🗞️ The X-Factor They Didn't Expect: How a Reality TV Producer's Texts Became a Federal Labor Violation

On February 19, 2026, Administrative Law Judge Andrew S. Gollin issued a decision finding that X Factor S2 LLC — the production company behind Season 2 of the Jonathan Frakes-hosted series X Factor (Beyond Belief) — violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it discharged four grip and electrical crew members for attempting to organize the production under IATSE.

The four employees — chief lighting technician/gaffer Noah Kelly, assistant lighting technician/best boy gaffer Andrew Choe, key grip Sean Hunt, and best boy grip Steven Miller — were hired in summer 2023 for what executive producer Daniel Castro described as a non-union, approximately 13-week project. In early July, just days before filming began, Kelly emailed IATSE Local 728 business agent Greg Reeves about "flipping" the production — an industry term for converting a non-union project to one covered under an IATSE collective bargaining agreement. Around July 6, Kelly separately texted Choe and Hunt about the plan; both expressed interest. Hunt, who was a member of IATSE Local 80 (not Local 728), also contacted his own local to report the organizing effort. On the morning of July 10 — the first day of filming — after the Union formally authorized moving forward, Reeves sent Kelly a link to a digital authorization card to sign and share with interested colleagues. Kelly signed a card and sent the link to five to ten others on the project. Hunt and Miller also signed cards; the record does not reflect whether Choe signed one.

The organizing effort was short-lived. On the first day of filming (July 10, 2023), Castro sent his director of photography, Edward Salerno, an email noting that Kelly was "talking about flipping the show" and asking whether it was "anything to worry about." The following day, Castro called Salerno into a meeting with another producer and stated he "could not have a [Union] rep coming down and having a vote happen." That evening, Castro texted and emailed all four crew members to say they had the following day off — and then arranged replacement workers to perform their jobs on July 12. When the crew arrived on set to retrieve their personal equipment, they each spoke briefly with Castro, who offered shifting and inconsistent explanations: a pending SAG strike, the need to scale to a skeleton crew, that the crew didn't "vibe well" with others, and that producers needed to "cut loose the fat." The crew was never called back. The production continued through mid-September with, in Salerno's words, "a relatively revolving door of different individuals" filling their roles.

The ALJ applied the Wright Line burden-shifting framework — the standard the NLRB has used since 1980 to evaluate employer motivation in discharge cases involving protected activity. Under that test, the General Counsel must first show that union activity was a motivating factor in the employer's action, after which the burden shifts to the employer to prove it would have taken the same action regardless. Castro's own written communications provided direct evidence on both prongs of the initial burden: his email demonstrated knowledge of the organizing effort, and his conversation with Salerno demonstrated explicit animus — an employer's stated intent to prevent a union vote. With the Respondent having failed to appear at the hearing and present any defense, the ALJ found the pretextual reasons for the dismissals to be further evidence of discriminatory intent, and ruled in favor of the General Counsel on all counts.

The case arrives at a moment of significant flux for the NLRB. For much of 2025, the Board lacked a quorum after President Trump fired board member Gwynne Wilcox, leaving ALJ decisions — like this one — unable to be finalized at the board level pending appeal. A quorum was restored in early January 2026 with the confirmation of two Trump nominees, signaling a likely shift toward more employer-friendly interpretations of labor law going forward. The Thryv, Inc. expanded make-whole remedy standard — which the ALJ applied in this case to cover foreseeable financial harms beyond traditional backpay — is among the precedents expected to face scrutiny under the reconstituted Board.

The remedies ordered include reinstatement of all four employees to their former or equivalent positions, full backpay with interest, compensation for other foreseeable financial harms, tax gross-up for lump-sum awards, expungement of discharge records from personnel files, and a mandatory notice posting for 60 consecutive days.

Key Points

• The discharge: Four grip and electrical crew members on a non-union TV production were given a day off and then replaced after the executive producer learned of their plan to organize under IATSE. Kelly and Choe were members of Local 728; Hunt was a member of IATSE Local 80; Miller's union membership is not specified in the record.
• The evidence: Castro's own email and text messages provided direct proof of both knowledge of the organizing effort and animus toward it — the two hardest elements for the General Counsel to establish in union discharge cases.
• No defense presented: The Respondent's sole representative, Castro, refused to travel from his home near San Diego to Los Angeles for the hearing, citing financial hardship, but provided no documentation to substantiate his claim. The ALJ rejected his request to appear remotely.
• Shifting explanations: Castro gave at least four different reasons to different people for the crew's removal — none of which were corroborated by evidence — which the ALJ treated as indicators of pretext and discriminatory intent.
• Wright Line framework: The case is a textbook application of the NLRB's standard for mixed-motive discharge cases, where an employer may have had both legitimate and unlawful reasons for an adverse action.
• NLRB context: The decision is issued by an ALJ, not the full Board. Either party may appeal to the Board, which as of early 2026 has a newly reconstituted Republican-leaning majority that may take a different view of certain precedents applied here.
• Broader implications: The entertainment industry's mix of non-union and union productions — and the established practice of "show flipping" — makes cases like this a recurring flashpoint between production companies and IATSE locals.

Primary Source Author: Administrative Law Judge Andrew S. Gollin, NLRB Division of Judges

Primary Source: X Factor S2 LLC and IATSE Local 728, Case No. 31-CA-323348, JD-12-26 (Feb. 19, 2026)

Primary Source Link: https://www.nlrb.gov/case/31-CA-323348

Supplemental Links

• NLRB — The NLRB Process
• Duane Morris — NLRB Decision Clarifies Wright Line Burden in Mixed-Motive Cases
• IATSE Local 728 — Organizing Your Non-Union Show
• Wrapbook — What to Do When Your Production Gets Flipped
• Center for American Progress — NLRB-Overseen Union Elections Fell in 2025
• Fisher Phillips — What Employers Should Expect from the NLRB in 2026
• OSHA Safety Training — NLRB 2026 Outlook and the Thryv Remedy Standard
• IATSE International
• IndieWire — An Indie Filmmaker Guide to Working with Hollywood Unions