In Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., a recent 2-1 decision, the Board ruled that a grocery store violated Section 8(a)(1) of the Act when it required its employees to distribute $5 store coupons to customers with an apology for union protest activity near its front entrance and information countering the union’s claims. In reaching its conclusion, the Board applied precedent from the union election context to the organizing scenario at issue in the case.

The issues in the case arose when the union presented the employer, an operator of a chain of grocery stores, with a petition allegedly signed by a majority of employees, stating that the employees wanted to be recognized by the union. The employer declined to voluntarily recognize the union.

The union did not file a petition for a secret ballot election. Rather, the union began distributing leaflets near the employer’s front entrance stating, in part, “[d]espite repeated requests from workers, Fresh & Easy has never recognized a union of their workers – instead choosing to fight their employees as they try to form a union.” Customers were upset by the union protest activity and complained to store management.

In response, the employer prepared a customer flyer that contained a $5 store coupon and read, in part:

• The protesters are not our employees and have been hired by the United Food & Commercial Workers (UFCW) union.
• The UFCW wants fresh&easy [sic] to unionize.
• We’ve told the UFCW 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.

Employees were instructed to personally hand the coupons to customers or stick them in the customers’ bags, as they did with other store flyers. Two employees complained about having to distribute the flyer, one of whom claimed the flyer was “lying to customers.” The union filed an unfair labor practice charge, alleging that the employer violated Section 8(a)(1) of the Act by requiring that employees distribute the coupon flyer to customers.

The ALJ analyzed the language in the coupon flyer, determined that it “did not express a position on unionization” and dismissed the allegation. The Board disagreed and ruled that the company’s actions violated Section 8(a)(1) because “employees reasonably would have perceived the flyer to be a component of the [employer’s] campaign against union representation.” The Board also noted that two employees protested distributing the coupon flyer, which confirmed the Board’s conclusion that it was campaign material. In addition, the Board found that the flyer contained misrepresentations, most notably the statement that employees had not chosen to unionize. The Board concluded that the petition allegedly signed by a majority of employees was evidence ipso facto that employees had authorized the union to represent them. 

In the representation election context, conditions are closely monitored to prohibit interference with the employees’ free and uncoerced choice in the election. Here, the union did not choose to file any petition for an election but, instead, presented a petition allegedly bearing the signatures of a majority of employees. Nonetheless, the Board based its conclusion, in part, upon representation election cases, including: 2 Sisters Food Group, 357 NLRB No. 168, slip op. at 3-4 (2011) (employee distribution of t-shirts and hats with company logo on election day violated Section 8(a)(1)); and R.L. White Co., 262 NLRB 575, 588-89 (1982) (employer violated Section 8(a)(1) of the Act by distributing and encouraging employees, in a coercive manner, to wear pro-employer t-shirts the day before election). Going forward, questions remain about the weight the Board may give union recognition petitions allegedly signed by a majority of employees in assessing alleged Section 8(a)(1) violations.