A Day in the (Work) Life

NLRB Finds That Bargaining Proposals Alone Do Not Qualify as Unlawful Threats. The dispute in Inland Waters Pollution Control, Inc., 375 NLRB No. 15 (July 29, 2026), began when the employer proposed during contract negotiations to amend the grievance procedure to permit discipline or discharge of employees who filed “baseless, malicious, or harassing grievances.” The employer’s representatives also complained that the union’s grievance activity had become “totally out of hand,” characterized the union’s “excessive amount of grievances” as “a problem,” and urged the union to reduce the number of “b**** grievances” being filed. The administrative law judge (ALJ) found that both the proposal and the accompanying remarks violated Section 8(a)(1), reasoning that employees could reasonably view them as discouraging the filing of contractual grievances. The ALJ noted that the employer’s representatives had offered no examples or context to narrow or clarify their statements. The NLRB disagreed and reversed. In its view, Board precedent does not support finding an unfair labor practice based solely on presenting a bargaining proposal at the negotiating table. The majority also treated the challenged remarks as permissible explanations of the employer’s bargaining position, not unlawful threats. It emphasized the NLRA’s protection of “uninhibited, robust, and wide-open debate in labor disputes” and distinguished earlier cases involving explicit threats of retaliation or bad faith bargaining from statements made to support a bargaining proposal.

Fifth Circuit Vacates OSHA Rule on Recording Work-Related Mental Illnesses. In Exxon Mobil Corp. v. Occupational Safety & Health Review Commission, No. 25-60108 (5th Cir. July 21, 2026), the Fifth Circuit considered whether Section 8 of the Occupational Safety and Health Act, 29 U.S.C. § 657(c)(2), authorizes OSHA to require employers to record employees’ work-related mental illnesses. The dispute grew out of a December 2021 explosion and fire at the employer’s Baytown, Texas, refinery. After the incident, an employee who had volunteered to enter the burning unit as part of the emergency response effort was diagnosed with PTSD by several healthcare providers. The employer declined to record the diagnosis in its OSHA 300 and 301 logs, relying instead on an evaluation by a provider it retained, who concluded that the employee did not suffer from work-related PTSD. OSHA cited the employer for violating its recordkeeping requirements and assessed a penalty. The Fifth Circuit held that the term “illnesses” in § 657(c)(2) is best understood as referring only to physical illnesses. The court pointed to the statutory context: Surrounding provisions reference concepts such as “first aid,” “loss of consciousness,” and restrictions on “work or motion,” all of which point to physical conditions. Contemporaneous dictionary definitions also supported the court’s reading but did not clearly encompass nonphysical disorders. OSHA’s reliance on the act’s broad remedial purpose and legislative history did not persuade the court. A general goal of promoting safe and healthful workplaces, the court reasoned, cannot expand the specific authority Congress granted in § 657(c)(2). The Fifth Circuit therefore granted the employer’s petition for review, vacated OSHA’s regulation requiring the recording of work-related mental illnesses, 29 C.F.R. § 1904.5(b)(2)(ix), and set aside the citation and associated penalty.

Fifth Circuit Questions McDonnell Douglas Framework in Employment Cases. In Holloway v. Procter & Gamble Manufacturing Co., No. 25-30556 (5th Cir. Aug. 3, 2026), the Fifth Circuit affirmed summary judgment against Brandon Holloway on his race discrimination, retaliation, and Louisiana whistleblower claims tied to his December 2022 termination. Internal audits had found repeated violations of the employer’s procurement policies and improper use of a corporate credit card so the employer terminated Holloway. Under the McDonnell Douglas framework, the court held that Holloway had not raised a fact issue as to pretext. It reached the same conclusion on retaliation: Timing alone was insufficient to establish causation, particularly because an additional policy violation was discovered shortly before the termination decision. The whistleblower claim failed for a different reason: Holloway did not show an actual violation of law. The statutes he relied upon did not support his contention that another employee’s execution of transportation documents amounted to falsification. Normally, this type of opinion would not generate much reaction. The concurrence is worth a closer look. Although the panel applied McDonnell Douglas, Judge Ho, joined by Chief Judge Elrod, wrote separately to question the framework’s continued use. Echoing concerns raised by Justice Clarence Thomas in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), Ho argued that McDonnell Douglas lacks a basis in the text of Title VII and has evolved far beyond its original purpose. He criticized its use at the summary judgment stage, noting that the framework was developed for bench trials and, in his view, improperly requires plaintiffs to prove too much before reaching trial. He also argued that the pretext inquiry sits uneasily with Title VII’s motivating-factor provision, which permits liability when discrimination is one motivating factor among others, even if legitimate reasons also played a role in the employment decision. Citing Thomas’s observation that lower courts are free to proceed without the McDonnell Douglas framework, Ho expressed a willingness to reconsider existing circuit precedent and move toward an approach grounded more directly in the text of Title VII and Rule 56.

Random Beatles Fact: Frank Sinatra called the song “Something” one of the best love songs ever written. Sinatra famously covered “Something,” and during his live performances, he initially introduced it as his favorite Lennon-McCartney song. The problem? John Lennon and Paul McCartney did not write “Something”—George Harrison did. Recorded during The Beatles’ Abbey Road sessions (the last album recorded by the band), “Something” was the first Harrison song that The Beatles released as an A-side.

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