05/11/2026: Wage Discussions, Off-Duty Access, and Withholding Raises
Three ALJ decisions today.
Liberty Auto City, Inc., JD-30-26, 13-CA-330556 (ALJ Decision)
An administrative law judge found that a Libertyville, Illinois car dealership violated Section 8(a)(1) of the NLRA by threatening a salesperson for discussing wages with a coworker and then firing him three weeks later.
The case arose after salesperson Ryan Gannon explained the dealership’s pay and bonus structure to a newly hired colleague. The next day, Sales Manager Patrick O’Donnell confronted Gannon, told him he was not allowed to discuss pay with other employees, and threatened to cut his salary or fire him. Gannon immediately complained to HR, whose contemporaneous notes confirmed the threat. The dealership’s general manager acknowledged the threat was unlawful but took no formal disciplinary action against O’Donnell.
Three weeks later, Gannon was fired after picking up a vehicle in a dealer trade that turned out to have minor cosmetic defects a customer noticed during a test drive. The general manager claimed Gannon was fired for “insubordination” based on a brief phone call from a manager—without seeing the car, investigating the facts, or knowing the repair cost.
Applying Wright Line, the ALJ found the General Counsel met the initial burden: Gannon’s wage discussion was inherently concerted and protected, management knew of it, and animus was evident from the prior threat, the absence of any real discipline for O’Donnell, the tight timing, and the general manager’s characterization of Gannon as having a poor “attitude”—language the Board has long treated as a veiled reference to protected activity.
The burden then shifted to the dealership, which the ALJ found failed to carry it. The “insubordination” rationale was pretextual: Gannon had followed his instructions, reported what he found, and never refused an order. The dealership also treated him disparately—other salespersons who actually damaged vehicles were allowed to pay off deductibles over time without being fired. And the decision to fire Gannon was made instantly, by phone, with no investigation, strongly suggesting the vehicle incident was seized upon as a pretext.
The ALJ ordered reinstatement, backpay with interest compounded daily, and compensation for other direct or foreseeable pecuniary harms under Thryv, Inc.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for mixed-motive discharge cases under the NLRA.
Parexel International, 356 NLRB 516 (2011): Held that wage discussions among employees are at the core of Section 7 rights because wages are the essential subject matter of concerted activity.
Automatic Screw Products Co., 306 NLRB 1072 (1992): Held that prohibiting employees from discussing their wages violates Section 8(a)(1).
Thryv, Inc., 372 NLRB No. 22 (2022): Expanded the Board’s make-whole remedy to include compensation for direct or foreseeable pecuniary harms beyond lost wages.
American Freightways Co., 124 NLRB 146 (1959): Established the standard for Section 8(a)(1) violations as conduct that would reasonably tend to interfere with employees’ free exercise of Section 7 rights.
Kroger Fulfillment Network, JD-28-26, 09-CA-353140 (ALJ Decision)
An ALJ found that Kroger Fulfillment Network violated Section 8(a)(1) of the NLRA by maintaining an overbroad employee handbook policy and by twice invoking it to stop a union organizer from leafleting outside its Louisville, Kentucky facility. The ALJ dismissed the remaining allegations — interrogation, surveillance, a discriminatory application of the no-solicitation rule during work time, and a captive-audience meeting — finding them either legally or factually unsupported.
The violations centered on Kroger’s “Parking” policy, which stated that the prohibition against solicitation applied throughout the parking lot and barred off-duty employees from the premises entirely, with narrow exceptions. The ALJ found the solicitation provision overbroad because it contained no clear limitation to working time, and under settled Board law, any ambiguity in such a policy is construed against the employer. Kroger argued the Parking policy incorporated by reference a separate Solicitation and Distribution Statement that restricted the ban to working time, but the ALJ rejected that reading as insufficiently explicit. Applying Tri-County Medical Center, the ALJ further found the off-duty access ban unlawful because it swept in non-working areas — including the parking lot and sidewalk — without a legitimate business justification. The Respondent’s safety and shared-tenancy rationale was deemed speculative, with no record evidence of actual accidents or complaints from the co-tenant.
The policy violations were not only facial but applied in practice: HR manager Chloie Reynolds twice approached employee Katherine Applegate while she was off the clock and handing out union flyers outside the main entrance, and each time cited the Parking policy. That the same policy was used to restrict off-clock activity confirmed the ALJ’s conclusion that it was not reasonably understood to permit solicitation during non-working time.
The ALJ dismissed allegations that Reynolds unlawfully interrogated or prohibited employee Christopher Minton from discussing the union during working time. Reynolds reminded Minton of the no-solicitation policy after receiving complaints that he was soliciting trainees during on-road training. The ALJ credited Reynolds’ account of those conversations and relied on Wynn Las Vegas, LLC — which broadened the definition of “solicitation” to include working-time conversations intended to persuade coworkers to support the union — to reject the General Counsel’s contention that merely discussing the union was being prohibited.
The captive-audience allegation failed because the ALJ found the pre-shift “huddles” at issue were voluntary. Employees had a five-minute grace period before their shifts began, and the huddles occurred during that window, meaning attendance could not reasonably be viewed as compelled. The surveillance allegations were dismissed on the facts: the ALJ discredited Applegate’s testimony about the October 10 incident entirely, and found Supervisor Mosley’s brief presence outside the entrance on October 15 — where he routinely spent time smoking and taking calls — was not out of the ordinary and not coercive.
The ALJ ordered Kroger to rescind the unlawful provisions of the Parking policy and revise its Employee Handbook accordingly.
Significant Cases Cited
Tri-County Medical Center, 222 NLRB 1089 (1976): Established the three-part test for evaluating employer policies that bar off-duty employee access to company premises.
Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020): Broadened the definition of “solicitation” to include working-time conversations intended to persuade coworkers to support a union, overruling narrower prior precedent.
Amazon.com Services LLC, 373 NLRB No. 136 (2024): Overruled Babcock & Wilcox and held that employers violate Section 8(a)(1) by compelling employees to attend meetings where the employer expresses views on unionization.
Rossmore House, 269 NLRB 1176 (1984): Set out the totality-of-the-circumstances test for determining whether employer questioning of employees constitutes unlawful interrogation.
Meijer, Inc., 344 NLRB 916 (2005): Held that parking lots and sidewalks do not qualify as “working areas” unless integral — not merely incidental — to the employer’s primary business.
United Parcel Service, JD-31-26, 09-CA-342136 (ALJ Decision)
An ALJ ruled that UPS violated the NLRA when it withheld planned wage increases from approximately 49 employees at its Louisville “Worldport” facility after those employees sought union representation from Teamsters Local 89.
UPS had completed a companywide wage review — the “2023 Air Region Career Architecture initiative” — and announced to employees that pay adjustments were coming. When the Teamsters demanded recognition in November 2023, UPS filed representation petitions rather than voluntarily recognize the union, as required under Cemex Construction Materials Pacific, LLC (which mandates prompt petition-filing or else the employer must recognize the union outright). Filing the petitions triggered a “critical period” during which, under General Shoe Corp., laboratory conditions for free employee choice must be preserved.
The problem for UPS was that it then notified employees in the two new bargaining units — but not others company-wide — that they would not be receiving the already-announced raises. A manager named Barbiea reportedly told employees the raises were being withheld because giving them would be “considered a bribe” to keep out the union. Supervisors also read a scripted statement explaining that changing wages before an election “may” constitute a violation of law, but neither the script nor Barbiea’s remarks included the critical assurance that employees would receive the raises after the election regardless of the outcome.
That omission was the crux of the case. Under the “safe harbor” doctrine established in Uarco Inc. and clarified in Ansul Inc., an employer may lawfully postpone a planned wage increase during the critical period only if it clearly communicates two things: that the sole reason for the delay is to avoid the appearance of election interference, and that employees will receive the adjustment no matter how the election turns out. UPS communicated only the first part.
The ALJ declined to apply the Wright Line burden-shifting framework, finding it ill-suited where the employer’s motive is singular and undisputed. Instead, the ALJ applied the NLRB v. Great Dane Trailers “inherent destructiveness” analysis, under which disparate treatment of employees based on union activity violates Sections 8(a)(1) and 8(a)(3) even without evidence of overt hostility. The ALJ noted there was no ill will toward the union — UPS ultimately recognized the Teamsters via card check and signed a collective bargaining agreement — but intent to treat employees differently because of their union activity was nonetheless established.
UPS was ordered to make whole the affected employees for lost wages from the date other employees received raises under the initiative through the date their wages were governed by the negotiated National Master Agreement addendum.
Significant Cases Cited
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established that an employer must either recognize a union upon majority card showing or promptly file an RM petition, and that committing an unfair labor practice requiring an election to be set aside results in a remedial bargaining order.
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967): Supreme Court held that certain employer conduct disparately affecting union employees is inherently destructive of NLRA rights, permitting an inference of unlawful motive from the conduct itself.
Ansul Inc., 329 NLRB 935 (1999): Defined the “safe harbor” standard permitting an employer to postpone a wage increase during a critical period, requiring explicit assurance that the increase will be granted after the election regardless of outcome.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for Section 8(a)(3) cases, requiring the General Counsel to prove union activity, employer knowledge, and animus before the burden shifts to the employer to show it would have acted the same way regardless.
General Shoe Corp., 77 NLRB 124 (1948): Established the “laboratory conditions” doctrine requiring that representation elections be conducted in an environment free from employer or union interference with employees’ free choice.