April 23, 2026|Franchise Frontlines
April 23, 2026 | NLRB Division of Judges | Administrative Law Judge Decision
Executive Summary
In an Administrative Law Judge decision, Judge Mara-Louise Anzalone of the National Labor Relations Board Division of Judges held that Townsend Controls & Electric LLC violated Section 8(a)(1) of the National Labor Relations Act by discharging an electrician who raised repeated safety complaints on a multi-contractor jobsite. The General Counsel argued that the employee engaged in protected concerted activity by raising safety concerns on behalf of his crew and invoking Weingarten rights. The employer contended that it discharged the employee for misconduct, including alleged physical altercation and insubordination. The court concluded that the employee’s conduct was protected, that the alleged misconduct occurred in the course of that protected activity, and that the employer failed to prove the misconduct actually occurred. Applying the Burnup & Sims standard, the court found the discharge unlawful, while declining to find a separate violation based on union-related activity.
Relevant Background
The case arose from work performed by Townsend Controls & Electric LLC on a large industrial construction project involving multiple contractors operating in confined spaces. The charging party, a journeyman electrician with significant experience and union affiliation, was dispatched to the site and assigned to work alongside other trades, including pipefitters and specialty contractors.
From the outset of his assignment, the employee raised concerns about safety conditions, including tripping hazards, defective equipment, missing inspection documentation, and the risks associated with multiple trades working simultaneously in tight quarters. These concerns were discussed among the electrical crew and raised with management during routine safety meetings and throughout the workday.
Tensions escalated when the employee challenged both a general contractor’s supervisor and his own supervisors regarding safety practices. On the day of his discharge, the employee objected to what he perceived as unsafe “trade stacking” conditions, requested safety documentation related to chemicals being used nearby, and sought to limit overlapping work in confined areas. Later that same day, he was accused of engaging in a physical altercation with another contractor’s employees and was called into a meeting with management. Within minutes of that meeting, the employer terminated his employment, citing “physical and verbal abuse.”
The employee denied engaging in any physical misconduct and asserted that the termination was in retaliation for his safety complaints and protected activity.
Decision
The court first addressed whether the employee’s conduct constituted protected concerted activity. It concluded that the employee’s repeated safety complaints—raised both individually and as a continuation of group discussions among the crew—fell squarely within Section 7 protections. The court emphasized that workplace safety concerns affecting multiple employees qualify as matters of mutual aid or protection and that even a single employee’s actions may be deemed concerted when they arise from group concerns.
The court rejected the employer’s argument that the employee’s conduct was merely personal or de minimis. It noted that the safety issues raised—including defective equipment, missing safety documentation, and hazardous working conditions—were significant and directly related to employee welfare. The court further found that the employee did not lose the Act’s protection by using strong language or engaging in heated exchanges, particularly in the context of a construction site where such interactions are not uncommon.
The central legal issue turned on the appropriate analytical framework. Rather than applying the traditional Wright Line burden-shifting test, the court applied the Supreme Court’s Burnup & Sims standard. That framework governs situations where an employer disciplines an employee for alleged misconduct occurring during otherwise protected activity. Under Burnup & Sims, an employer’s good-faith belief in misconduct is insufficient; the employer must establish that the misconduct actually occurred.
Applying that standard, the court found that the employer failed to meet its burden. The evidence supporting the alleged physical altercation consisted largely of hearsay statements that were not corroborated at hearing. The employer did not call key witnesses to testify, nor did it conduct a thorough investigation before making the termination decision. The court found the employee’s denial of physical misconduct credible and concluded that the alleged conduct did not occur.
The court also identified significant inconsistencies in the employer’s explanation for the termination. Testimony suggested that the decision to discharge the employee may have been made before the investigation was completed, and the employer’s witnesses offered conflicting accounts regarding the basis for the decision. These deficiencies further undermined the employer’s position.
Because the alleged misconduct occurred in the course of protected activity and was not proven, the court held that the discharge violated Section 8(a)(1). The court declined, however, to find a separate violation under Section 8(a)(3), concluding that the General Counsel did not establish that the decisionmakers were aware of the employee’s intent to involve the union.
Looking Forward
This decision highlights the legal risks associated with disciplining employees for conduct that arises in the context of workplace safety complaints or other protected activity. For franchisors and other multi-unit operators, the case is particularly relevant in environments where operations involve multiple entities, overlapping responsibilities, and shared workspaces.
The court’s application of the Burnup & Sims framework underscores that, in certain circumstances, an employer’s reliance on a good-faith belief in misconduct may not be sufficient to defend a disciplinary decision. Where alleged misconduct is intertwined with protected activity, the employer may be required to establish that the misconduct actually occurred. This distinction can materially affect litigation outcomes, particularly where investigations are incomplete or rely on unverified accounts.
The decision also illustrates the importance of consistent and well-documented decision-making processes. Discrepancies in witness testimony, unclear timelines, and failure to interview key witnesses can create significant challenges in defending employment decisions. Careful investigation and documentation remain critical, especially where discipline follows closely on the heels of employee complaints.
For franchisors, the broader takeaway lies in the operational realities of multi-party worksites. Safety complaints often arise in environments where brand standards, contractor coordination, and site management intersect. While franchisors may not directly employ workers in these settings, the structure and oversight of operations can influence how such disputes develop and are perceived. This case illustrates how issues originating at the jobsite level can evolve into broader legal exposure when not addressed with care.
Ultimately, this decision reinforces that employee complaints about workplace conditions—particularly safety—are likely to receive robust protection. Employers navigating those situations should ensure that any disciplinary action is grounded in clear, well-supported findings and is not vulnerable to being viewed as a response to protected activity.
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 Partner 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.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
