🗞️ A Cough Drop and a Paycheck Complaint Cost Two Union Electricians Their Jobs. The NLRB Just Ordered Them Reinstated.

On May 28, 2026, the National Labor Relations Board issued a decision finding that Nitro Construction Services, a West Virginia electrical and mechanical contractor, violated federal labor law when it laid off two union electricians from a construction project in Ironton, Ohio in late December 2022.

The employees, Michael Bishop and Robert Darren Brumfield, were referred to the PureCycle Technologies construction project by IBEW Local 317 under a collective-bargaining agreement. Within days of each other, Brumfield confronted the company's superintendent about returning to work too soon after a COVID-19 infection, and Bishop, backed by Brumfield, disputed a paycheck he believed was two hours short under the union contract's show-up pay provision. The morning after the paycheck dispute, superintendent Jason Dillard notified the union that Bishop and Brumfield, and only those two employees, would be laid off. They were gone the following day.

The NLRB, applying the burden-shifting framework established in Wright Line, 251 NLRB 1083 (1980), found that the timing of the layoffs, the absence of any documented business justification, the company's failure to call the general contractor's representative as a witness, and the decision to request ten additional electricians from the union within nine days of the layoffs all pointed to unlawful retaliation. The company's cost-cutting rationale was rejected as pretextual.

Administrative Law Judge Geoffrey Carter, whose October 30, 2024 decision the Board affirmed and adopted as modified, identified a particularly telling inconsistency: Brumfield had been hired alongside three other group-two union referrals on the same date, none of whom were laid off, directly undercutting the company's claim that it selected workers based on referral group order.

The Board declined to find violations related to the company's refusal to hire Brumfield for two subsequent projects in 2023, at the Mountaineer powerhouse project and the Nucor steel mill. In both instances, the project manager's stated practice of hiring only workers he personally knew was found to be a plausible, non-pretextual explanation, and the Board found that the General Counsel had not established that any anti-union animus carried over from the PureCycle superintendent to that separate decision-maker.

Consistent with the Board's 2022 ruling in Thryv, Inc., 372 NLRB No. 22, which expanded make-whole remedies beyond traditional back pay to cover all direct or foreseeable pecuniary harms, the Board ordered Nitro Construction Services to compensate both employees for any additional financial losses stemming from the unlawful layoffs, including job-search costs. That remedial standard has faced ongoing legal challenge across several federal circuits, and the Board noted that two of its three members, Chairman Murphy and Member Mayer, would be open to reconsidering the Thryv precedent in a future proceeding, though both agreed to apply it in the absence of a three-member majority to overrule it.

Key Points

• Nitro Construction Services violated Section 8(a)(3) and (1) of the National Labor Relations Act by laying off Michael Bishop and Robert Darren Brumfield on December 30, 2022, in retaliation for protected concerted activity.

• The protected activity included Brumfield confronting superintendent Jason Dillard on December 27, 2022 about working while recently recovered from COVID-19, and both employees invoking the collective-bargaining agreement on December 28, 2022 to contest a paycheck that underpaid Bishop for a partial day worked.

• The company's cost-cutting rationale was deemed pretextual: no documentation of a workforce-reduction directive existed, the general contractor's project manager was not called as a witness, and Nitro requested a total of ten additional electricians from the union on January 8 and January 23, 2023, within days and weeks of the layoffs.

• Foreman Dwight Barker's knowledge of the paycheck dispute was legally imputed to superintendent Dillard, the decision-maker, because Barker was found to be a statutory supervisor under Section 2(11) of the Act.

• The refusal-to-hire allegations related to the 2023 Mountaineer powerhouse and Nucor projects were dismissed because the General Counsel did not demonstrate that the project manager who rejected Brumfield was aware of, or motivated by, the events at the PureCycle project.

• The remedy requires reinstatement within 14 days, full back pay with interest, compensation for direct or foreseeable financial harms beyond lost wages under the Thryv framework, expungement of the layoffs from company personnel files, and notice posting at Nitro's Nitro, West Virginia facility and, if still active, the PureCycle jobsite.

Primary Source Author: Administrative Law Judge Geoffrey Carter; affirmed by Chairman James R. Murphy and Members David M. Prouty and Scott A. Mayer

Primary Source: Nitro Construction Services, 374 NLRB No. 120 (May 28, 2026)

Primary Source Link: NLRB Case 09-CA-313196

Supplemental Links

• National Labor Relations Act, NLRB
• Section 8(a)(3): Discriminating Against Employees for Union Activity, NLRB
• Wright Line Burden-Shifting Standard, Duane Morris
• Thryv, Inc. and the Expansion of Make-Whole Remedies, Littler
• Circuit Court Challenges to Thryv Remedies, Labor Relations Update
• 29 U.S.C. § 158: Unfair Labor Practices, Legal Information Institute