Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—D.C. Cir.: ULP findings upheld against brewing company that suspended union president, declared impasse, (Sep 8, 2025)

By Jason Albright, J.D.

“The employer’s expansion plans hit a roadblock: its CBA with the Union.”

The NLRB did not err in finding that a Puerto Rico-based brewing and bottling company unlawfully retaliated against the president of the Unión Independiente de Trabajadores de Cervecería India, unlawfully changed a mandatory subject of bargaining while negotiations for a successor labor contract were ongoing and implemented a final offer on work schedules in the absence of a good-faith impasse, the D.C. Circuit held. The employer, which sought a steady output stream that it believed could be realized only via 24-7 production, unilaterally changed the employee work schedule within weeks of starting new contract negotiations. It later disrupted the negotiations by placing the union’s president on unpaid leave, and it declared impasse as a bargaining deadline—after which a 2018 contract’s unfavorable work schedule would go back into effect—approached. Judge Rao dissented (Compania Cervecera de Puerto Rico, Inc. v. NLRB, Nos. 24-1104 and 24-1187 (D.C. Cir. Sept. 5, 2025)).

Brewing and bottling company. The employer is a brewing and bottling company based in Puerto Rico. From its facility in Mayaguez, it ships beer to customers on the island and the U.S. mainland. The employer planned to further expand its sales outside of the island, and to do so, it sought a steady output stream that it believed could be supplied only by a facility that ran 24 hours a day, seven days a week.

Labor contract. Compania Cervecera’s expansion plans hit a “roadblock” in its labor contract. The employer has approximately 220 employees, and around 120 of them form a unit represented by the union. For more than 30 years, the employer and the union successfully negotiated successive labor contracts, and they last signed one in 2018.

Under the terms of the 2018 contract, bargaining-unit employees generally worked five days, 40 hours per week, and were not typically required to work on Saturdays or Sundays. That work schedule did not appear to allow the employer to keep its facility running continuously, and indeed, since 2018, the employer periodically hired temporary staff to fill gaps in its schedule when around-the-clock production was necessary.

Bargaining for successor contract. The negotiations for a successor contract offered the parties an opportunity to bargain for a new work schedule that could meet the employer’s expansion needs. The 2018 contract was set to last until September 2021, but the parties extended it to December 2021 and then to January 2022. The parties held their first bargaining meeting in July 2021 and later adopted negotiation rules. Early on in bargaining, the employer made clear that changing the work schedule was a priority.

Workweek change and ULP charge. Soon after the parties began bargaining, however, the employer tried to force its preferred work schedule on the union. Instead of negotiating a new schedule, Compania Cervecera sought to compel the bargaining unit’s employees to work six consecutive workdays, which its HR manager later conceded was contrary to Article 27 of the still-active 2018 labor contract.

The new schedule allowed the employer to meet the operational needs of its expansion plans, but it also deprived all union employees from guaranteed leave on weekends. The union pushed back and filed a charge with the NLRB, alleging that the company’s attempted imposition of an altered work schedule was an unfair labor practice.

Settlement agreement. Before the Board adjudicated that charge, the parties reached a settlement agreement in March 2022, under which the employer committed to compensate the impacted employees. In return, the union agreed to temporarily adopt, until June 30, 2022, the same six-day work schedule the employer had tried to impose on the employees.

Union president put on unpaid leave. Then, about a month after entering the settlement agreement, the employer placed the union president on an unpaid leave of absence. Under Article 34 of the 2018 contract, the union president—who is also a full-time employee—may annually take up to 200 work hours of paid leave for union business. At the time he was placed on leave, the union president had taken 203 hours. Article 34 provides, in relevant part, that “[s]hould there be a need for greater time,” the union president “shall request a prolonged leave without pay, no less than six months.”

The union president, however, did not indicate he needed additional leave for union matters and did not request prolonged leave before the employer placed him on unpaid leave. And in a prior contract year governed by the 2018 contract, the employer had not placed the union president on unpaid leave even though he exceeded the allotted 200 hours.

Work schedules and impending sunset of settlement agreement. By June 2022, the parties had not reached an agreement regarding work schedules. Under the terms of the settlement agreement, moreover, at the end of the month, the unit employees would return to the 2018 contract’s work schedule, which did not allow for continuous production.

Employer’s “final proposal.” On June 21, 2022, the employer submitted its “final proposal” on Article 27, an offer that would have required employees to forego guaranteed weekend leave.

Union’s counter. The union rejected the final offer and responded with a counterproposal, which preserved weekend leave for most employees and created a designated shift of weekend employees.

Employer’s impasse declaration. The company responded by informing the union that it believed they had reached an impasse on Article 27 and by urging the union to “accept the Company’s last, best[,] and final offer.”

Implementation of final offer. The union disagreed, emphasizing that it had shown interest in moving bargaining forward and calling on the employer to reconsider and resume negotiations. The employer then implemented its final offer on Article 27. That final offer allowed the company to operate its facility around the clock.

NLRB order on review. The union filed new charges against the employer with the Board, and following a three-day hearing, at which the employer’s HR manager testified, an ALJ determined that the employer had engaged in three unfair labor practices. First, by placing the union president on unpaid leave in retaliation for his protected union activities, the employer violated Sections 8(a)(1) and (3). Second, by placing him on unpaid leave in the absence of a request by him, the employer unilaterally changed the terms for union leave—a mandatory subject of bargaining—that it was required to preserve after the 2018 contract expired, in violation of Sections 8(a)(1) and (5). Finally, by implementing its final offer on work schedules without reaching an impasse, the employer violated Sections 8(a)(1) and (5). A three-member panel of the Board affirmed the ALJ’s findings, the employer then petitioned the D.C. Circuit for review, and the Board cross-applied for enforcement of its order.

Action against union president and discrimination. The D.C. Circuit first found that the Board did not err in finding that the employer’s decision to place the union president on unpaid leave was an adverse action motivated by anti-union animus. The appeals court found that the decision was an adverse action because it harmed his conditions of employment.

Turning to the Wright Line test, the D.C Circuit concluded that the Board correctly found that the union president was engaged in a protected activity and that the employer was aware of his engagement. He engaged in protected activity when he participated in bargaining for a successor labor contract and in negotiations over the settlement agreement addressing the employer’s attempted schedule change. And the successor contract negotiation rules as well as the settlement agreement informed the employer that the union president represented the union in the relevant negotiations.

The Board’s finding that the employer’s adverse action against him was motivated by anti-union animus was also supported by substantial evidence—specifically, the employer’s prior actions showing anti-union animus and the temporal proximity between the settlement agreement addressing those actions and the employer’s decision to place the union president on unpaid leave in the absence of a request for additional union hours.

Finally, even if the 2018 contract did authorize the employer’s actions, it was the employer’s burden to show not that it could have taken the same action pursuant to a contract, but that “it would have taken the same action in the absence of the unlawful motive.” Here, aside from arguing that Article 34 authorized its action, the employer offered no evidence that it would have placed the union president on leave if not for animus.

Mandatory subject of bargaining. The appeals court next found that the board had substantial evidence to find that the employer changed a mandatory subject of bargaining it was required to maintain after the 2018 contract expired when it placed the union president on unpaid leave and thereby departed from Article 34. By placing the union president on leave in 2022 without receiving a request for unpaid leave, the D.C. Circuit found, the employer not only departed from the Article 34’s plain text but also from its own prior implementation of that provision.

Impasse declaration and implementation of final offer. Finally, the D.C. Circuit found that substantial evidence supported the Board’s finding that the parties had neither reached a good-faith impasse over Article 27 nor encountered an overall breakdown in negotiations. From the onset of the negotiations, according to the appeals court, the parties recognized that Article 27 was going to be a critical issue. The union was aware that the employer needed to change the work schedule to accomplish its expansion plans. But rather than negotiate in good faith, the employer “undermined the Union’s bargaining position” over the work schedule. Within weeks of starting negotiations, according to testimony by its HR manager, the employer unilaterally changed the employee work schedule. The employer further disrupted the contract negotiations by later placing the union president on unpaid leave. And as the settlement agreement’s June 30 deadline approached, after which the 2018 contract’s unfavorable work schedule would go back into effect, the employer declared an impasse. It did so despite the union’s requests to keep negotiating.

The record also supported the Board’s finding that there was no overall breakdown in negotiations for a successor contract, according to the D.C. Circuit. On the very morning the employer implemented its final offer as to Article 27, in fact, the parties exchanged counterproposals on Articles 8 and 19, and the parties subsequently reached an agreement resolving provisions other than Article 27. Pursuant to their negotiated bargaining rules, the parties could have continued negotiating other contract provisions and then returned to any provisions—such as Article 27—over which a disagreement remained. Here, the employer simply did not meet its burden to show that “the asserted deadlock over [Article 27] inhibited progress on any other aspect of the negotiations.”

Dissent. In her dissent, Judge Rao argued that the Board “ignored the plain text of the collective bargaining agreement, penalized Cervecera’s reasonable exercise of contractual rights, and misapplied the standard for finding a bargaining impasse” in the case. “Nothing in the CBA,” she said, “suggests that Cervecera had an all-or-nothing choice under Article 34 to either fire the Union President in the middle of negotiations or to ignore his absences completely.” As to impasse, which she believed the parties had reached, Rao observed that “[t]he parties bargained over Article 27 for nine months, exchanging more than a dozen proposals with no meaningful progress.”

The case is Nos. 24-1104 and 24-1187.

Judge: Childs, J.

Attorneys: Giovanna P. Moreno-Lopez (Pietrantoni Mendez & Alvarez) for Compania Cervecera de Puerto Rico, Inc. Barbara A. Sheehy for the NLRB.

Companies: Compania Cervecera de Puerto Rico, Inc.

Cases: Labor UnfairLaborPractices Bargaining DistrictofColumbiaNews GCNNews