conversation, Phil digs into a hard truth most executives would rather avoid: when leaders only receive polished updates and filtered optimism, it is not a sign of strong culture. It is a warning sign.


The discussion explores why bad news gets buried, how fear shapes communication flow, and what leaders can do to build environments where candor beats comfort.


Why it matters:


For HR, ER, and labor relations professionals, this is not abstract leadership theory.


When frontline employees stop surfacing problems early, you get:

  • Surprise organizing activity

  • Escalating grievances

  • Cultural drift

  • Decision making based on incomplete information


Phil outlines practical ways leaders can create conditions where truth travels upward, not just approval.


Listen here:


Podcast: https://podfollow.com/deep-leadership/episode/8649f9966c46a3704eb40470f120591da7f355dc/view

YouTube: https://www.youtube.com/watch?v=ATx56F1qQMc&t=25s 

Friday Five: Cluck, Cluck... Boom?

by Kimberly Ricci

The Teamsters “won back chicken” at Chipotle. Yes, you read that correctly.


Progressive publication Jacobin published a rather stunning, albeit entertaining, investigative report that doesn’t make its intended case.


The piece details three years of contract negotiations at the lone unionized Chipotle location in Lansing, Michigan. Those workers voted to unionize in 2022, and three years later, the union still didn’t have a contract and couldn’t convince enough workers to authorize a strike. However, the union claims to have scored a victory: “We used our union to win back chicken.”


That’s all? Apparently so. The Chipotle Union of Teamsters (CUT) is “winding down its campaign” on attempting to organize further locations. Further contract negotiations are “indefinitely paused” at the Lansing location, but CUT organizing committee members bragged that the union made a ruckus in accusing management of disallowing poultry in workers’ complimentary meals.


If there's a silver lining for the workers who were convinced to vote union, at least they didn't have to pay Teamsters dues without a first contract, but chicken is a bizarre “win” to brag about.


Speaking of Teamsters flubs, they lost a lawsuit against UPS. 


A federal judge has denied the Teamsters’ request for an injunction to halt UPS’ second driver buyout program, which was designed to offer select drivers a “$150,000 separation payment” for their voluntary resignation. 


The judge also determined that the Teamsters should have taken the matter to arbitration as the union’s Master Contract requires of disputes, although as we’ve seen before, Teamsters chief Sean O’Brien chooses to interpret that contract selectively. 


Previously, O’Brien falsely claimed that UPS “is contractually obligated to create 30,000 Teamsters jobs,” but the truth is that the company only agreed to fill, not create, “at least seventy-five hundred (7500) new full-time jobs from existing part-time jobs” before 2028. 


Additionally, UPS has been upfront about their need to restructure due to higher labor costs and diminishing volume. As a result, the company reduced its headcount “by approximately 48,000 positions” in 2025. That’s a direct result of Teamsters pushing UPS labor costs sky high with a contract leading full-time drivers to earn upwards of $170,000 annually. 


Has O’Brien accepted responsibility for his role in this mess? Of course not.


How did striking NYSNA nurses from the third hospital fare on wages?


The largest nursing strike in New York City history has fully ended with nurses from NewYork-Presbyterian heading back to work after 41 days off the job. That’s a week longer than Mount Sinai and Montefiore nurses were on strike, so how did the holdouts fare on wage boosts? They too received 12% over three years, instead of the union-demanded $220,000 base salaries (up from the current $160,000 average).


As we discussed last week, this is a far cry from union promises and the 18% raises that nurses from these hospitals received the last time they went on strike in 2023. Additionally, these workers went without paychecks for at least a month without guaranteed strike pay from NYSNA, which uses a donation fund and an unclear hardship analysis to distribute these funds.


It’s no wonder that NYC nurses felt “betrayed” by a lack of communication from their union and admitted that they largely went back to work because they were “all out of money.”


Minnesota's “captive audience meeting” ban survived a challenge.


Currently, twelve states have varying degrees of bans against so-called “captive audience meetings,” and employer challenges against these bans are ongoing. This shouldn’t be the case, given Supreme Court precedent of NLRB v. Gissel Packing (1969). In that case, the court ruled that the NLRA protects employers’ First Amendment right under Section 8(c) to engage in these meetings, by which companies have a more level playing field to dispel union fiction about what can and cannot be achieved in bargaining. 


In Minnesota, however, business groups who challenged the law do not have standing to sue, according to a new ruling by the Eighth Circuit Court of Appeals. The Associated Builders and Contractors and the National Federation of Independent Business had challenged the ban on free speech grounds, but without standing, their arguments can go nowhere.


All is not lost, however. It’s likely that the current business-friendly version of the NLRB will, at some point, roll back the Biden Board’s ban. 


ChatGPT’s entrance into the exam room isn’t impressing doctors.


As we recently told you, OpenAI launched ChatGPT Health earlier this year in what it explained was a response to a high demand for answering health questions. Although this tool won’t provide formal diagnoses, this presents privacy implications and could intensify the “Dr. Google” phenomenon that can make it difficult for doctors to convince patients to trust medical professionals’ expertise over online searches.


For those understandable reasons, researchers at Mount Sinai's Icahn School of Medicine are concerned. Their full independent evaluation, available in the Nature Medicine journal, details how ChatGPT Health fails to triage over half the cases that should be, according to physicians, determined to require urgent and/or emergency care. 


However, the researchers “emphasize that the findings do not suggest consumers should abandon AI health tools altogether.” They recognize that these tools are constantly being updated and are evolving, but to sum up: Use chatbots for health purposes with many grains of salt.

About Labor Relations INK

Labor Relations INK is published weekly and is edited by LRI Consulting Services, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.


If you use content from this newsletter, please attribute it to LRI Consulting Services, Inc. and include our website: http://www.LRIonline.com 


Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.


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About LRI Consulting Services, Inc.

LRI Consulting Services, Inc. exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 40 years, LRI Consulting Services, Inc. has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

 

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