The Best Lawyers in America®(2025 Edition) has again recognized all leaders for inclusion within its Baltimore, Maryland listings:

Christopher R. Ryon is included in the fields of:

• Administrative and Regulatory Law
• Labor Law-Union
• Litigation- Labor and Employment

Keith Zimmerman is included in the fields of:

• Education Law
• Employment Law – Individuals
• Labor Law – Union
• Litigation – Labor and Employment

David Gray Wright is included in the fields of:

• Administrative / Regulatory Law
• Labor Law – Union
• Litigation – Labor and Employment

In addition, Keith Zimmerman was designated “Lawyer Of The Year” for 2025 Education Law and Labor Law-Union

That designation follows Chris Ryon being designated “Lawyer of the Year”® Labor Law – Union (Baltimore) for 2023.  

What is the Maryland State Board of Contract Appeals (MSBCA)?

The Board is an independent unit of the Executive Branch of the State of Maryland that has jurisdiction over most appeals involving bid protests and contract disputes between the State and contractors doing business with the State. The Board consists of six members appointed by the Governor to staggered five year terms. An appeal before the Board shall be heard by a panel of not more than 3 members designated by the Chairman. 

Where does the Board of Contract Appeals conduct its hearings?

The Board of Contract Appeals is located at the William Donald Schaefer Tower, 6 St. Paul Street, Suite 601 Baltimore, Maryland 21202.  The hearings take place at that location.  

Are Board of Contract Appeals decisions subject to judicial review?

Yes, like other final administrative agency decisions, final decisions of the Board of Contract Appeals are subject to judicial review by the Circuit Court.  Board decisions are reviewed on the record.  

Do I need a lawyer to appear before the Board of Contract Appeals?

Under COMAR 21.10.05.03, corporations, partnerships, and joint ventures are required to be represented by an attorney.  Individuals may represent themselves before the Board.  In most cases, however, appearing pro se would be ill advised.      

Are Board of Contract Appeals decisions used as precedent?

Yes. Final decisions of the Board are used as precedent by State agencies and the contracting community.

Are all the Board’s decisions posted on the Board’s website?

Most final decisions of the Board are posted on the website and are searchable. Published opinions of the Board are also available at the Board’s office.

The Board will sometimes issue bench decisions on dispositive motions.  Some of these bench decisions are unpublished.  However, because board proceedings are recorded, transcripts of its bench decisions can be ordered.

Topic #2: Bid Protests

What is a bid protest?

A bid protest is a complaint related to the formation of a procurement contract.  Bid protests involve the preparation and interpretation of bid specifications, qualification and selection of successful bidders or offerors, and matters relating to the procurement process.   

Who can file a Protest?

An “interested party” may file a protest.  The procurement regulations define an “interested party” as “an actual or prospective bidder, offeror, or contractor that may be aggrieved by the solicitation or award of a contract, or by a protest.”

Must a protest be in writing?

Yes, the protest must be in writing and addressed to the procurement officer.  See COMAR 21.10.02.02B

May a protest be filed electronically?

A protest may be filed in writing and delivered by hand, electronic means, the U.S. Postal Service, or a courier service.  COMAR 21.10.02.02C

When must a Protest be filed?

It depends on the type of protest.  If the protest is based on an alleged “impropriety” in the solicitation that is apparent before bid opening or the closing date for receipt of proposals, then the protest must be filed before bid opening or the closing date for receipt of initial proposals.  All other types of protest shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier.

The MSBCA strictly enforces these restrictions.  A failure to file a timely protest can be a fatal blow to a contractor.  The Assistant Attorneys General who represent state agencies in bid protests are smart and understand the procurement law.  When a bid protest appeal lands on their desk, one of the first things they look at it is whether the protest and subsequent appeal were filed in a timely manner.    

Can the Board of Contract Appeals order the State of Maryland to award a contract to a particular contractor?

No.  The Board of Contract Appeals does not have the authority to award a contract to a particular vendor.  The Board may sustain or deny the bid protest appeal.  

What happens if the Board Sustains the Protest?

It depends.  Sometimes the Agency will take steps to award the contract to a particular vendor.   Sometimes it will elect to re-solicit or take some another step.       

Topic #3: Contract Claims

What is a contract claim?

A contract claim involves a dispute between a contractor and a state agency arising out of government contract.  Claims relate to the breach, performance, modification, or termination of a procurement contract.  Contract claims can involve the quality of performance, compliance with contract provisions, compensation, claims and change orders, terminations, or other matters arising out of the contract. 

Who can bring a contract claim?

Contract claims may be initiated by both contractors and state agencies.     

Is discovery permitted in appeals of contract claims?

Yes.  Formal discovery, including depositions, interrogatories, and admissions, are permitted.  See COMAR 21.10.06.14 and 21.10.06.15.  Contracts claims, particularly those involving construction cases, are fact intensive.  They often involve expert testimony and many documents.  

Topic #4: Board of Public Works

Who serves on the Board of Public Works?

The Board is composed of the Governor, Comptroller, and State Treasurer.

What role does the Board of Public Works play in the award of State of Maryland contracts?

Certain contracts must be approved by the Board of Public Works before they are executed and work can commence.  The Board of Public Works also adopts regulations and advisories that help shape Maryland Procurement law.  The Board wields great power over Maryland procurement.  

The Board of Public Works has delegated some of its contract approval authority to State of Maryland Procurement agencies.  See COMAR 21.02.01.04.

Topic #5:  Trusted advisors at KSC Law

Christopher R. Ryon leads the procurement and government contracts practice at KSC Law.  He is one of the few lawyers in private practice who understands the nuances of Maryland Procurement Law.  Chris brings to the table an inside perspective and assists government contractors in all aspects of working with the State of Maryland.  

As a former Assistant Attorney General with the Contract Litigation Unit, Chris represented the major procurement agencies of the State of Maryland: the University System of Maryland (USM); the units under the Maryland Department of Transportation (MDOT); the Department of Budget and Management (DBM); and the Department of General Services (DGS).  Chris has successfully litigated a variety of complex cases, including sophisticated bid protest appeals and multi-million dollar government contract claims.  This work has included cases involving large construction projects such as the Bay Bridge and Inter County Connector (“ICC”).  He has also litigated healthcare related cases involving HMO services and the State’s Pharmacy Benefits Management (“PBM”) contract. 

By David Maher

Bender’s, Labor & Employment Bulletin February 2024

On December 13, 2022, the National Labor Relations Board in Thryv, Inc. held that it would hold an employer liable to compensate employees for “all direct or foreseeable pecuniary harms that these employees suffer” as a result of the employer’s unfair labor practices.[1] In so doing, the Board found that this remedy was within its statutory authority, and found that such a remedy was neither extraordinary nor reserved for the most egregious violation, but instead was authorized to make victims of unfair labor practices whole and “restoring them to where they would have been but for the unlawful conduct.”[2]

Since issuing the Thryv decision, the Board has made it clear that remedies under this standard are appropriate and necessary in resolving unfair labor practice cases, and is beginning to remand such cases for a determination as to make-whole remedies in accordance with Thryv.[3] In the December 2022 edition of this bulletin, I discussed the Board’s potential decision in Thryv and the potential scope of such a make-whole remedy.[4] This article will follow up and discuss the issues behind Thryv, the context and holding of Thryv, and the potential application of the Board’s Thryv test to refusal to bargain cases.

I. Background of Thryv, Inc.

Thryv, Inc. arises from an employer’s actions to lay off a segment of its unionized workforce.[5] The Employer, Thryv, is a marketing firm which sells both advertising and an application for small business marketing.[6] The Union, the International Brotherhood of Electrical Workers, Local 1269, represents, among others, sales representatives employed by Thryv to solicit advertising sales.[7] Two of the classes of sales representatives were “Business Advisors” and “New Business Advisors.”[8]

During the summer of 2019, Thrvv began to take actions to prepare for laying off New Business Advisors in a certain region, most importantly, by reassigning certain employees Thryv wanted to retain through the layoff from their positions as New Business Advisors to Business Advisors.[9] A month later, Thryv gave notice to the Union that it would lay off all New Business Advisors in the region.[10] The Union demanded to bargain, and, both prior to and during bargaining, made several information requests.[11] The Union demanded that Thryv integrate the employees as Business Advisors into the bargaining unit, but Thryv declined. Thryv did not respond to its information requests and the layoffs were implemented a week after a bargaining session on the proposal.[12]

The Administrative Law Judge found that, while the failure to furnish information was an unfair labor practice, the layoffs were not unlawful.[13] The ALJ found that Thryv had fulfilled its duty to bargain with the Union and imposed the layoffs only after having reached impasse with the union.[14] The ALJ determined that the Union’s failure to offer counterproposals regarding the layoffs constituted waiver by the union of its right to bargain.[15]

II. The Board’s holding

In its decision, the Board reversed the findings of the ALJ regarding whether the layoffs were unfair labor practices.[16] The Board held that the layoffs, which Thryv began to plan and take steps to implement far in advance of the notice it gave to the union, was presented as a fait accompli, and was therefore an illegal unilateral layoff.[17]

The Board found that the subsequent bargaining did not cure the unilateral decision because the unfair labor practices committed by Thryv frustrated bargaining and prevented the Union from offering counterproposals or engaging in meaningful bargaining.[18] The Board held that these constituted unilateral changes and were further violative of the Act because it came during the bargaining of a successor agreement under the Board’s Bottom Line Enterprises doctrine.[19] Thryv’s actions to implement the layoffs prior to notice, and its failure to provide information to the union for meaningful bargaining compelled, the Board held, a finding that the layoffs were 8(a)(5) and 8(a)(1) violations.[20]

The bulk of the Board’s decision concerned the proper remedy. The Board announced a reformulation of its make-whole remedy doctrine to include direct or foreseeable harms:

[I]n all cases in which our standard remedy would include an order for make-whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice. … Standardizing this remedy is necessary to “satisfy the Board’s statutory obligation to provide meaningful, make-whole relief for losses incurred … as a result of a respondent’s unlawful conduct.”[21]

The Board found that such remedies were within its statutory authority and in accord with its precedents, but determined that such remedies could not be deemed consequential damages as they were distinct from that legal term of art.[22] The Board elected to proceed under a “direct or foreseeable damages” standard, which the Board found was not extraordinary relief or punitive, but rather a remedy to victims who are burdened with costs by the party committing the unfair labor practice.[23]

The Board provided that such remedies must be direct or foreseeable, and must be specifically calculated and supported by evidence presented by the General Counsel demonstrating (i) the amount of the pecuniary harm, (ii) that it was direct or foreseeable, and (iii) that the harm was due to the unfair labor practice.[24]

The Board mostly declined to elaborate on the types of direct or foreseeable damages available, though it did cite as examples medical expenses and damaged personal items or equipment.[25] In the context of Thryv and other cases which the Board has begun to remand for consideration of such damages, the Board did not address specific damages but ordered that such damages be determined and paid to the employees.[26] The Board noted that the specific damages requested in the case were transportation expenses, medical expenses, and damages related to reinstated employees losing credit for and potential financial benefits from having a book of clients.[27] The extent of such available damages could be quite wider, as I discussed in my December 2022 article.[28]

There are no obvious limitations within the Board’s decision which would suggest a narrow applicability to what constitutes foreseeable damages. Further, as the Board stated, the strength of both the remedy and in its statutory justification comes from its breadth and regularity.[29]  Fashioning a regular remedial regime, and regular and expected practices to investigate and prove such damages will effectively both remove the economic pain of suffering an unfair labor practice and provide an illegally terminated or disciplined employee a more foreseeable outcome.

III. Make-whole remedies in refusal to bargain cases

There is a parallel question, in the wake of Thryv, Inc., regarding the make-whole remedy in failure to bargain cases. A number of Board decisions and courts in the 1960s and 1970s examined this question, [30] and the Board’s resulting Ex-Cell-O doctrine which declined to order such damages.[31] In the Ex-Cell-O doctrine, the Board held that it did not have the authority to order certain make-whole remedies in failure to bargain cases, where employees suffered pecuniary injuries based on an agreement the employer would, had it been bargaining in good faith, have agreed to.[32] While this decision was reversed, the Ex-Cell-O doctrine remains in effect. Two lines of cases from that period show how a doctrine, held by the courts to be legally incorrect, remains in place. The issues grappled with by the Board and the courts suggests that Thryv, Inc. may have a role in resolving this issue..

The Tiidee Products, Inc. line of cases concerned unfair labor practices committed during an organization campaign, which included retaliatory terminations of certain employees.[33] The Board, in relevant part, affirmed findings that the employer had committed a series of unfair labor practices and orders of prospective relief to affected employees of the traditional remedies of reinstatement and back pay.[34] However, the Board also affirmed the Administrative Law Judge’s decision to not afford make-whole remedies beyond those traditional remedies based on the employer’s illegal refusal to bargain or its retaliatory terminations.[35]

The union appealed this decision to the U.S. Court of Appeals for the D.C. Circuit.[36] The Court reversed the Board and remanded, ordering it to reconsider its failure to consider a broader make-whole remedy due to the employer’s unfair labor practices causing a bargaining delay and consequential economic damages.[37] The Court also ordered the Board to consider remedies based on what employees may have received from bargaining but for the unlawful refusal.[38] The Court emphasized the employer’s “brazen refusal to bargain,” and, while taking care to elucidate the basic nature of the make-whole remedy to “compensate the party wronged and withhold from the wrongdoer the fruits of its violation,” still held that a make-whole remedy ought to be available only where thee are “special considerations” made by the employer’s wrongful conduct, presenting a punitive theory along with the remedial one.[39]

In the meantime, the Board issued its decision in Ex-Cell-O Corp.[40] In that decision, the Board held, in part, that it did not have the statutory authority to order a make-whole remedy.[41] But the Board also focused its criticism of such damages as a punitive action, based upon “manifestly unjust” conduct of the employer and of the uncertain nature of those damages.[42] The Board’s concerns in Ex-Cell-O are echoed in the criticism the Board addresses in Thryv, Inc., and the concern the same fundamental basis for the Board’s authority to order remedies.

The D.C. Circuit remanded for further consideration by the Board in line with its holdings in the Tiidee Products line of cases.[43] The resulting saga of cases ping-ponged back and forth between the Board and D.C. Circuit for years.[44] Ultimately yielding to the Board’s refusal to order such remedies, even in the face of orders and decisions authorizing make-whole remedies, Chief Judge Bazelon summarized the resulting division and moved in the direction of the Thryv Board:

I think it helpful to clearly emphasize that the Board cannot avoid the mandate of Tiidee I by repeated findings that union allegations concerning possible contract terms are not supported by the evidence. The policy of the NLRA requiring good faith bargaining between management and labor is too important to be vindicated only through in futuro relief. The ‘make-whole’ remedy is the single effective action that can be taken to mitigate the past effects of brazen refusals to bargain.[45]

By this point, the D.C. Circuit had drawn back from the punitive theory entirely, but embraced the doctrine of a make-whole remedy as the sole guarantor of good faith bargaining. While the Supreme Court would reiterate that the decision to order a make-whole remedy was, at bottom, a discretionary one vested in the Board itself,[46] reviewing courts have long held that make-whole remedies were an important consideration in the failure-to-bargain cases.[47] However, the Board’s Ex-Cell-O doctrine has remained in place.

Recently, in Pathway Vet Alliance, LLC, d/b/a Thrive Pet Healthcare, the General Counsel filed a motion asking the Board to reconsider the Ex-Cell-O doctrine in light of the caselaw authorizing the make-whole remedy in failure to bargain cases.[48] Pathway was remanded by the Board before a decision was made on the General Counsel’s motion.[49] However, given the Board’s decision in Thryv and the movement in the Board’s caselaw away from a punitive, special circumstances view of the make-whole remedy and towards a wholly remedial theory, the line of the existing caselaw from these 70’s-era failure to bargain cases would more than justify the Board’s rejection of the Ex-Cell-O doctrine. Making such a remedy a regular rather than extraordinary remedy, and providing an evidentiary scheme by which the Board can determine whether such damages have or could be sufficiently proved, makes clear that such a remedy is truly remedial and thus within the Board’s authority. Providing a clear evidentiary standard and a relevant causal standard to the General Counsel’s burden to prove such damages makes clear that such damages are not speculative. As the Board’s remedial justification and enforcement of make-whole remedies regardless of whether a respondent “deserves” a punitive response, this analysis can easily be adapted by the Board to fully effectuate the purposes of the Act in addressing the remedies in failure to bargain cases.

[1] Thryv, Inc., 372 NLRB No. 22, 1 (2022).

[2] Id. at 10-11.

[3] See Metro Man IV, LLC d/b/a Fountain Bleu Health, 372 NLRB No. 37, 7 (Dec. 28, 2022) (“In accordance with our decision in Thryv, Inc., the Respondent shall also compensate these employees for any other direct of foreseeable harms incurred.”)

[4] David Maher, Consequential Damages as ULP Remedies, 22 Bender’s Lab. & Empl. Bull. 298 (Dec. 2022).

[5] 372 NLRB No. 22, 1-2.

[6] Id. at 1.

 [7] Id.

 [8] Id.

 [9] Id. at 1-2.

 [10]  Id. at 2. At the time, the parties were operating under a year-old last, best, and final offer which contained terms related to layoff procedure. Id.

 [11] Id.

[12] Id. at 2-3.

 [13] Id. at 47-48.

 [14] Id.

 [15] Id. at 49.

 [16] Id. at 4.

 [17] Id.

[18] Id. (citing E.I. du Pont & Co., 346 NLRB 553, 558 (2006), enf’d 489 F.3d1310 (D.C. Cir. 2007).

[19] Id. at 6. The general rule is that an employer may not lay off employees during the pendency of bargaining without first bargaining the successor agreement to impasse. Bottom Line Enter., 302 NLRB 373 (1991). The Bottom Line doctrine recognizes two exceptions to the general rule: “when a union engages in bargaining delay tactics, and when economic exigencies compel prompt action.” Pleasantview Nursing Home, 335 NLRB 961, 962 (2001); Bottom Line, 302 NLRB at 374.

[20] Id.

[21] Id. (quoting King Soopers, Inc., 364 NLRB 1153, 1155 (2016), enf’d 859 F.3d 23, 26 (D.C. Cir. 2017).

[22] Id. at 7-8.

 [23] Id. at 11.

[24] Id. at 6. The respondent, of course, has the opportunity to present evidence and challenge each element. Id.

[25] Id. at 13.

[26] Id. at 14; Metro Man IV, LLC, 372 NLRB No. 37 at 7.

[27] Id. at 14.

[28] Supra note 4 at 299-300.

[29] See, e.g., Thryv, Inc., 372 NLRB No. 22 at 11, 13 (“If we were to issue this make-whole relief only to address the most deplorable or flagrant violations of the Act, these remedies run the risk of becoming punitive rather than restorative.”) (citing Repulbic Steel Corp. v. NLRB, 311 U.S. 7, 10-11 (1940)).

[30] See, e.g., Un. Steelworkers of Am. v. NLRB, 496 F.2d 1342, 1349-53 (D.C. Cir. 1974) (discussing the make-whole remedy and describing the Tiidee Products and Ex-Cell-O lines of cases).

[31] 185 NLRB 107 (1970) (Ex-Cell-O Corp. I), rev’d 449 F.2d 1046 (D.C. Cir. 1971).

[32] Id. at 110.

[33] Tiidee Products, Inc. 174 NRLB 705 (1969) (Tiidee Products I). The Board also found that the employer had committed further unfair labor practices after the trial for Tiidee Products I in Tiidee Products, Inc., 176 NLRB 969 (1969) (Tiidee Products II). This decision would spawn a parallel line of cases mostly paralleling the Tiidee Products I line of cases. See Int’l Union of Elec., Radio, and Mech. Workers v. NLRB, 440 F.2d 1243 (D.C. Cir. 1970) (Tiidee Products IV); Tiidee Products, Inc., 196 NLRB 158 (1972) (Tiidee Products VI).

[34] Tiidee Products I, 174 NLRB at 714-15.

[35] Id.

[36] Int’ Union of Elec., Radio & Mech. Workers v. NLRB, 426 F.2d 1243 (D.C. Cir. 1970) (Tiidee Products III) cert. denied 400 U.S. 950 (1970).

[37] Id.

[38] Id.

[39] Id. at 1249 (quoting Montgomery Ware & Co. v. NLRB, 339 F.2d 889, 894 (6th Cir. 1965)).

[40] Ex-Cell-O Corp. I

[41] Id.

[42] Id. at 109-10.

[43] Int’l Union, Un. Auto., Aerospace & Agr. Implement Workers of Am. v. NLRB, 449 F.2d 1046 (D.C. Cir. 1046) (Ex-Cell-O Corp. II). 

[44] See Tiidee Products, Inc., 194 NLRB 1234 (1972) (Tiidee Products V) (declining to order a compensatory remedy of make-whole damages); Ex-Cell-O Corp. v. NLRB, 449 F.2d 1058 (D.C. Cir. 1971) (Ex-Cell-O Corp. III) (holding that it would be a “futile act” to remand for further consideration of the make-whole remedy); Int’l Union of Elec., Radio & Mech. Workers v. NLRB, 502 F.2d 349 (D.C. Cir. 1974) (declining to order make-whole remedies and enforce certain extraordinary remedies), cert. denied 94 S. Ct. 2639.

[45] 502 F.2d 439, 361-62 (D.C. Cir.) (statement of Bazelon, C.J. regarding denial of rehearing en banc).

[46] NLRB v. Food Store Emps. Union, 417 U.S. 1, 9-10 (1974) (remanding to the Board to consider remedies in line with the Tiidee Products cases rather than ordering new remedies). In ruling on a similar line of cases known as Heck’s, Inc., the Supreme Court acknowledged the dynamic between the Board and Circuit Courts and discussed requirement that remedies be fashioned by the Board, not modified down or up by the Courts. Id.

[47] See, e.g., Sw. Reg. Joint Bd., Amal. Clothing Workers of Am. v. NLRB, 441 F.2d 1027, 1036 (D.C. Cir. 1970) (“We remain of the view that … the Act empowers the Board in some circumstances to require the employer to make the employees whole for such measurable losses, if any, as result from an unlawful refusal to bargain.”); Retail Clerks Union v. NLRB, 463 F.2d 316, 325 (D.C. Cir. 1972); USW, 496 F.2d at 1349-53).

[48] Case No. 03-CA-291267, Motion for Summary Judgment (June 24, 2022), https://apps.nlrb.gov/link/document.aspx/09031d45837c9b44.

[49] Id., Remand Order (Aug. 4, 2022), https://apps.nlrb.gov/link/document.aspx/09031d4583822480.

We are proud of the work we do for organizations and individuals to have just workplaces and just compensation for injuries.  We measure our success first and foremost by the results achieved for clients.  But we appreciate that those results are recognized by our peers and by publications too.

The Best Lawyers in America (2024 Edition) has again recognized all four of KSC’s leaders for inclusion within its Baltimore, Maryland listings:

F.J. Collins is included in the fields of:

• Employment Law – Individuals
• Labor Law – Union

Christopher R. Ryon is included in the fields of:

• Administrative and Regulatory
• Labor Law-Union
• Litigation- Labor and Employment

Keith Zimmerman is included in the fields of:

• Education Law
• Employment Law – Individuals
• Labor Law – Union
• Litigation – Labor & Employment

David Gray Wright is included in the fields of:

• Labor Law-Union
• Litigation- Labor and Employment

In addition, F.J. Collins was designated “Lawyer Of The Year” for 2024 Employment Law – Individuals (Baltimore).

That designation follows Chris Ryon being designated “Lawyer of the Year” Labor Law – Union (Baltimore) for 2023.  David Gray Wright received that designation for 2022.  Also, for 2022, Keith J. Zimmerman was designated for Education Law.

The firm’s profile in Best Lawyers can be viewed here.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Bender’s Labor & Employment Bulletin September 2022

National Labor Relations Board (“Board”) General Counsel Jennifer Abruzzo, a former union-side labor lawyer, has a robust pro-worker and pro-union agenda. Abruzzo has acted swiftly to push for greater access for unions, including the right to information from employers. In Memorandum GC21-04 (“Mandatory Submissions to Advice”), the General Counsel identified cases and areas of the law she would like the Board to revisit.  One such area is a union’s right to information concerning an employer’s pre-discipline investigation of a bargaining unit employee. The General Counsel would like the Board to review its recent decision in United States Postal Service, 371 NLRB No. 7 (2021), in which the Trump Board held that the union does not have the right to employer information related to the employer’s pre-discipline investigation of a bargaining unit employee while the investigation is ongoing.

This article examines the Board’s decision in United States Postal Service and Chairman McFerrin’s dissent, which serves as roadmap for how the Biden Board might approach a case about union access to information related to an Employer’s pre-discipline investigation.1  It also discusses the practical implications, including benefits, of employers sharing “pre-investigative” information with unions.

Union’s Right to Information

The Supreme Court has held that an employer has a statutory obligation to provide to a union that represents its employees requested information that is relevant and necessary to the union’s performance of its duties as the exclusive bargaining representative.2

Pursuant to Section 8(a)(5) and (d) of the National Labor Relations Act (“NLRA”), an employer must provide a requesting union with information that is necessary and relevant for the performance of its duties.3  This includes information necessary “for grievance adjustment and contract  administration.”4     The  Board  has  established that information requested regarding bargaining unit employees, and especially the filing, or possible filing, or processing of grievances is presumptively relevant.5

The caselaw is clear that a union is entitled to information related to employee discipline. What has been less clear is when the union became entitled to this information.

The Board Limits When a Union is Entitled to Pre-Discipline Investigatory Information

In  its  2021  United  States  Postal  Service  decision, the Board addressed the question of when a union becomes entitled to the employer’s disciplinary-related information.6    The  background  facts  are  as  follows. On November 20 and 27, 2018, employee Charlotte Barker failed to report to work. The employer, United States  Postal  Service,  issued  Barker  absence  without leave  (AWOL)  charges,  which  were  notifications  of the  allegations  against  her.  On  November  28,  2018, the employer notified her union, Local 300, American Postal Workers Union (APWU), that the employer had scheduled a pre-disciplinary interview to discuss Barker’s AWOL charges. In advance of the investigative interview, scheduled for December 4, 2018, the APWU requested of the employer copies of all records and documents related to the investigation. On December 3, 2018, the employer responded, “Cart before the horse. This is an investigatory interview and if we take action then you can have copies.”7  In other words, the employer responded that the Union’s request was premature.

On December 6, 2018, the APWU filed an unfair labor charge against the employer alleging that it failed to provide the requested information in a timely manner. The employer insisted that it had no duty to furnish any information before a disciplinary decision had been made, and, in this case, the employer continued to delay in furnishing it after it issued a termination notice on December 11, 2018. The Employer did not provide the responsive information until January 10, 2019.

The  APWU  filed  an  unfair  labor  practice  charge alleging that the employer failed to provide the requested information in a timely manner. The case was tried before an NLRB administrative law judge (“ALJ”), who found that the employer violated the Act by unreasonably delaying providing  the  Union  with  the  requested  information. The  ALJ  found  that  the  information  requested  by  the Union pertained to discipline and a potential grievance concerning employee’s attendance and was therefore presumptively relevant. The ALJ concluded that the union, in representing the bargaining unit employee, needed the requested information prior to the investigative interview to effectively understand the charges levied against her, to counsel her, and to prepare to represent her.

On review, the Trump Board adopted the ALJ’s conclusion that the employer violated Section 8(a)(5) and (1) by the delay in providing the requested information to the Union. A majority (Members Emanuel and Ring; Chairman McFerran, dissenting), however, reversed the ALJ’s finding that the employer’s obligation to furnish that information began shortly after the request was made, and, instead, found that the employer was obligated to provide the information only after the conclusion of the investigation.

The Trump Board declared “[w]here an employer announces that it will conduct an investigatory interview of an employee alleged to have committed misconduct and a union, prior to that interview, requests relevant information concerning the interview, the employer may refuse to disclose such information while the investigation is ongoing, but must provide it at the conclusion of the investigation.”8 The Trump Board claimed that its holding is  consistent  with  both  the  Supreme  Court’s  decision in  NLRB  v.  J.  Weingarten,9   and  the  Board’s  decision in Pacific Telephone & Telegraph Co.10

In Weingarten, the Supreme Court held that Section 7 of the Act grants employees the right to request the attendance of a union representative in any interview that he or she reasonably fears may result in discipline.11 The Trump Board in United States Postal Service emphasized that the Court in Weingarten was not granting a union “any particular rights with respect to pre-disciplinary discussions which [the union] otherwise was not able to secure during collective-bargaining negotiations,” and that the Court specifically declared that “[t]he employer has no duty to bargain with the union representative at an investigatory interview.”12

Under the Trump Board’s analysis, because the Court held in Weingarten that an employer has no duty to “bargain” with a union representative during an investigatory interview, then it follows that the employer had no obligation to provide the investigation-related information to the Union while the investigation was ongoing.

The Trump Board also pointed to the Board’s 1982 decision in Pacific Telephone, which established that if the Weingarten right to representation is to be “anything more than a hollow shell,” both the employee and the representative must also have some indication of the subject matter being investigated.13  The Trump Board quoted   the   Board’s   statement   in   Pacific   Telephone that the employer “does not have to reveal its case, the information it has obtained, or even the specifics of the misconduct to be discussed. A general statement as to the subject matter of the interview, which identifies to the employee and his representative the misconduct for which discipline may be imposed, will suffice.”14   The Trump Board concluded that the Board in Pacific Telephone ruled consistently with Weingarten in holding that, in advance of an investigatory interview, an employer does not have to disclose the information it has obtained and that it sees no reason to depart from what it characterizes as “plain, well-established precedent.”15

Relying on Weingarten and Pacific Telephone, the Trump Board found that the Employer’s obligation to provide the information began on December 11, 2018, when the Employer completed its investigation of employee’s misconduct. Under this framework, where an employer announces that it will conduct an investigatory interview of an employee alleged to have committed misconduct, prior to that interview, the employer may refuse to disclose such information while the investigation is ongoing but must provide it at the conclusion of the investigation.

Chairman McFerran’s Dissent Foreshadows  How the Biden Board Would Approach the  Issue.

Chairman  Lauren  McFerran,  the  lone  Democrat  on the Board at the time of the United States Postal Service decision, dissented, in part, to the Board’s decision. She would have affirmed the ALJ’ s decision in its entirety, by also finding that the employer had an obligation to provide the information before the investigative interview. As we now have a Democrat-majority Board, Chairman McFerran’s decision is a preview of how the Biden Board might approach this same issue.

ChairmanMcFerranurgedthatanemployee’s Weingarten rights should not come at the expense of unions’ right to information. Chairman McFerran argued that the majority uses the employee’s concurrent Weingarten right, under Section 8(a)(1), to improperly curtail the Union’s right to relevant information under Section 8(a)(5). Conflating these separate statutory rights, Chairman McFerran contended that the majority impermissibly narrowed the scope of the Union’s Section 8(a)(5) right to information, and that it presumed – in the absence of any actual evidence – that providing the requested relevant information would have interfered with the Respondent’s managerial prerogatives. Rather, as the ALJ found, McFerran urged “there is no evidence that witnesses needed protection, evidence was in danger of being destroyed, testimony might be fabricated or there was a need to prevent a coverup.”16

Chairman McFerran expressed concern that majority’s rule will now permit all employers to lawfully withhold relevant, readily available information at the moment that it would be of greatest value to unions and the employees they represent. This would limit unions’ ability to effectively to carry out their statutory duty to represent employees and to “encourage resolution of disputes” before they disrupt the workplace.”

McFerran emphasized the productive role that a union representative can play in the disciplinary process. An experienced union representative can propose solutions to workplace issues and could assist the employer by eliciting favorable facts, and “save the employer production time by getting to the bottom of the incident occasioning the interview.”18 According to Chairman McFerran, the requested documents were indisputably relevant to the Union’s representation of Barker in the investigatory interview, and the information would have assisted the union representative in preparing himself and the employee for the meeting and in participating effectively. She pointed out that the union representative “could properly have used the information to elicit favorable facts on employee’s behalf, present an informed defense, and propose potential solutions short of discharge.”19

Chairman McFerran would find that the Employer violated Section 8(a)(5) and (1) by refusing to provide the requested information before the December 4, 2018 investigatory interview.

Practical Implications

At least for now, employers can withhold information from unions while an investigation is ongoing. That may soon change with the current General Counsel and Board.

Regardless of how the Board pendulum swings on this issue, many employers elect to provide pre-discipline information to unions as a matter of course. They make the calculation that greater transparency is good for the collective bargaining relationship, and that the facts will ultimately speak for themselves.

When  employers  withhold  information  in  advance, or are coy during investigatory interviews, this can lead to employees and unions perceiving the investigatory interviews as a game of “gotcha,” and both unions and employees may be more defensive and less likely to provide a candid response.

With a disciplinary investigation, an employer may of course have legitimate concerns about confidentiality. For example, in an investigation related to allegations of violence or threats thereof, or fraud, the employer and the union may want to place limits on the disclosure of information, including the disclosure of witness identities. When an employer has asserted a confidentiality defense, it has the burden of proving that that such interests are legitimate and substantial, and that they outweigh the union’s need for information.20  This will be the case regardless of whether an employer can legally delay providing information until after the investigation is completed. Notions of fairness apply, and the parties can place boundaries of disclosure of information, such redacting names or limiting who and how documents are reviewed.

A  union,  under  its  duty  of  fair  representation,  has an obligation to administer and enforce its collective bargaining  agreements,  including  investigating  whether an employer has just cause for discipline. Upon learning that a bargaining unit employee’s performance or work conduct is under investigation, it is common for a union representative to seek information in advance of an investigatory interview. The union representative wants to know what the employer is investigating and what evidence the employer holds. A decision by the employer to withhold information until after discipline is imposed may have the effect of delaying a resolution of a potential grievance. Sharing information earlier with the union can encourage resolution of disputes before they disrupt the workplace, and it could be the difference between the union filing a grievance or not, or lead to swifter resolution or withdrawal of the grievance.

Chris Ryon is a Principal at Kahn Smith & Collins, P.A. Chris represents both private and public-sector unions in collective bargaining, contract administration, discipline and discharge cases, legislative matters, and compliance  issues.    Chris  also  litigates  on  behalf  of unions and employees before Maryland’s courts, federal courts, the National Labor Relations Board, and other administrative agencies. He is a frequent speaker at seminars and conferences on topics of interest related to labor, employment, and government procurement law

1    The Board shall consist of five members appointed by the President with the advice and consent of the Senate. 29 U.S.C. § 153(a); see also Mathew Enter., Inc. v. NLRB, 771 F.3d 812, 813 (D.C. Cir. 2014) (noting that “[t]o exercise authority in a given case, a Board panel must include at least three validly appointed members.”). This article uses the term “Biden Board” to refer to the current Board, which includes three Democratic members, two of whom were appointed by President Biden. The article uses the term “Trump Board” to refer to the Republican majority Board that immediately preceded the Biden Board.

2    See NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); and NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956).

3    Truitt, 351 U.S. at 153 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979).

4    Centura Health St. Mary-Corwin Medical Center, 360 NLRB 689, 692 (2014), citing NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); Wisconsin Bell, Inc., 346 NLRB 62, 64 (2005).

5    Yeshiva   University,   315   NLRB   1245,   1248 (1994); Contract Flooring Systems, 344 NLRB 925, 928 (2005); T.U. Electric, 306 NLRB 654, 656 (1992); Ohio Power Co., 216 NLRB 987, 991-92 (1975), enfd. NLRB v. Ohio Power Co., 531 F.2d 1381 (6th Cir. 1976).

6    371 NLRB No. 7 (2021).

7    Id. at 3.

8    371 NLRB No. 7 at 3(2021).

9    420 U.S. 251 (1975).

10  262 NLRB 1048 (1982), enfd. in rel. part Pacific Tel. & Tel. Co. v. NLRB, 711 F.2d 134 (9th Cir. 1983).

11  420 U.S. at 260-61.

12  371 NLRB at 5 (quoting Weingarten, 420 U.S. at

259-60).

13  262 NLRB at 1048.

14  262 NLRB at 1049 (emphasis in original).

15  371 NLRB at 4.

16  371 NLRB at 14.

17  371 NLRB at 14.

18  371 NLRB at 13 (quoting Weingarten, 420 U.S. at 263)

19  371 NLRB at 11.

20 See A-1 Door & Building Solutions, 356 NLRB 499 (2011); Northern Ind. Public Serv. Co., 347 NLRB 210, 211 (2006).

We wish to announce that on January 14, 2023, our colleague and good friend, Joel Smith, will retire from the law firm.  Joel leaves the firm closing out just under 45 years in legal practice dedicated to counsel and support of workers, labor organizations and non-profits in all sectors of the economy.  His work, with both public and private employees, brought him into contact with musicians and entertainers, Major League Baseball Umpires and other professional sports officials, college and public-school instructors, building trades crafts workers, industrial mechanics, production workers and line personnel, public safety officers, emergency medical personnel and fire fighters.

Joel helped to create many new organizations to expand employee representation, in Baltimore City and the State, and elsewhere nationally.  Through appellate advocacy, and his work before legislative bodies, Joel helped to develop new legal principles, statutory law and public ordinances to secure access to employment rights, and to create sustainable wage standards and benefits for working people and their families.

For his work, Joel was elected as a fellow in the College of Labor and Employment Lawyers, and was repeatedly recognized for his skills by peers in his fields of expertise in the publications of Best Lawyers and SuperLawyers.  We, at the law firm, recognize the direction and impact Joel has had on our firm, guiding us to continue to move forward after his departure.  We wish him well.

Christopher R. Ryon is included in the fields of:

• Labor Law-Union
• Litigation- Labor and Employment

F.J. Collins is included in the fields of:

• Employment Law – Individuals
• Labor Law – Union

Keith Zimmerman is included in the fields of:

• Education Law
• Employment Law – Individuals
• Labor Law – Union
• Litigation – Labor & Employment

David Gray Wright is included in the fields of:

• Labor Law-Union
• Litigation- Labor and Employment

Joel Smith is included in the fields of:

• Arbitration
• Labor Law-Union
• Litigation- Labor and Employment
• Sports Law

The firm’s profile in Best Lawyers can be viewed here.

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Joel Smith, Keith Zimmerman, and F.J. Collins were again selected this year in the practice areas of Employment and Labor Law. Joel Smith and Keith Zimmerman have been selected every year since 2007. F.J. Collins has been selected every year since 2008. Ernie Dominguez was again selected as a Rising Star.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, go to superlawyers.com.

The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world’s leading source of intelligent information for business and professionals.