🗞️ NLRB Judge Orders Cincinnati Painter Reinstated, Strikes Down Employer's Confidentiality Rules

On February 17, 2026, Administrative Law Judge Kimberly R. Sorg-Graves issued a decision finding that B.N.F. Painting, LLC, a Cincinnati-based commercial painting contractor, committed multiple violations of the National Labor Relations Act (NLRA) by terminating an employee who discussed wages with coworkers and by maintaining employee handbook provisions broad enough to deter workers from exercising their legally protected rights.

The case originated when Christopher Hauser, a painter with a union background hired by the company in August 2022, discussed wage rates with colleagues on two occasions in October and November of that year. The ALJ determined Hauser's discharge effective date was November 25, 2022 — the Friday before Thanksgiving, which was his last day worked. On November 28, the first workday following the holiday, Project Manager Lance Boomer sent Hauser a text message confirming the termination: "Just letting you know that Friday was your last day working with us. We heard that you had talked about how much money we are paying you and we can't have that here." A follow-up text from General Manager Jason Felts acknowledged the wage discussion "shouldn't have been done" before attributing the termination to "lack of work."

Hauser filed an unfair labor practice charge with NLRB Region 9 in May 2023. The Regional Director issued a formal complaint in October 2024, and a two-day trial was held in Cincinnati in January 2025.

The ALJ found the text messages from management to constitute unlawful interference under Section 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. The Board has long held that wage discussions among employees represent core Section 7 activity — described in prior decisions as "the grist on which concerted activity feeds." Because the texts explicitly stated that discussing wages "can't have that here" and "you should of never talked about wages," the ALJ determined the only reasonable interpretation was a threat of discipline for protected conduct.

The ALJ applied the burden-shifting framework established in Wright Line, 251 NLRB 1083 (1980), under which the General Counsel must first show that protected activity was a motivating factor in the adverse action — establishing employee engagement in protected activity, employer knowledge of that activity, and employer animus toward it. If that threshold is met, the burden shifts to the employer to demonstrate it would have taken the same action regardless of the protected conduct.

The General Counsel met the initial burden without difficulty. Animus was evidenced not only by the text messages, but by Felts' trial testimony, in which he repeatedly expressed the view that employees should not discuss wages because it makes coworkers "disgruntled" — statements the ALJ noted he continued to make even as his own counsel attempted to redirect him. The timing was also telling: the discharge was effective the same day as Hauser's second wage conversation — November 23, when he spoke with a Neyer Construction management trainee — with Hauser notified by text on the following Monday, before his current project was complete.

Respondent's "lack of work" defense failed for insufficient evidentiary support. The company produced no documentary evidence — no timecards, invoices, or contract completion records — demonstrating a shortage of work at the time of Hauser's termination. In fact, Hauser testified that the job he was working remained unfinished when he was let go, and the company rehired a former employee in January 2023 before laying off any additional workers.

The ALJ evaluated three sets of handbook provisions under the standard established in Stericycle, Inc., 372 NLRB No. 113 (2023), which directs the Board to assess rules from the perspective of a reasonable employee who is economically dependent on the employer and contemplating protected concerted activity. Under Stericycle, if a rule could reasonably be interpreted to chill Section 7 rights, it is presumptively unlawful — even if a non-coercive interpretation also exists — unless the employer can show the rule advances a legitimate and substantial business interest that cannot be served by a more narrowly tailored provision.

All three challenged provisions were struck down:

The non-disclosure/confidentiality rule defined confidential information to include "compensation data," "financial information," "personnel/payroll records," and "conversations between any persons associated with the company," with discipline up to termination for disclosure. The ALJ found the language broad enough that a reasonable employee would interpret it as prohibiting wage discussions — a reading consistent with prior Board decisions invalidating similar "compensation data" restrictions.

The standards of conduct prohibited "boisterous or disruptive activity in the workplace" and "insubordination or other disrespectful conduct" without further definition. The ALJ found these terms sufficiently imprecise to encompass protected workplace disputes, citing Component Bar Products, Inc., 364 NLRB 1901 (2016), which invalidated identical language.

The prohibition on unauthorized disclosure of business "secrets" or confidential information was found unlawful in context because the handbook's definition of confidential information — compensation data, payroll records, and all workplace conversations — left a reasonable employee unable to distinguish permissible disclosures from prohibited ones.

The company's argument that the rules were intended only to protect sensitive personal records such as garnishment information was rejected; the ALJ held that employer intent is not the operative standard under Stericycle, and that ambiguous rules are construed against the drafter.

The ALJ ordered B.N.F. Painting to offer Hauser reinstatement to his former or a substantially equivalent position within 14 days and to make him whole for lost wages and benefits. Backpay is to be computed with interest compounded daily per Kentucky River Medical Center, 356 NLRB 6 (2010), and Hauser is also entitled to compensation for other direct or foreseeable pecuniary harms under Thryv, Inc., 372 NLRB No. 22 (2022), including job-search expenses. The company must also compensate Hauser for any adverse tax consequences of a lump-sum award.

On the work rules, B.N.F. Painting must rescind the challenged handbook provisions and either furnish employees with corrective inserts or distribute a revised manual. Physical and electronic notice postings are required for 60 consecutive days; if the company has ceased operations, it must mail notices to all employees since November 15, 2022.

Key Points

• B.N.F. Painting management explicitly cited wage discussions as the reason for Hauser's termination in text messages — direct evidence the ALJ found independently sufficient to establish unlawful animus.
• The Wright Line framework shifts the evidentiary burden to the employer once the General Counsel establishes protected activity, knowledge, and animus; Respondent's failure to produce documentary evidence of a workflow shortage proved fatal to its defense.
• Under the Stericycle standard (2023), work rules are evaluated from the perspective of an economically dependent employee contemplating protected activity — a framework that replaced the prior Boeing Co. categorical balancing approach and places the rebuttal burden on the employer to show a narrowly tailored legitimate business interest.
• Confidentiality clauses that list "compensation data" or broad categories of "personnel information" without limiting language remain a persistent enforcement target, regardless of employer intent.
• The decision reinforces that merely maintaining an overbroad rule — even without enforcement — constitutes an independent Section 8(a)(1) violation.
• Remedies under Thryv, Inc. (2022) expand traditional make-whole relief to include consequential pecuniary harms beyond lost wages, increasing the cost exposure of unlawful discharges.

Primary Source Author: ALJ Kimberly R. Sorg-Graves, U.S. Administrative Law Judge

Primary Source: B.N.F. Painting, LLC, JD-13-26, Case 09-CA-318278

Primary Source Link:

Supplemental Links

• NLRB — Employee Rights Under the NLRA (Section 7)
• NLRB — National Labor Relations Act Full Text
• NLRB — Stericycle, Inc., 372 NLRB No. 113: New Work Rules Standard (Aug. 2, 2023)
• NLRB — Wright Line Burden Clarification (Intertape Polymer)
• U.S. National Archives — NLRA Legislative History (1935)
• NLRB — Region 9 Field Office (Cincinnati)
• Venable LLP — Stericycle Standard Analysis for Employers
• Littler Mendelson — Stericycle Decision Overview