Preferred Building Services must cover fired janitors’ job-search costs

The employers fired several of the picketers. The Board found that Preferred and Ortiz, operating as joint employers, discharged the workers in retaliation for protected activity, in violation of the National Labor Relations Act. Because the two firms counted as joint employers, the lead contractor shared responsibility for the subcontractor’s conduct. According to the decision, the subcontractor’s founder demanded that two workers produce papers proving they were authorized to work in the United States, and warned others they would lose work over the picketing. 

Preferred challenged the findings. It argued the pickets were unlawful “secondary” activity – pressure aimed at neutral building tenants – and that a judge had wrongly kept out its evidence. The court disagreed on both counts. The Board had taken Preferred’s proffered evidence as true, including a later protest where demonstrators allegedly pushed into a lobby, and still found no unlawful purpose. The court also backed the Board’s finding that the pickets were not a bid to force union recognition. 

The expensive part is the remedy. The Board ordered the firms to compensate the workers for “any other direct or foreseeable pecuniary harms,” including “reasonable search-for-work and interim employment expenses,” on top of reinstatement and back pay. That broadened make-whole standard traces to the Board’s 2022 Thryv ruling. 

Preferred tried to fight the remedy but lost on procedure: it never properly raised the objection before the Board. Under the Act, courts will not hear objections a party did not press to the agency first. 

For HR and labor teams, the case shows that informal worker protests can be protected, that retaliation carries growing financial exposure, and that an objection not raised before the agency cannot be revived on appeal.