This National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) decision addresses allegations that X Factor S2 LLC (the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging four employees—Noah Kelly, Andrew Choe, Sean Hunt, and Steven Miller—because they engaged in, or were believed to have engaged in, protected concerted and union activities. The four employees constituted the grip and electrical crew for a television film project.

The ALJ found that prior to the commencement of filming, Noah Kelly initiated discussions with the International Alliance of Theatrical Stage Employees (IATSE) Local 728 (the Union) regarding the organization of the project. Kelly also discussed this plan with fellow crew members Andrew Choe and Sean Hunt, and Hunt subsequently spoke with Steven Miller. On the first day of filming, the Respondent's executive producer, Daniel Castro, became aware of the organizing effort. Following the second day of filming, Castro gave the four crew members the next day off and subsequently replaced them with a new crew. The Respondent failed to appear at the hearing to contest these allegations or present any evidence in its defense.

The legal analysis applied the framework established in Wright Line, as approved by the Supreme Court in NLRB v. Transportation Management Corp., to assess the employer's motivation for the adverse action. The ALJ determined that the General Counsel met the burden of proving that the crew's protected activities were a motivating factor in the Respondent's decision. This was supported by evidence that all four employees were involved in the plan to organize the project, with Kelly initiating the effort and distributing authorization cards, and Hunt and Miller also signing cards.

Crucially, the ALJ found that the Respondent, through Daniel Castro, knew about or suspected the crew's unionization efforts and displayed animus towards this activity. Direct evidence of this knowledge was Castro's email to the director of photography, Edward Salerno, on July 10, stating that Noah Kelly was attempting to "flip the show" and inquiring if it was a concern. Animus was evidenced by Castro's subsequent statements to Salerno on July 11, where he expressed the need to replace crew members to prevent a union representative from "coming down and having a vote happen." The timing of the Respondent's decision to remove and replace the entire crew, coupled with Castro's statements and the hiring of seemingly less experienced replacements, indicated a causal connection and an intent to stifle the organizing effort.

While Castro's initial email only mentioned Kelly, the ALJ inferred that Castro suspected Choe, Hunt, and Miller were also involved, citing Board precedent that employer suspicion, coupled with general knowledge of union activity, animus, and pretextual reasons for discharge, can support such an inference. Furthermore, the close working relationship among the four crew members and the employer's tendency to treat them as a group also contributed to this inference. The ALJ also noted that even if Choe, Hunt, and Miller were considered neutral employees, their discharge could still be unlawful if done to facilitate or cover up discriminatory conduct against a known union supporter.

The ALJ found that the Respondent offered shifting and pretextual explanations for the crew's removal, including providing "breathing room," scaling down to a skeleton crew due to a SAG strike, personality clashes ("did not vibe well"), and trimming "the fat." These reasons lacked substantiation and were contradicted by the evidence. The ALJ also highlighted Castro's statement to Hunt that he "wished all his shows could be union," which was interpreted as expressing a desire for a non-union project, further indicating animus.

Because the Respondent failed to present any evidence or defense, it could not meet its burden under Wright Line to demonstrate it would have taken the same action in the absence of the protected activity. The ALJ concluded that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Kelly, Choe, Hunt, and Miller due to their actual or perceived union and concerted activities. The decision recommended an order requiring the Respondent to cease and desist from such practices, offer reinstatement, and provide backpay and compensation for other foreseeable harms to the discharged employees.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing employer motivation in unfair labor practice cases, requiring the General Counsel to show protected activity was a motivating factor and then shifting the burden to the employer to prove the adverse action would have occurred absent the protected activity.
• NLRB v. Transportation Management Corp., 462 U.S. 393 (1983): The Supreme Court approved the Wright Line framework, affirming that the Board could require employers to prove by a preponderance of the evidence that they would have taken the same action even without the protected union activity.
• Intertape Polymer Corp., 372 NLRB No. 133 (2023): This case reaffirms the principles for establishing discriminatory motive, including direct or circumstantial evidence such as timing, contemporaneous unfair labor practices, and pretextual reasons for adverse actions.
• Hyundai Motor Mfg. Alabama, LLC, 366 NLRB No. 166 (2018): This decision reiterates that an employer violates the Act by taking adverse action against an employee suspected or believed to have engaged in protected activity, regardless of whether the employee actually did so.
• Embassy Vacation Resorts, 340 NLRB 846 (2003): This case supports the principle that an employer may violate the Act by taking adverse action against a neutral employee if it is done to facilitate or cover up discriminatory conduct against a known or suspected union supporter.

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