Employers, particularly outward facing ones, can find external union protest activity in front of the business to be annoying.  The NLRB recently ruled that the employer cannot enlist employees to assist in countering such efforts.  In Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (June 25, 2012).pdf, the employer, an operator of grocery stores, was faced with continued union organizing activities at a Los Angeles area store.  The union presented a petition, allegedly signed by a majority of employees, stating that the union represented the employees.  The employer refused to recognize the union and, asserting its rights, stated it would not recognize the union without a government supervised, secret ballot election.  

Instead of filing a petition for an election, the union took to the streets and among other things handed out leaflets at the store entrance.  The leaflets implored customers to act:  “Tell Fresh & Easy: Let Your Workers Freely Choose a Union.”  Some customers were angry about the leaflets and complained to management.

The employer decided to counter the activity by distributing its own flyer, along with a $5 store coupon.  The employer’s flyer had five bullet points:

  • “The protestors are not our employees and have been hired by the …union” 
  • “The [union] wants [us] to unionize” 
  • “We’ve told the [union] this is a decision only our employees can make. They have not made this choice.”  
  • “We offer good pay as well as comprehensive, affordable benefits to all our employees.
  • “We take pride in being a great place to work”

The employer did what it always did when handing out coupons to customers, it instructed its employees to hand the flyer and coupon directly to customers. Two employees complained about having to hand out the flyer.

The union filed an unfair labor practice charge alleging that the employer’s requirement that employees hand out the flyer to customers interfered with employees’ protected activity in violation of Section 8(a)(1) of the Act.  The administrative law judge dismissed the allegation, concluding that the flyer was not an “anti-union” communication nor did it otherwise express an opinion on unionization.

The Board reversed, finding a violation.  The Board’s basis for finding a violation was a string of cases from the actual union campaign context where employees were required by the employer to make an “observable choice” on the issue of the union.  For example, when during an election campaign an employer hands out “vote no” t-shirts or hats, it puts the employee in the position of making a public pronouncement on the issue of the union.  It is a form of unlawful interrogation.

The Board’s application of these cases is an expansion of the precedent, to be sure.  The Board found that “employees reasonably would have perceived the flyer to be a component of [its] campaign against union representation.”  The Board found it significant that the flyer contained two “misleading” statements.  First, that the protestors were “not our” employees, when employees on occasion had handed out flyers for the union.  Second, that the employees had not chosen to unionize. Thus, the Board noted:

In fact, as stated above, a majority of employees had authorized the Union to represent them.  Although an employer has a right under the Act to decline voluntary recognition in favor of a Board election, Respondent’s statement in the flyer is misleading, at best.


The single most important fact of this case is that the union had presented a petition it claimed had a majority of employee signatures.  In such a case, either the union or the employer could have filed for a secret ballot election; neither did. The union’s failure to avail itself of the Board’s processes is curious and one wonders whether it truly felt it had a majority.  

That the Board considered a petition it never saw or otherwise evaluated a “choice” by employees makes this decision’s analysis somewhat contorted. The Board found a fact that was not in evidence.  The reason employers do not have to accept petitions and can insist on a government supervised election is because they don’t often know the circumstances under which the signatures were obtained.  What if the petition contained signatures that were forged?  What if it contained signatures of employees who had long since left the employer?  The Board’s assertion that the employer’s statement as “misleading” diminishes the employer’s right to insist upon an election.

This case might have a different outcome if it were not for this fact. If this was just a union handing out fliers at a non-union establishment with no evidence the employees were involved (a frequent occurrence), then it would seem doubtful the Board’s rationale would apply. But, one never knows. . .





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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.