United Food and Commercial Workers Local 7, AFL-CIO, 375 NLRB No. 55, 27-CA-298239 (Published Board Decision)
The Board found that a local union violated the NLRA in its dealings with the staff union representing its own employees, affirming most of an administrative law judge's findings while reversing one key conclusion about a car allowance reduction.
The case arose from a bitter relationship between United Food and Commercial Workers Local 7 and the Federation of Agents and International Representatives (FAIR), which represents Local 7's own staff. Following a contentious bargaining session in June 2022, Local 7 abruptly ordered its FAIR-represented employees to turn in their laptops, phones, keys, and credit cards within hours, citing fear of a possible strike. The Board agreed with the judge that this unilateral, discriminatory confiscation violated the law, rejecting Local 7's argument that it was simply protecting its property.
The Board also upheld findings that Local 7 unlawfully stopped following the contractual grievance procedure after the collective-bargaining agreement expired, insisted on a nonmandatory bargaining proposal (removing certain secretaries from the bargaining unit) as a condition of reaching a contract, and bargained in bad faith overall. Separately, the Board agreed that Local 7's president unlawfully told employees frustrated after a grueling strike that they should quit if they couldn't handle the job, unlawfully disparaged FAIR to employees, and unlawfully claimed the grievance procedure no longer existed.
Breaking from the judge, the Board found that Local 7 also violated the law by unilaterally cutting the in-town car allowance in 2022. The judge had found FAIR waived its right to bargain over the reduction based on years of past practice, but the Board disagreed, reasoning that the parties had never previously faced a decrease in the allowance, so the practice of accepting unilaterally calculated increases did not clearly establish that FAIR gave up its right to bargain over a decrease. The Board held that waiver cannot rest on such ambiguous evidence.
The Board upheld the dismissal of claims that Local 7 unlawfully interrogated and fired employee Elizabeth Wesley, agreeing she was a managerial employee, by virtue of her seat on Local 7's executive board, and therefore outside the Act's protections.
As remedies, the Board ordered backpay for the car allowance reduction and credit card-related expenses, reimbursement of FAIR's bargaining expenses incurred due to the bad-faith bargaining, and the standard cease-and-desist and bargaining orders, while declining to require that the notice be read aloud to employees.
Significant Cases Cited
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958): An employer may not condition agreement on mandatory bargaining subjects on the union's acceptance of a nonmandatory (permissive) proposal.
Smurfit-Stone Container Enterprises, 357 NLRB 1732 (2011): A party precludes good-faith bargaining when it insists on a nonmandatory proposal as the price of reaching an agreement.
MV Transportation, Inc., 368 NLRB No. 66 (2019): Established the "contract coverage" standard for determining whether a collective-bargaining agreement permits an employer's unilateral action.
Starbucks Corp., 373 NLRB No. 123 (2024): Employer statements suggesting that employees dissatisfied with working conditions should quit rather than pursue union activity are unlawful.
Johnson-Bateman Co., 295 NLRB 180 (1989): Waiver of a statutory bargaining right through bargaining history requires that the matter be fully discussed and consciously explored, with the union clearly and unmistakably yielding its interest.
American Tower Corporation, 375 NLRB No. 50, 13-CA-326591 (Published Board Decision)
The Board adopted an administrative law judge's findings that American Tower Corporation violated the NLRA by impliedly threatening employees with discharge for engaging in protected concerted activity and by maintaining a confidentiality agreement that barred employees from discussing their pay. The Board ordered the company to rescind or revise the agreement, cease the unlawful conduct, and post a notice to employees at its Schaumburg, Illinois facility.
The underlying dispute centered on Michael Hoffman, a longtime operational site lead who had pushed management for higher wages and lighter workloads and later told supervisors he might organize a union. After the company reorganized duties so that Hoffman would have to work directly with a construction manager he had clashed with years earlier, Hoffman resisted confirming he would cooperate, and the company fired him in August 2023. The General Counsel alleged the discharge itself violated the Act, but the judge found Hoffman had not shown the required link between his protected activity and the firing, concluding the company would have discharged him regardless because of his refusal to commit to working with the construction manager and prior complaints about his conduct. Neither the Board majority nor the General Counsel filed exceptions challenging that part of the ruling, so the Board did not revisit the discharge question on its merits, and the dismissal of that allegation stood.
Member Prouty dissented from the portion of the decision implicitly left undisturbed regarding the discharge, arguing that the record, including an admission by Hoffman's former supervisor that Hoffman was fired for union activity, the suspicious timing of the termination, and shifting explanations offered by the company, demonstrated that Hoffman was unlawfully discharged for his union and protected concerted activity.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by antiunion animus.
Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019): Held that evidence of animus must also establish a causal nexus between an employee's protected activity and the employer's adverse action.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Clarified that Tschiggfrie did not alter the General Counsel's evidentiary burden under Wright Line.
Stericycle, Inc., 372 NLRB No. 113 (2023): Set the framework for evaluating whether workplace rules unlawfully interfere with employees' Section 7 rights, including the employer's burden to justify such rules.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Recognized that an employer's free speech right to communicate with employees is constitutionally protected and cannot be infringed without justification.
S.R. Key Plumbing and Mechanical LLC, 375 NLRB No. 57, 10-CA-291436 (Published Board Decision)
The Board found that a plumbing contractor unlawfully refused to hire two union organizers but did not unlawfully discharge a third worker who had been caught up in a dispute over his union membership.
The case arose after the company, S.R. Key Plumbing and Mechanical, hired welder Jeffrey "Jace" Carr without knowing he was a union member. When the owner, Chet Key, learned of Carr's union ties, he told Carr in a series of phone calls that he could not work for the company while remaining associated with the union, and suggested Carr get written confirmation from the union that it was acceptable for him to keep the job. Carr never obtained that letter and left the jobsite, never returning. The Board majority (Chairman Murphy and Member Mayer) agreed with the administrative law judge that this did not amount to a constructive discharge, reasoning that Key never presented Carr with a "clear and unequivocal" choice between his job and his union membership, since Key left open the possibility that Carr could keep working there if the union signed off. The majority also found no evidence the company maintained a blanket rule barring union-affiliated workers, noting Key and a project manager framed the issue as the union's bylaws rather than company policy.
The Board did affirm findings that the company violated the NLRA by coercively questioning Carr about his union affiliation and threatening him with unspecified consequences for continuing to work there while keeping his union ties. It also upheld the finding that the company unlawfully refused to hire two other union organizers, Justin Johnson and Stephen Carey Tucker, when they applied during a period when the company had job openings, rejecting the company's argument that the two did not have a genuine interest in the jobs. The Board ordered the company to offer them employment, with backpay including compensation for job-search expenses regardless of interim earnings, consistent with its remedial approach in Thryv, Inc.
Member Prouty dissented in part, arguing that Carr was in fact constructively discharged. He wrote that Key's repeated statements, that he could not employ Carr while Carr remained a union member, created exactly the kind of illusory choice that the Board's precedent treats as an unlawful constructive discharge. Prouty also would have found that the company maintained an unlawful rule against hiring union-affiliated workers and would have imposed additional remedies, including a required compliance statement on job applications. He further urged the Board to overrule its decisions in Oil Capitol Sheet Metal and Toering Electric, which make it harder for union "salts" to recover full backpay and to prove discriminatory refusal-to-hire claims, arguing that organizers applying for jobs should be treated the same as any other job applicants under the NLRA.
Significant Cases Cited
NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995): Confirmed that paid or unpaid union organizers ("salts") are employees covered by the NLRA with full Section 7 rights.
Mercy Hospital, 366 NLRB No. 165 (2018): Held that a Hobson's choice constructive discharge requires conditioning continued employment on abandonment of Section 7 rights and a quit resulting from that condition.
Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007): Eliminated the presumption that backpay runs indefinitely for union salt discriminatees, requiring the General Counsel to prove how long they would have stayed employed.
Toering Electric Co., 351 NLRB 225 (2007): Placed the burden on the General Counsel to prove a salt applicant had a genuine interest in employment when the employer contests that interest.
FES, 331 NLRB 9 (2000): Set out the burden-shifting framework for proving discriminatory refusal to hire under the NLRA.
Beatrice Loving Heart and Healthcare Agency Inc., 375 NLRB No. 56, 05-CA-301128 (Published Board Decision)
The Board found that a Maryland home care agency unlawfully fired an employee after she raised group concerns about training costs and a wage increase during a Zoom meeting with company managers.
Kirah Powell worked as a support planner for Beatrice Loving Heart and Healthcare Agency for about two months before she was terminated in August 2022. Before her firing, she had complained to coworkers and managers that the company's training was inadequate given that employees were required to repay $2,500 if they left within a year, and she had asked about a six percent wage increase that home health aides in Maryland had received. During a Zoom meeting on the day of her discharge, a compliance director told her that if she was so unhappy, she should quit, and another manager cut off the meeting and ended up firing her that night, citing reasons including Medicaid fraud and insubordination that were not mentioned in earlier communications.
The Board agreed with the administrative law judge that Powell's complaints about training and repayment costs qualified as protected concerted activity because she was voicing a shared concern raised by multiple coworkers, not just her own individual gripe. Under the standard from Meyers Industries, an employee's activity counts as concerted when it reflects a group complaint, even without formal authorization to speak for others. The Board found that the company's shifting and inconsistent explanations for the firing were pretextual, which under the Wright Line framework defeated any claim that Powell would have been fired regardless of her protected activity. The Board also found that the suggestion she quit if unhappy amounted to an unlawful implied threat of discharge, consistent with the Board's reasoning in Starbucks Corp.
Departing from the judge, the Board also found that a manager's statement during the meeting, that Powell could not share her own Employment Security Agreement because doing so would violate HIPAA, unlawfully restrained her from discussing her terms of employment with others, since nothing in the statement limited its scope to just that meeting.
The Board ordered reinstatement and full back pay for Powell, along with compensation for related financial harms, and set aside a separate allegation about the company's confidentiality policy for further review.
Significant Cases Cited
Meyers Industries, 268 NLRB 493 (1984): An employee's activity is "concerted" when done with or on the authority of other employees, including bringing group complaints to management even without formal authorization to speak for the group.
Wright Line, 251 NLRB 1083 (1980): Establishes the burden-shifting framework for determining whether an employer's adverse action against an employee was motivated by protected activity.
Starbucks Corp., 373 NLRB No. 123 (2024): Holds that telling employees to quit or seek work elsewhere in response to protected activity is an implicit, unlawful threat of discharge.
Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Clarifies that activity satisfies the "mutual aid or protection" requirement when it seeks to improve terms and conditions of employment for a group of employees.
Golden State Foods Corp., 340 NLRB 382 (2003): Holds that when an employer's stated reasons for an adverse action are shown to be pretextual, the employer fails by definition to establish it would have taken the same action absent the protected conduct.
Fred Meyer Stores, Inc., a Subsidiary of the Kroger Company, 375 NLRB No. 53, 19-CA-272795 (Published Board Decision)
The Board affirmed an administrative law judge's findings that Fred Meyer Stores and Quality Food Centers, both subsidiaries of The Kroger Company, unlawfully failed to bargain with United Food and Commercial Workers Local No. 21 before changing employees' terms and conditions of employment during the summer of 2020. The case arose after employees at several Washington stores began wearing "Black Lives Matter" and "BLM" buttons and face masks following the killing of George Floyd, a show of support that intensified after the companies' parent, Kroger, publicly embraced the Black Lives Matter movement. When Fred Meyer managers first barred the insignia at one store, and both companies later extended the ban to buttons issued by the Union itself, several employees were sent home, or effectively sent home, for refusing to remove the items.
The Board agreed that this enforcement, along with QFC's unrelated rollout of a new mask policy tied to COVID-19 precautions, amounted to unilateral changes in working conditions imposed without giving the Union notice or a chance to bargain, violating Section 8(a)(5) and (1) of the NLRA. It found that both companies had a long history of tolerating employees' informal customization of their uniforms with buttons, including messages supporting political and social causes, which undercut any claim that enforcing a stricter "authorized insignia only" rule was simply business as usual. The Board noted that sending employees home without pay for noncompliance made the change plainly significant.
Rather than resolve broader free-speech questions about whether BLM messaging was independently protected activity under Section 8(a)(1), the Board found it unnecessary to reach those issues because the bargaining violation alone fully supported the remedy. It ordered the companies to rescind the unlawful changes, bargain with the Union before making similar changes in the future, make affected employees whole for lost wages and other financial harms (including tax consequences from lump-sum backpay), and expunge disciplinary references from personnel files for the employees involved.
Significant Cases Cited
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Employees have a protected right to wear union and related insignia at work, and employer rules restricting that display are presumptively invalid absent special circumstances.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Employee speech on political or social issues retains Section 7 protection for "mutual aid or protection" when it bears on employees' interests as employees, even if it also concerns broader societal issues.
Albertson's, Inc., 319 NLRB 93 (1995): An employer's belated enforcement of a dress code provision against "unauthorized" insignia, after years of tolerating a wide variety of buttons, constitutes an unlawful unilateral change requiring bargaining.
United Rentals, 350 NLRB 951 (2007): More stringent enforcement of an existing dress code policy, such as ending tolerance for certain informal attire, is a unilateral change subject to the duty to bargain.
Thryv, Inc., 372 NLRB No. 22 (2022): Establishes that backpay remedies should include compensation for direct or foreseeable pecuniary harms beyond traditional lost wages.