THE RUDNICK REPORT Weekly NLRB Update November 17, 2025 Volume 1, Issue 1 Welcome to This Week's Edition Dear Readers, 1. As the NLRB resumes full operations following its recent shutdown—reopening on November 13, 2025, with tolled due dates for filings and service—this edition of The Rudnick Report focuses on pivotal judicial developments shaping labor law enforcement. 2.The Board has yet to issue new decisions in October or November amid the disruption, but federal courts have been active, deepening circuit splits on remedies and employee expression. Below, we highlight four key cases from late October through early November, offering summaries, holdings, and practical implications for employers and unions alike. Stay tuned for post-reopening Board actions in coming weeks. As always, your feedback is welcome—reply to sandy@rudnickpro.com Best regards, Sanford Rudnick JD H. Sanford Rudnick & Associates www.theunionexpert.com 800-326-3046 Recent Developments 3.Sixth Circuit Joins Third and Fifth in Rejecting NLRB's Expanded Remedies: NLRB v. Starbucks Corp. (Nov. 5, 2025)In a split decision, the U.S. Court of Appeals for the Sixth Circuit upheld the NLRB's finding that Starbucks violated the NLRA by terminating a union-organizing barista in Ann Arbor, Michigan, but struck down the Board's award of "Thryv"-style expanded remedies. 4.The employee, fired in April 2022 after wearing union pins and participating in organizing efforts, was deemed discharged for protected activities. However, the court ruled that the NLRA's § 10(c) limits remedies to equitable relief like backpay and reinstatement, not compensatory damages for indirect harms such as childcare costs or rent penalties, citing Seventh Amendment concerns over jury trials. Implications: This aligns the Sixth Circuit with the Third and Fifth, creating a clear split with the Ninth Circuit (see below). Employers in these jurisdictions face narrower liability, but the uncertainty persists until Supreme Court intervention, potentially capping NLRB awards at status-quo restoration. 5. Ninth Circuit Upholds Expanded Remedies for Macy's Strikers: IUOE, Local 39 v. NLRB (Oct. 21, 2025) 6. Contrasting the growing opposition, the Ninth Circuit affirmed the NLRB's order requiring Macy's to compensate former strikers for foreseeable financial harms beyond traditional backpay, stemming from the retailer's refusal to rehire them post-strike. The decision emphasizes the Board's discretion to "make whole" employees under the NLRA, including indirect losses tied to unfair labor practices. Implications: This bolsters the NLRB's aggressive remedial stance in the West, heightening exposure for West Coast Employers. 7.The split—now Third, Fifth, and Sixth against Ninth—signals a likely Supreme Court showdown, urging multistate companies to revisit compliance strategies. 8. Eighth Circuit Greenlights Employer Restrictions on Employee Expression: NLRB v. Home Depot U.S.A., Inc. (Nov. 6, 2025) 9.The Eighth Circuit unanimously vacated an NLRB ruling that Home Depot unlawfully fired a Minnesota employee for refusing to remove a "Black Lives Matter" slogan from their work apron in 2021, amid post-George Floyd unrest. While the court sidestepped whether the display was protected concerted activity under Section 7, it held that the NLRB ignored "special circumstances" justifying the dress code ban, including political neutrality, employee safety, and customer relations in a tense environment. Implications: Employers gain leeway to enforce neutral policies during volatile periods, provided they document business justifications and apply rules consistently. However, in calmer times, broad prohibitions risk NLRB scrutiny—train managers on context-specific enforcement to avoid pitfalls. 10. Union Petitions Supreme Court to Curb Fifth Circuit's "Easy Injunctions" on NLRB Proceedings (Oct. 31, 2025) 11.The Office and Professional Employees International Union (OPEIU) asked the Supreme Court to review Fifth Circuit rulings allowing employers to enjoin NLRB actions based solely on alleged unconstitutionality of Board members' and ALJs' job protections, without proving actual harm. This approach, diverging from six other circuits, has stalled routine cases in Texas, Louisiana, and Mississippi, undermining Board functionality. Implications: A grant of certiorari could standardize injunctive relief standards nationwide, reducing forum-shopping and stabilizing NLRB operations. Unions and employees may see faster resolutions, while employers in the Fifth Circuit face interim uncertainty—monitor docket updates closely. 12. Quick Stats: NLRB Filings Snapshot (Post-Reopening Data Pending; Last Available: Week Ending Oct. 31, 2025) Category Filings Change Unfair Labor Practice (U) Charges 1,248 +4.2% Representation (R) Petitions 312 -1.1% Total Active Cases 22,456 +3.8% Source: NLRB Weekly Reports 13.Looking Ahead: With the NLRB back online, expect a surge in decisions addressing queued matters, potentially revisiting remedies amid the circuit flux. Subscribe for free at sandy@rudnickpro.com 14.If your firm needs any assistance in understanding the above cases, negotiating a favorable contract or to go nonunion or any other labor relations issue, please call H. Sanford Rudnick JD of H. Sanford Rudnick & Associates or any other labor issue, please call 1-800-326-3046 or sandy@rudnickpro.com 24/7.

An Employer could Terminate an Employee for using a BLM pin on his Apron which violated the Company’s Policy for having a Neutral Dress Code. 1. Home Depot U.S.A., Inc. v. NLRB (8th Cir., No. 24-1406, decided November 6, 2025)Key Facts: An employee at a Home Depot store near Minneapolis displayed "BLM" on his uniform apron amid ongoing racial tensions following George Floyd's murder in 2020, including store-specific incidents of discrimination and vandalism. The store enforced its neutral dress code prohibiting political messages, leading to the employee's constructive discharge after refusal to remove it. The NLRB (in a 3-1 decision from February 2024) found this violated Sections 7 and 8(a)(1) of the NLRA, ruling the display was protected concerted activity tied to workplace racial issues. 2.Holdings: The Eighth Circuit granted Home Depot's petition for review, vacated the NLRB order, and remanded. Assuming arguendo the activity was protected, the court upheld the employer's "special circumstances" defense under Republic Aviation Corp. v. NLRB and Eastex, Inc. v. NLRB, citing risks to employee/customer safety, potential dissension, and public image in a high-tension post-Floyd environment with local unrest (e.g., looting affecting the store). The court criticized the NLRB for undervaluing these business justifications. 3.Implications: Reinforces employers' ability to enforce uniform policies restricting divisive messages in volatile contexts, even if linked to workplace concerns, while offering alternatives (e.g., DEI pins). It limits NLRB overreach in second-guessing employer safety and image decisions, potentially influencing similar cases in customer-facing roles. 4. If you need any assistance in determining what an employee can put on his uniform or any other human resource need, please contact Sanford Rudnick to respond to your health care union at 800-326-3046 or sandy@rudnickpro.com

9th - Damages to union members unlawfully locked out after a strike are upheld. International Union of Operating Engineers v. NLRB (9th Cir 10/20/2025) http://case.lawmemo.com/9/operatingengineers1.pdf 1.The Union charged Macy's with unfair labor practices under the NLRA. 2.During a dispute over a successor contract, the union went on strike for three months. 3.The union ended the strike after several months and offered to return to work unconditionally. 4.Macy's then locked out union members. 5.The Board found that Macy's had violated the NLRA. 6.The 9th circuit affirmed the Board's order, finding that the employer did not have legitimate and substantial business justifications for the lockout. 7.The court denied the union's motion for extraordinary damages, and also upheld the Board's determination that the damages awarded were appropriate. 8.The court held that the issue is appropriately heard at upcoming compliance hearings related to the order and declined addressing the employer's arguments on that issue. 9. If your firm needs any assistance in determining what is a lawful lockout of your employees during negotiations, negotiating a favorable contract or to go nonunion or any other labor relations issue, please call H. Sanford Rudnick JD of H. Sanford Rudnick & Associates or any other labor issue, please call 1-800-326-3046 or sandy@rudnickpro.com 24/7.

1. An employee's right to strike is an important aspect of the right to organize but is not without limitations. Certain strikes qualify as protected activity under the National Labor Relations Act (NLRA), but not all strikes are protected. The main types of strikes covered by the NLRA are: 2(a) Unfair labor practice strikes, which protest employers' illegal activities. 2(b) Economic strikes, which may occur when there are disputes over wages or benefits. 2(c) Recognition strikes, which are intended to force employers to recognize unions. 2(d) Jurisdictional strikes, which are concerted refusals to work to affirm members' right to particular job assignments and to protest the assignment of work to another union or to unorganized employees. 3. A unionized employee's right to reinstatement after a strike ends varies based on the type of strike and the underlying reason for the strike. Employers are allowed to hire replacement workers during unfair labor practice strikes and economic strikes. 4. Economic strikers who are striking as a result of the employer's failure to reach an agreement over wages or other working conditions may be permanently replaced but cannot be terminated. Strikers who are striking as a result of an unfair labor practice cannot be permanently replaced or terminated. 5. At the end of a strike, unfair labor practice strikers are entitled to be reinstated to their former positions (even if that means the employer has to terminate replacement workers) as long as they have not participated in any misconduct. Economic strikers who offer to return to work after the employer has hired permanent replacement workers are not entitled to reinstatement. However, if they can't find equivalent employment elsewhere, they are entitled to be recalled as job openings become available. 6. Union members lose protection when they engage in strikes considered unlawful under the NLRA (e.g., sit-down strikes, strikes that endanger employer's property, strikes during cooling-off periods or strikes to force acceptance of featherbedding practices). The right to strike also may be limited by any agreements employees may have with the employer to submit disputes to arbitration for a specified period of time before striking. 7. In addition to strikes protected by the NLRA, many states also have enacted legislation regarding strikes, so it is imperative to refer to your own state laws as well as federal law.

Employer Considerations When Seeking to Exit an 8(f) Agreement and Operate Non-Union I. Background Section 8(f) of the National Labor Relations Act (NLRA) allows construction industry employers to enter into “pre-hire agreements” with unions. These agreements differ from Section 9(a) contracts because they do not require the union to demonstrate majority employee support before recognition. However, once a valid 8(f) agreement expires, an employer may have greater flexibility to discontinue recognition and lawfully operate as a non-union contractor—provided the employer does not convert the relationship into a Section 9(a) recognition. Also, determine if you have any Unfunded pension liability with the OE Pension. 2. Key Considerations for Transitioning to Non-Union 3.Determine Whether the Relationship Is 8(f) or 9(a): 3A.Review the collective bargaining agreement (CBA) language. If the agreement or past dealings include an express or implied recognition of majority status, the relationship may have converted into a 9(a) agreement, which limits withdrawal rights. The NLRB has recently scrutinized “conversion” language closely. A pure 8(f) agreement generally preserves the employer’s right to withdraw recognition upon expiration. 4.Timing of Withdrawal: 4A. An employer must wait until the CBA expires before refusing to bargain further. Premature withdrawal or repudiation may result in unfair labor practice charges filed by the union at the NLRB under Section 8(a)(5). 4B. Send your union a letter stating that your agreement is an 8f agreement and you are terminating the agreement after it expires. Make sure you follow the termination language in your contract so you do not miss any important timelines. 4C. Your union could file for an RC election before the termination of your contract to certify your union to continue bargaining for their contract. 5. Employee Rights and Petitions: 5A.Employees retain the right to file a decertification (RD) petition to remove the union. Employers cannot solicit or encourage employees to file such petitions but can lawfully withdraw recognition after expiration if there is no majority support demonstrated. 6.Operational Planning: 6A.Prepare to source, recruit, and train a qualified workforce outside the union hiring hall. Consider whether subcontracting and bid obligations require union labor under project labor agreements (PLAs) or customer contracts. 7. Risk of NLRB Litigation: 7A.The union may file unfair labor practice charges alleging unlawful withdrawal of recognition. Employers should ensure clear documentation that the agreement was 8(f) only, that withdrawal occurred post-expiration, and that no unlawful promises or coercion occurred with employees. 8.Communications: 8A. All communications to employees regarding the transition should be lawful, factual, and non-coercive. Employers may explain their right to operate non-union but must avoid threats, retaliation, or interference with employee choice. 9. Recommended Employer Actions 10.Legal Review: Conduct a full review of the current CBA to confirm whether it is an 8(f) or potentially converted 9(a) agreement. 11.Exit Strategy: Develop a plan for workforce needs post-agreement, including recruiting non-union employees. 12.Compliance: Wait until contract expiration before withdrawing recognition; avoid premature unilateral action. 13.Documentation: Keep detailed records supporting the 8(f) nature of the relationship. 14.Risk Management: Prepare for potential NLRB charges and union challenges. 15. Conclusion An employer with an 8(f) agreement has options to lawfully operate non-union after the contract expires, provided that the relationship has not been converted to 9(a) status. Careful planning, timing, and legal compliance are essential to minimize risks. Also, an employer should determine if they have any unfunded pension liability. 16. If you need any assistance in terminating your 8(f)union agreement or any other labor relations, please call H. Sanford Rudnick & Associates at 800-326-3046, www.the unionexpert.com

1.Supreme Court’s Starbucks Corp. v. McKinney In Starbucks Corp. v. McKinney (2024), the U.S. Supreme Court held that when the NLRB seeks a Section 10(j) injunction, courts must apply the traditional four-factor Winter test 1.likelihood of success on the merits, 2.irreparable harm, 3.balance of equities, 4.public interest), rejecting any special, relaxed standard for the NLRB. Wikipedia 2. If you need any assistance to get an nlrb injunction or any other labor relations, please call H. Sanford Rudnick & Associates at 800-326-3046, www.the unionexpert.com

September 22, 2025 1.Can an Employer use its management rights clause to implement cameras into his trucks without negotiating with their union. Issue Presented 2.Whether the collective-bargaining agreement between the employer and the union contained a clear and unmistakable (or clear and convincing) waiver permitting the employer to install cameras without bargaining, as addressed in Endurance Environmental Solutions, 372 NLRB No. 141 (2023). (EES) Applicable Law 3.Section 8(a)(5) of the National Labor Relations Act (NLRA) imposes a duty on employers to bargain collectively with the representative of their employees concerning wages, hours, and other terms and conditions of employment. 4.Two key doctrines inform this analysis: A. Contract-Coverage Standard: As articulated in MV Transportation, 368 NLRB No. 66 (2019), an employer may act unilaterally if the collective-bargaining agreement’s management-rights clause or other provisions provide coverage for the specific action. B. Waiver Standard: To demonstrate a waiver of the right to bargain, the employer bears the burden of showing clear and unmistakable evidence that the union waived its bargaining rights regarding the specific action. Analysis 5.In Endurance Environmental Solutions (EES), the Board examined whether the employer’s management-rights clause, which included general safety language, constituted a clear and unmistakable waiver permitting installation of inward-facing cameras in trucks without bargaining. 6.The Board concluded that the clause did not meet the "clear and unmistakable standard". The clause referenced the employer’s right to implement safety measures but did not explicitly mention surveillance, cameras, or monitoring technology. Absent explicit contractual language granting the employer the unilateral right to implement such surveillance, the Board held that the union retained its bargaining rights. It is possible the Employer violated 8A5 of the Act. 7. If you need any assistance concerning implementing cameras into your trucks without bargaining with the union or any other labor relations, please call H. Sanford Rudnick & Associates at 800-326-3046, www.the unionexpert.com for a free case analysis 24/7

NLRB'S NEW LEGAL STANDARD FOR SALTING In U.S. labor law, salting is a union-organizing tactic in which one or more union members (called salts ) apply for jobs with a non-union employer—often without disclosing their union affiliation—with the intent to organize that workforce from the inside once hired. What GC Memo 25-08 says / changes / emphasizes Here are the key points and changes from GC Memo 25-08: 1.Supersedes Prior Guidance It rescinds the previous guideline memorandum (GC 08-04 (Revised) re: Toering Electric Company) and replaces it. CDF Labor Law 2.Emphasis on Toering standard The Memo clarifies that Toering should fully govern salting cases going forward. That means Regions must evaluate both (a) whether the applicant submitted/authorized an application, and (b) whether the applicant had a genuine interest in employment, in addition to satisfying the FES requirements. CDF Labor Law+1 The GC must prove these components by a preponderance of the evidence. CDF Labor Law+1 3.Case processing / Investigation focus Investigators (Regional Offices) are instructed to focus early on collecting evidence from the charging party (e.g. the applicant/union) rather than immediately seeking employer evidence. The logic is to determine first whether the basic Toering factors are satisfied (application + genuine interest). If not, the GC may dismiss the charge without burdening the employer. CDF Labor Law+3CDF Labor Law+3Littler Mendelson P.C.+3 In salting campaigns that submit “mass” or “batch” applications, Regions should determine whether each applicant authorized the submission of an application on their behalf. CDF Labor Law+1 4.Evidence of genuine interest Regions should probe to see if the applicant’s behavior and application materials show a genuine interest. Instances that may weigh against genuine interest include: refusing similar employment with the employer in the past; antagonistic or offensive remarks or behavior in the application or interview; incomplete or stale applications; conduct inconsistent with the normal expectations of someone applying for a job. CDF Labor Law+1 Just stating one would have accepted a job offer isn’t sufficient alone. The GC must later (if challenged by employer) rebut evidence of insincerity. CDF Labor Law+1 5.When employer evidence is solicited Only after the charging party’s evidence meets the Toering factors (or the issue is otherwise unclear), the Region should seek evidence from the employer. If the evidence from the charging party is lacking (e.g. no proof of application or no proof of genuine interest), the GC should consider dismissing early rather than proceeding to employer discovery. CDF Labor Law+1 6.Backpay period and remedies The Memo directs Regions to conduct “pre-complaint backpay investigations” for meritorious cases to determine how long the salt applicant would have worked if hired. Cannot assume indefinite tenure. Factors considered include the applicant’s personal circumstances, whether union plans or instructions affect duration, historical duration of salts’ employment, etc. CDF Labor Law+1 Also, employer should be able to provide evidence that reduces or negates the backpay claim. CDF Labor Law 7.Referral to Division of Advice Cases should be submitted to the Division of Advice when evidence from the charging party does not clearly resolve application submission / authenticity or genuine interest issues, or when there’s uncertainty whether the applicant is genuinely interested. CDF Labor Law 8. If you need any assistance concerning Salting cases or any other labor relations, please call H. Sanford Rudnick & Associates at 800-326-3046, www.the unionexpert.com for a free case analysis 24/7

September 2, 2025 1 . President Nominates Two Lawyers to Restore NLRB Functionality 2 . The Trump administration has submitted two nominations to the Senate— Scott Mayer (Boeing labor counsel) and James Murphy (veteran NLRB official)—to fill vacant seats and restore a Republican majority. Once confirmed, these appointments would enable the Board to regain quorum and resume adjudicating cases. A Republican-majority Board is expected to overturn some of the pro-union precedents from the Biden era 3. As of mid-February 2025, the NLRB was operating without a quorum, with only two members (Chairman Marvin Kaplan and Member David Prouty) after President Trump fired Board Chairperson Gwynne Wilcox on January 27, 2025. The National Labor Relations Act (NLRA) requires three members for a quorum to issue decisions or engage in rulemaking. 4.NLRB has increased elections for 2024 and 2025 5 . The NLRB faced significant challenges in 2024 and early 2025, including a 27% increase in union elections compared to 2023, totaling 1,943 elections, often under expedited rules. Strike activity also increased, reflecting heightened labor activity. 6. If your firm needs any assistance relating to increased election activity at the NLRB or any other labor relations issues please contact, Sanford Rudnick JD at 1-800-326-3046 or www.theunionexpert.com