🗞️ NLRB Orders California Contractor to Bargain, Rejecting Mail Ballot and Constitutional Challenges
The NLRB ordered Hale Construction to bargain with Bricklayers Local 3, rejecting the company's objections to a mail ballot election and constitutional challenges to the Board's structure.
The National Labor Relations Board on July 22, 2026, ordered Hale Construction, Inc., a Manteca, California general contractor, to recognize and bargain with Bricklayers, Tilesetters and Allied Craft Workers, Local 3, resolving a case that reached the Board through a common legal maneuver known as a "technical refusal to bargain." After the union won a mail ballot election held in mid-2025 and was certified as the exclusive representative of Hale's bricklayers, the company refused to negotiate, arguing that the regional director should have held an in-person vote instead. Because Board certification decisions cannot be appealed directly to a federal court, employers frequently refuse to bargain deliberately, allowing a resulting unfair labor practice finding to serve as the vehicle for judicial review, a practice the Board has long recognized as permissible.
The three member panel, composed of Chairman James Murphy and Members David Prouty and Scott Mayer, found that Hale's objections to the election method had already been raised and rejected in the underlying representation proceeding and that the company presented no new evidence justifying reconsideration. The Board also dismissed constitutional arguments that a hearing would violate the company's Seventh Amendment right to a jury trial and that the removal protections afforded to Board members and administrative law judges violate Article II of the Constitution, citing established precedent including NLRB v. Jones & Laughlin Steel Corp. and Atlas Roofing Co. v. OSHRC.
The decision arrives at a notable moment for the agency. The Board spent most of 2025 without the three member quorum needed to issue binding rulings after a member's removal, only regaining that authority when Murphy and Mayer were sworn in on January 7, 2026. Member Prouty, the panel's sole Democratic appointee, dissented in part, arguing for additional remedies such as make whole relief and a notice reading, positions he first outlined in his dissent in Longmont United Hospital, a February 2026 decision in which the Board majority declined to expand remedies available in cases where an employer withholds bargaining to test a union's certification. The majority in the Hale case found the Board's traditional remedies of a bargaining order and posted notice sufficient.
Key Points
- The Board certified Bricklayers Local 3 as the exclusive bargaining representative for Hale Construction's Manteca, California bricklayers following a mail ballot election conducted from June 24 to July 16, 2025.
- Hale refused to bargain to preserve its objection that the regional director erred in ordering a mail rather than in person election, a dispute the Board had already resolved when it denied review in February 2026.
- The Board granted summary judgment, finding no newly discovered evidence or special circumstances warranting a hearing on issues already litigated in the representation case.
- Hale's Seventh Amendment and Article II removal power arguments were rejected as foreclosed by existing Supreme Court and appellate precedent.
- The Board ordered Hale to bargain on request with the union and post an employee notice, both physically and electronically, for 60 days.
- Member Prouty dissented in part, favoring additional remedies including make whole relief for economic harm and a notice reading; the majority found standard remedies adequate.
Primary Source Author: National Labor Relations Board (Chairman James Murphy and Members David Prouty and Scott Mayer)
Primary Source: Hale Construction, Inc., 375 NLRB No. 3 (July 22, 2026)
Primary Source Link: https://www.nlrb.gov/case/32-CA-373919
