The National Labor Relations Board (NLRB) reviewed the decision of Administrative Law Judge (ALJ) W. Keltner Locke concerning unfair labor practice charges filed against Aqua-Chem, Inc. The Respondent filed exceptions to the ALJ's decision, and both the General Counsel and the Union filed answering briefs, with the Respondent filing reply briefs. The Board affirmed the ALJ's rulings, findings, and conclusions, with a modification to the recommended Order and notice.

The Respondent argued that the proceeding violated Article II of the U.S. Constitution due to the alleged improper insulation of Board Members and ALJs from removal by the President. The Board rejected this argument, first noting that the Respondent failed to litigate these constitutional defenses during the hearing or in its posthearing brief, thereby waiving them. The Board also independently rejected the defenses, finding that the Respondent failed to establish that it suffered any harm as a result of the removal protections, citing precedent that requires a showing of harm for such constitutional challenges. The Board further declined the Respondent's request to hold the case in abeyance pending a Supreme Court resolution on the constitutionality of removal protections.

The ALJ found that Aqua-Chem, Inc. violated Section 8(a)(1) of the National Labor Relations Act (the Act) by removing union organizing signs that the Tennessee Pipe Trades Association, acting on behalf of UA Local 102, Plumbers and Pipefitters, had placed on public right-of-way adjacent to the Respondent's property. The ALJ dismissed allegations that the Respondent removed signs placed on May 27, 2024, finding insufficient evidence to prove the Respondent's involvement. However, the ALJ found that the Respondent did remove signs placed on May 28, 2024, despite the Respondent's argument that the signs were illegal and bore the Respondent's logo, creating a risk of being held responsible by city officials. The ALJ reasoned that the Respondent's legitimate concern did not justify the removal of the Union's property. The ALJ also dismissed allegations that the Respondent attempted to enlist the City of Knoxville to remove the signs and that the Respondent promulgated an unlawful rule prohibiting the use of its logo on union campaign materials.

The Board modified the ALJ's recommended Order to include specific language requiring the Respondent to return the removed signs to the Tennessee Pipe Trades Association or, if the signs no longer exist, to reimburse the Association for their cost and the cost of the sign holders. This modification was to conform to the violations found and the Board's standard remedial language.

Significant Cases Cited

• United Government Security Officers of America International, 367 NLRB No. 5 (2020): The Board deemed an affirmative defense waived when a respondent raised it in its answer but failed to litigate it at the hearing.
• Wisconsin Bell, Inc. d/b/a SBC Midwest, 346 NLRB 62 (2005): The Board deemed an affirmative defense waived when a respondent pleaded it in its answer but did not raise it at the hearing or in its posthearing brief.
• USC Care Medical Group, 374 NLRB No. 42 (2026): The Board rejected constitutional defenses where the respondent failed to establish they suffered harm as a result of the challenged statutes.
• Collins v. Yellen, 594 U.S. 220 (2021): This Supreme Court case addressed the issue of standing and the requirement to demonstrate harm resulting from allegedly unconstitutional statutes.
• K & R Contractors, LLC v. Keene, 86 F.4th 135 (4th Cir. 2023): This case held that a petitioner must assert harm resulting from allegedly unconstitutional statutes to prevail on a constitutional claim.

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