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In a recent 2-1 decision, the National Labor Relations Board ruled that a grocery store violated Section 8(a)(1) of the National Labor Relations 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鈥檚 claims.

The issues in the case arose when a union presented Fresh & Easy, 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 represented by the union. The employer declined to voluntarily recognize the union.

Rather than file a petition for a secret ballot election with the NLRB, the union began distributing leaflets near the employer鈥檚 front entrance stating, in part, 鈥渄espite repeated requests from workers, Fresh & Easy has never recognized a union of their workers 鈥� instead choosing to fight their employees as they try to form a union.鈥�

Customers were upset by the union protest activity and complained to store management. In response, the employer prepared a customer flier that contained a $5 store coupon and read, in part:

• The protesters are not our employees and have been hired by the United Food and Commercial Workers union.
• The UFCW wants Fresh & Easy to unionize.
• We鈥檝e 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鈥� bags, as they did with other store fliers. Two employees complained about the requirement to distribute the flier; one claimed it was 鈥渓ying to customers.鈥�

The union filed an unfair labor practice charge, alleging that the employer violated Section 8(a)(1) of the NLRA by requiring that employees distribute the coupon flier to customers.

In analyzing the language in the coupon flier, an administrative law judge determined that it 鈥渄id not express a position on unionization鈥� and dismissed the allegation. On review, the board disagreed and ruled that the company鈥檚 actions violated Section 8(a)(1) because 鈥渆mployees reasonably would have perceived the flier to be a component of the (employer鈥檚) campaign against union representation.鈥�

The board also noted that two employees protested distributing the coupon flier, which confirmed the board鈥檚 conclusion that it was campaign material. In addition, the board found that the flier 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 that employees had authorized the union to represent them.

In the representation election context, conditions are closely monitored to prohibit interference with the employees鈥� free and uncoerced choice in an election run by the NLRB. In this case, the union chose not to file any petition for an election, but instead presented the employer with a petition allegedly bearing the signatures of a majority of employees. Nonetheless, the board based its conclusion, in part, upon representation election cases.

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.

OSHA issues final whistleblower rule under CPSIA

The Occupational Safety and Health Administration has issued a final rule implementing the whistleblower provisions of the Consumer Product Safety Improvement Act of 2008. OSHA is charged with enforcing the whistleblower provisions in 22 separate statutes, including CPSIA.

Section 219 of CPSIA prevents manufacturers, private labelers, distributors and retailers from firing or otherwise discriminating against an employee who provides information to the employer or federal or state government relating to the employer鈥檚 violation (or perceived violation) of CPSIA. The employee is also afforded the same protections if he or she testifies in a proceeding regarding the violation, assists in such a proceeding, or objects or refuses to participate in an activity that he or she reasonably believes would violate CPSIA.

As discussed in the summary of the final rule, published in the July 10 edition of the Federal Register, the final regulations establish the procedures and time frames for handling retaliation complaints under CPSIA.

House passes bill that repeals Affordable Care Act

On July 11, in response to the recent Supreme Court decision upholding the constitutionality of the Patient Protection and Affordable Care Act, the House of Representatives voted to repeal 鈥淥bamacare.鈥�

The bill (H.R. 6079), which would rescind the health care provisions in the PPACA and the accompanying Health Care and Education Reconciliation Act of 2010, was largely symbolic because it is unlikely to be considered or approved by the Democratically-controlled Senate, and would face a certain presidential veto if it were to advance that far.

In January 2011, the House passed a similar bill that would have repealed the ACA in its entirety. That bill (H.R. 2) was never considered by the Senate, although an unsuccessful attempt was made in February 2011 to include its text as an amendment to a Federal Aviation Administration reauthorization bill.

Howard Rubin is a shareholder in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].

Don Stait is Special Counsel in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].