Ozburn-Hessey Logistics, LLC v. NLRB, 18-2217

OHL is a third-party logistics employer whose Memphis workers voted for the United Steelworkers in 2011; OHL had a prior history of NLRA violations and post-election bargaining refusals.
On October 1, 2013 OHL issued a new attendance policy that reduced points for some "leaving early" infractions and kept progressive-discipline thresholds (termination at 13 points).
At an unspecified later date OHL implemented a separate "two-hour rule" (not written into the October 2013 policy, and not announced to the Union) that awarded 2 points if an employee left before working two hours.
Jermaine Brown received two 2-point infractions under the two-hour rule (July 28 and Oct 10, 2014), reached 13 points, and was discharged; he had repeatedly complained about those points.
The Union filed an NLRB charge; the ALJ found a unilateral October 2013 change but declined to treat the later two-hour rule as alleged or to find it caused Brown’s discharge.
The Board reversed in part: it found OHL unlawfully implemented the two-hour rule without notice or bargaining and that Brown’s discharge resulted from that unlawful rule; OHL petitioned for review and the court enforced the Board’s order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board could adjudicate an unpleaded "two-hour rule" change without violating due process	OHL: the two-hour rule was not alleged in the charge/complaint and thus adjudication violated due process (lack of notice and not tried)	Board/GC: the two-hour rule was closely connected to the pleaded October 2013 points-change, OHL received explicit pre-hearing notice by email and the issue was fully and fairly litigated at the hearing	Court: No due process violation — Pergament standard satisfied (adequate notice + fully and fairly litigated)
Causation — whether the two-hour rule caused Brown’s termination and requires reinstatement/backpay	OHL/ALJ: October 2013 change made the policy more favorable; Brown actually benefited overall, so the change did not cause his discharge	Board/GC: the two-hour rule was a later, independent, unannounced change; employees relied on the prior status quo and the two-hour rule produced the extra points that caused Brown’s firing	Court: The two-hour rule was an independent unlawful change that, but for its implementation, Brown would not have been terminated; reinstatement and make-whole relief affirmed

Pergament United Sales, 920 F.2d 130 (2d Cir. 1990) (Board may decide unpleaded unfair-practice when respondent had notice and issue was fully litigated)
NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938) (administrative proceedings need not follow a particular form; due process requires notice and opportunity to be heard)
Airgas USA, LLC v. NLRB, 916 F.3d 555 (6th Cir. 2019) (standard: substantial-evidence review of Board factual findings)
Independent Elec. Contractors of Hous., Inc. v. NLRB, 720 F.3d 543 (5th Cir. 2013) (discusses limits of applying Pergament on the merits)
Henry Bierce Co. v. NLRB, 23 F.3d 1101 (6th Cir. 1994) (procedural due process requires notice and opportunity to be heard)