Fresh & Easy can’t force its employees to pass out fliers apologizing for pro-union protests
The National Labor Relations Board (“the Board”) ruled that Fresh & Easy (owned by Tesco PLC) violated the National Labor Relations Act (“the Act”) when it ordered employees at more than fifteen California Fresh & Easy grocery stores to hand out fliers, which included a $5 coupon, that apologized for pro-union protests that happened outside a Los Angeles store.
The Board said the fliers didn’t need to contain an explicit anti-union message to be unlawful. Instead, the Board said the problem with Fresh & Easy’s action was that the Act does not permit employers to require employees to make an observable choice to support, or oppose, a union.
The Board found Fresh & Easy’s flier was geared at generating community opposition to a union’s, the United Food and Commercial Worker’s, efforts to organize Fresh & Easy workers: “The flier champions the respondent as a ‘great’ employer, while making two misleading statements to place the union in a negative light … [E]mployees were not permitted to choose whether to express an opinion or remain silent; instead, they were ‘compelled to participate publicly in making the respondent’s statements criticizing the union’s handbilling and its organizing campaign.”
The Board determined that because employees could reasonably have perceived the flier they were required to personally hand out to customers as a component of Fresh & Easy’s counter-campaign against the union, that requirement coerced those employees in their choice of whether to participate in the debate concerning union representation.
The Board ordered Fresh & Easy to cease and desist from the wrongful activity and, at stores where the fliers were handed out, to post notices informing employees of their right to unionize.
The union’s attorney, David Rosenfeld, applauded the decision:
“My view is that [the decision] will make sure this conduct doesn’t occur in the future, because the Board is very clear that where employees think that material is either anti-union or pro-employer, they don’t have to pass it out or distribute it. It makes it the employees’ choice as to whether they think it’s anti-union, not the employer’s choice.”
The matter is Tesco PLC d/b/a Fresh & Easy Neighborhood Market Inc. and United Food and Commercial Workers International Union, cases 31-CA-029913, 31-CA-030021 and 31-CA-030088, at the National Labor Relations Board.
By Lisl Duncan