Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB: Employer unlawfully announced abrupt shutdown rather than recognize union, (May 29, 2026)

By Ronald Miller, J.D.

The employer’s Christmas bonuses were a bargainable term and condition of employment and the employer’s discontinuation of this tradition in 2022 without first notifying and bargaining with the union violated Section 8(a)(5).

The NLRB adopted an administrative law judge’s findings that an employer violated Section 8(a)(1) of the NLRA by (1) coercively interrogating employees about their union activity; (2) informing employees that it was closing because they selected the union as their bargaining representative; (3) informing employees that they would not receive a Christmas bonus because they selected the union; and (4) informing employees that they were terminated because they selected the union. Additionally, the Board adopted the ALJ’s findings that the employer violated Section 8(a)(3) and (1) by (1) withholding Thanksgiving and Christmas turkeys, hams, and rib roasts in order to discourage union support; (2) withholding Christmas bonuses from employees in order to discourage union support; and (3) terminating employees because they engaged in union organizing activities. Finally, the Board adopted the ALJ’s findings that the employer violated Section 8(a)(5) and (1) by (1) withholding Christmas bonuses from employees without notifying and bargaining with the union; (2) terminating 10 employees without notifying and bargaining with the union; (3) failing and refusing to recognize and bargain with the union for a first contract; (4) unlawfully withdrawing recognition from the union; and (5) refusing to furnish to the union relevant information (Atlantic American Fire Protection Co., Inc., 374 N.L.R.B. No. 114 (May 21, 2026)).

The employer is engaged in the installation, inspection, repair, and service of fire sprinkler systems throughout Illinois. During prime business years (2017 through 2019), the employer employed about 23 foremen, fitters, and apprentices.

Union organizing campaign. In early October 2022, a union organizer called and left messages for several employees, but none of them returned his calls. Then on October 25, an employee returned the organizer’s call. The employee worked as a foreman for the employer and was one of its most senior employees. They agreed to meet in person.

On October 29, four employees met with the organizer. They discussed rates of pay, career progression, and whether joining the union would lead to the employees organizing their workplace or leaving the employer for a union contractor. By the end of this meeting, all four employees signed union authorization cards.

On November 1, union officials met with seven of the employer’s employees, who signed union authorization cards. The employees also signed a petition addressed to the employer authorizing the union to represent them in collective bargaining negotiations.

On November 3, the union delivered copies of the petition, and signed authorization cards, and demanded that the employer recognize the union as the exclusive bargaining representative of all full-time and regular part-time journeymen and apprentices employed by the employer.

Having received no response from the employer to its demand for voluntary recognition, the union, on November 4, 2022, filed a representation petition with the Board seeking to represent foremen, journeymen, and apprentice pipe fitters. On December 6, the employees voted 10-1 in favor of union representation.

Section 8(a)(3) allegations. The record was replete with evidence of the employer’s anti-union animus. The employer stated that the employees had an election in its shop area, which it did not appreciate. In mid-November 2022, the foreman inquired as to whether the employees would be receiving free Thanksgiving turkeys or hams, which had become a tradition. The employer responded that it could not afford to continue the tradition that year.

In reference as to why the company did not give out turkeys or hams for Thanksgiving 2022, the company president said “I felt betrayed. I felt backstabbed.” Further, he characterized the workplace after the filing of the representation petition as a “cancer” and stated that “it was my job as the president to quell that insurrection and put that rebellion down.” Thus, the employer’s own testimony established his animus and retaliatory motive for discontinuing the company’s Thanksgiving turkey/ham tradition.

Accordingly, the ALJ concluded that the General Counsel established the employer discontinued its provision of Thanksgiving turkeys and hams due to the employees’ union organizing activities in violation of Section 8(a)(3).

Company debit cards. In late 2020, the employer gave the foreman a company debit card to purchase work materials from Home Depot as well as gasoline for his company vehicle. Similarly, in Spring of 2022, the employer had given another employee a company debit card to use to purchase gasoline and materials for the job. In November 2022, after the union organizing campaign, the employer asked for the return of the debit cards.

There was no direct record evidence linking the employer’s modification of the company debit card policy to employees’ protected union activities. Further, there was no evidence the employer denied employees permission to borrow the company debit card to purchase gasoline and work materials. Thus, the ALJ determined that relying on nothing more than the timing of the employer’s actions vis-à-vis the filing of the representation petition, the General Counsel failed to establish that the employer’s returning to the pre-2020 method for purchasing fuel and work materials was motivated by anti-union animus.

Christmas dinners. On December 13, 2022, the employer discontinued its practice of providing employees with a turkey, ham, or rib roast at Christmas without prior notice to the union and without affording the union an opportunity to bargain with respect to this conduct. The ALJ found that the employer had no obligation to bargain with the union over the cessation of the Christmas dinners because the Christmas hams and turkeys are properly characterized as a gift instead of a bargainable term and condition of employment.

It was undisputed that the employer provided employees with either a turkey, ham, or rib roast at Christmas and that it offered this gesture to all employees, related in no way to seniority, job performance, or hours worked, with no eligibility criteria other than being employed by the employer. Thus, the ALJ recommended dismissal of the complaint allegation.

Holiday bonus. On December 13, 2022, the employer discontinued its practice of providing employees with a holiday bonus without prior notice to the union and without affording the union an opportunity to bargain with respect to this conduct and the effects of this conduct.

In determining whether a bonus constitutes a term and condition of employment over which an employer must bargain, the Board considers both the regularity of the bonus and whether payment of the bonus was tied to employment-related factors. A holiday bonus is a mandatory subject if the employer’s conduct raises the employees’ reasonable expectation that the bonus will be paid.

The ALJ concluded that the employer violated Section 8(a)(5) by discontinuing its Christmas bonus tradition without first notifying and bargaining with the union. The Christmas bonuses had been paid out every year since at least 2011. The General Counsel carried its burden to establish that the employer’s Christmas bonuses were a bargainable term and condition of employment and the employer’s discontinuation of this tradition in 2022 without first notifying and bargaining with the union violated Section 8(a)(5).

Layoffs. On December 20, 2022, the employer terminated 10 employees without prior notice to the union and without affording the union an opportunity to bargain with respect to this conduct and the effects of this conduct. The employer indicated to the union that it was closing the entire business and all employees would be terminated or laid off. But the employer then only fired 10 employees, keeping the business open, and servicing its remaining customers. No specific department was closed, instead the employer slimmed down its operation considerably by weeding out all employees it believed voted for the union.

Where employees are represented by a union, an employer violates Section 8(a)(5) by making unilateral changes with respect to mandatory subjects of bargaining, absent bargaining to impasse. The layoff of bargaining unit employees constitutes a mandatory subject of bargaining.

It was undisputed that the employer did not provide the union with advanced notice of its layoff of the majority of the bargaining unit. And it was undisputed that the employer did not bargain with the union over this subject. Accordingly, the employer’s layoff of the majority of its bargaining unit employees violated Section 8(a)(5).

Refusal to bargain. Since January 6, 2023, the employer failed and refused to bargain over a first collective-bargaining agreement. Section 8(a)(5) and (d) of the Act required the employer to meet at reasonable times and bargain in good faith with the union regarding wages, hours, and other terms and conditions of employment of bargaining unit employees. The employer’s obligation to bargain commenced at the latest, on December 16, 2022, when the Region issued the certification of representative.

In this case, the union repeatedly requested to meet and bargain with the employer after its election victory. The parties met briefly in person on December 15, 2022, but very little of substance was discussed and no specific future bargaining dates were agreed to. When the union learned of the employer’s intention to terminate all employees and close the facility, it emailed the employer seeking to bargain over all negotiable aspects of the employer’s decision to terminate its operations as well as the effects of that decision.

No bargaining sessions were ever scheduled, and the parties held no formal bargaining session since the union was certified as the bargaining unit employees’ exclusive collective-bargaining representative.

Because it was without question that the union made numerous requests to bargain a first contract and the employer has refused to participate in first contract bargaining, the ALJ found that the employer failed and refused to bargain with the union in violation of Section 8(a)(5).

Withdrawal of recognition. About January 6, 2023, the employer withdrew its recognition of the union as the exclusive collective-bargaining representative of the unit. Here, it was clear that the employer unlawfully withdrew recognition from the union. Specifically, the employer terminated almost its entire workforce just days after the Region issued a certification of representative and informed the union that it was closing its doors.

The employer continued to perform bargaining unit sprinkler fitter work throughout 2023 and into early 2024. In doing so, the employer essentially pretended that the representation election had not occurred and that the union had no claim to the bargaining unit work its employees continued to perform. Accordingly, based on the employer’s words and actions, the evidence clearly showed that it had withdrawn recognition from the union in violation of Section 8(a)(5).

Refusal to furnish information. Since December 21, 2022, the employer has failed and refused to furnish the union with the information it requested. Information requested by the union, including bargaining unit contact information, employer handbooks, employee payroll records, benefit plan information, timesheets for bargaining unit employees, accrued vacation and other accrued benefits for bargaining unit employees was presumptively relevant.

Although the employer terminated almost all of its bargaining unit employees and informed the union that it was closing the business, the union knew that it still had several jobs in progress when the closure was abruptly announced, and the requested information would assist in the preparation of effects bargaining proposals. Thus, the relevance of the information should have been apparent to the employer under the circumstances and its refusal to provide the requested information violated Section 8(a)(5).

The slip opinion is 374 NLRB No. 114.

Attorneys: Elizabeth S. Cortez for General Counsel. Keith R. Bolek (O’Donoghue & O’Donoghue) for Sprinkler Fitters Local 281. Cynthia A. Sauter (Burdzinski & Partners) for Atlantic American Fire Protection Co., Inc.

Companies: Atlantic American Fire Protection Company, Inc.; Sprinkler Fitters Local 281

Cases: Labor OrganizingElections UnfairLaborPractices Discharge AgencyNews