January 28, 2026|Franchise Frontlines
January 28, 2026 | NLRB Division of Judges | JD-07-26
Executive Summary
In a January 28, 2026 decision, Administrative Law Judge Keltner W. Locke found that American Tower Corporation violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by (1) making statements that Board precedent treats as implied threats when employees complain about wages and (2) maintaining a confidentiality agreement that prohibited employees from disclosing salary and compensation information. At the same time, the ALJ rejected the General Counsel’s claim that the employer unlawfully discharged an employee for union and protected concerted activity, concluding under Wright Line that the discharge was motivated by legitimate business concerns and would have occurred regardless of the employee’s protected activity. The decision is significant for employers, including franchisors, because it applies the Board’s current Stericycle framework to confidentiality rules while also illustrating how careful documentation and consistent business reasoning can defeat a discriminatory discharge allegation.
Relevant Background
American Tower Corporation operates telecommunications towers and employs Operational Site Leads (“OSLs”) to perform field inspections and related duties. In 2023, the company implemented operational changes that altered OSL job responsibilities and required closer collaboration with construction managers.
One OSL, Michael Hoffman, voiced concerns to management regarding wages, vacation policies, workloads, and broader working conditions. He also mentioned the possibility of unionizing and later engaged in organizing discussions with other employees. The company was aware that Hoffman had raised wage concerns and referenced union activity.
In parallel, management had received prior complaints about Hoffman’s confrontational interactions with third parties and observed what it perceived as resistance to new job expectations, particularly a requirement that he work collaboratively with a specific construction manager. After multiple communications seeking assurance that he would perform the revised job duties, the company terminated his employment in August 2023.
The complaint alleged that (1) management made unlawful implied threats in response to Hoffman’s protected activity, (2) the company maintained an overbroad confidentiality agreement, and (3) the discharge violated Sections 8(a)(1) and 8(a)(3) of the Act.
Decision
The ALJ first addressed statements made by human resources and operations leadership to Hoffman. In one conversation, a human resources representative told Hoffman that if he felt the job was “not the right fit,” no one was forcing him to stay. In another, a vice president asked why he did not seek another opportunity if he was unhappy.
Although the ALJ expressed reservations about whether those remarks would reasonably be understood as threats under the totality of the circumstances, he concluded that existing Board precedent treats “quit if you’re unhappy” statements made in response to protected complaints as unlawful implied threats under Section 8(a)(1). The ALJ noted constitutional concerns with a per se approach but applied binding precedent.
The more consequential portion of the decision concerns the company’s confidentiality agreement. The agreement defined “Confidential Business Information” to include “employee records” and “salary and compensation information” and prohibited disclosure, with discipline up to discharge for violations.
The ALJ held that prohibiting discussion of salary and compensation is facially unlawful under longstanding Board precedent. He further applied the Board’s 2023 decision in Stericycle, Inc., 372 NLRB No. 113 (2023), which presumes a rule unlawful if an employee could reasonably interpret it to chill Section 7 rights. The ALJ concluded that the confidentiality agreement’s broad references to “methods of operation,” “business methods,” and related categories could reasonably be read to restrict discussions of working conditions. Because the employer did not demonstrate that the rule was narrowly tailored to serve a legitimate and substantial business interest, the ALJ found the rule unlawful under Stericycle.
On the discharge claim, however, the ALJ sided with the employer. Applying the Wright Line burden-shifting framework, 251 NLRB 1083 (1980), he assumed for purposes of analysis that the General Counsel had established protected activity and employer knowledge. Nonetheless, he found insufficient evidence of antiunion animus and, critically, no persuasive nexus between the protected activity and the termination.
The ALJ credited evidence that the termination was driven by Hoffman’s persistent refusal to acknowledge and commit to revised job expectations, documented concerns about his confrontational behavior, and management’s reasonable apprehension about his ability to work cooperatively under the new structure. Even if the General Counsel had met its initial burden, the ALJ concluded that the employer would have discharged Hoffman in any event for legitimate business reasons.
Looking Forward
For franchisors and multi-unit employers, the confidentiality ruling warrants immediate attention. Compensation confidentiality clauses—particularly those embedded in broader “confidential business information” agreements—are a recurring enforcement priority. Under Stericycle, even well-intentioned language can be deemed unlawful if it could reasonably chill employee discussions about wages or working conditions. Employers should review confidentiality provisions to ensure they do not prohibit or appear to prohibit Section 7 activity and should narrowly tailor any restrictions to demonstrable business interests such as trade secrets or customer data.
At the same time, the discharge portion of the decision provides a practical counterweight. The ALJ’s analysis illustrates that employers can prevail under Wright Line where legitimate, well-documented business reasons exist and where there is no credible evidence linking discipline to protected activity. The decision underscores the importance of contemporaneous documentation, consistent communication about job expectations, and neutral enforcement of performance standards.
It is also important to cabin the scope of this decision. This is an ALJ decision, not yet a final Board ruling, and the implied-threat analysis rests on established Board precedent rather than new doctrinal expansion. The holding does not create new joint employer standards or alter the fundamental framework governing employer discipline. Instead, it reinforces existing principles regarding confidentiality rules and the burden-shifting framework in discharge cases.
In short, while the decision reflects continued scrutiny of compensation-related confidentiality language, it also demonstrates that employers who act for legitimate operational reasons—and who can substantiate those reasons—remain well positioned to defend against unfair labor practice allegations.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Shareholder at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
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