Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer’s bargaining proposal was not unlawful threat to punish baseless grievances, (Jul 30, 2026)

By Ronald Miller, J.D.

The act of making a bargaining proposal at the bargaining table does not constitute an unlawful threat under Section 8(a)(1).

A divided three-member panel of the NLRB reversed an administrative law judge’s finding that an employer violated Section 8(a)(1) of the Act by allegedly threatening to discipline or discharge employees for filing or pursuing grievances. The Board observed that neither the ALJ nor any party cited a case in which it has found that the act of making a bargaining proposal at the bargaining table constitutes an unlawful threat under Section 8(a)(1). Accordingly, the Board declined to expand Board law and to find that the employer’s bargaining proposal independently violated Section 8(a)(1). On the other hand, the Board agreed with the ALJ that the employer violated Section 8(a)(3) and (1) by discharging two employees for engaging in union and other protected concerted activities. Member Prouty dissented in part (Inland Waters Pollution Control, Inc., 375 N.L.R.B. No. 15 (July 29, 2026)).

The employer repairs and rehabilitates underground sewer lines from its Detroit facility. The union represents about 70 full-time hourly employees, including crew leaders. The most recent bargaining agreement is dated October 1,2017, through September 30, 2020. Unit employees often work underground and in confined spaces cleaning pipes and installing heavy cloth liners.

Employee handbook. Unit employees are covered by an employee handbook and uniform rules and regulations. The rules state harassment of an employer, employee or customer, or any other act that could contribute to the creation of a hostile work environment, is grounds for immediate termination. The social media policy prohibits postings that include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct, which may result indiscipline up to and including termination.

Union steward. In February 2020, an employee became the union steward. In August, he was promoted to chief steward. From all accounts, he was active in both roles, particularly in filing grievances. The employer’s facility manager estimated that there was a 20—25 percent increase in grievances once the employee became a steward.

In December 2020, the employer and the union began negotiations over a successor collective-bargaining agreement. Early in negotiations, the employer proposed adding language to the CBA giving it the discretion to discipline or discharge employees for filing “baseless, malicious, or harassing” grievances. During a negotiation session, the employer’s attorney told the union ‘s chief steward that his “excessive” grievance filing was “a problem” and to cut down on the “bullshit” grievances. The employer eventually withdrew its proposal.

Employee strike. In March 2021, the employer submitted its final contract offer to the union. On April 25, the unit employees voted to reject that offer and to go out on strike. The following day, a group of unit employees began picketing outside the gates to the employer’s facility. That same day, April 26, the employer sent the striking employees a letter threatening to replace them if they did not report for work the following day.

Discharges. During the strike, the chief steward, who is African American, sent a private text to a group of unit employees that included memes mocking the plant’s operations manager, who is Caucasian. On April 30, the employer discharged the employee, stating that the text violated the company’s policies against racially offensive and harassing behavior.

On May 5, the employer sent a letter informing a second employee that he was being “permanently replaced” in accordance with the company’s April 26 letter. The employee had been off work since March 2020. He was initially granted consecutive leaves of absence. When his leave expired in September 2020, the employer notified the employee that he either needed to return to work, extend his medical leave, or resign. The employee never returned to work. For the next 7 months, he unsuccessfully attempted to extend his medical leave and later to apply for disability benefits. The employer contended that it did not discover that the employee had not been formally discharged until after he participated in the strike.

The General Counsel’s complaint alleged that the employer discharged the two employees because they assisted the union and engaged in concerted activities, and to discourage employees from engaging in these activities, in violation of Section 8(a)(1) and (3). The complaint further alleged that the employer violated Section 8(a)(1) when it threatened to discipline or discharge employees for their grievance filing activities. Specifically, the General Counsel alleged that the employer, through its attorney, threatened to discipline or discharge employees for filing grievances.

Section 8(a)(1) violation. The employer proposed adding language giving itself discretion to discipline or discharge employees for “levying baseless, malicious or harassing grievances.” The facility manager told the union’s bargaining committee during negotiations that the language was necessary because the grievances the union was filing were “just totally out of hand.” The administrative law judge concluded that the bargaining proposal and the accompanying statements would reasonably tend to discourage employees from filing contractual grievances, in violation of Section 8(a)(1).

However, the Board reversed ALJ’s finding that the employer violated Section 8(a)(1) by threatening to discipline or discharge employees for filing or pursuing grievances. The Board observed that neither the ALJ nor any party cited a case in which it has found that the act of making a bargaining proposal at the bargaining table constitutes an unlawful threat under Section 8(a)(1). Accordingly, the Board declined to expand Board law and to find that the employer’s proffer of its bargaining proposal independently violated Section 8(a)(1).

Section 8(a)(3) and (1) violation. The Board agreed with the ALJ that the employer violated Section 8(a)(3) and (1) by discharging two employees for engaging in union and other protected concerted activities. Here, the union steward engaged in various statutorily protected activities known to the employer. He served as the chief union steward and a member of the union’s bargaining committee. Further, he filed numerous grievances and complaints related to unit employees’ terms and conditions of employment. Following the strike vote, he joined fellow unit employees picketing outside the employer’s front gates to protest the company’s economic proposals. Additionally, a text chain was replete with messages of solidarity among the unit employees.

There was also evidence of unlawful motivation and a causal connection between the steward’s protected activities and his discharge. Moreover, there was evidence of unlawful motivation and a causal connection between the steward’s protected activities and his discharge. Thus, the General Counsel established that the steward’s protected activities were a motivating factor in the employer’s decision to discharge him.

Absent employee. Despite the employer’s contention that the absent employee was terminated because he abandoned his employment, the Board agreed with the ALJ that the General Counsel established that the employee was discharged because he assisted the union and engaged in concerted activities. The General Counsel established the employer’s discriminatory motivation, and that if the employee had not engaged in the protected picketing in support of the strike, it would not have discharged him. Thus, applying the Wright Line framework, the ALJ concluded the General Counsel met her burden.

Partial dissent. Member Prouty disagreed with the Board’s decision to reverse the ALJ’s finding that the employer violated Section 8(a)(1) when it threatened to discipline or discharge employees for their grievance-filing activities. According to the dissent, Section 7 protects an employee’s grievance-filing activities, and that grievance filing is protected regardless of whether the grievances have merit. Here, the employer’s statements that the chief steward’s grievances were “just totally out of hand” and that he should cut down on the “bullshit grievances” conveyed that his protected grievance-filing activity was unacceptable to the employer and that his conduct could lead to his discipline or discharge. Further, the employer made no effort to provide any examples or other clarifying context to defeat the unlawful implications of these remarks.

The slip opinion is 375 NLRB No. 15.

Attorneys: Rana Roumayah for General Counsel. Ahmad Chehab (Miller Canfield Paddock & Stone) for Inland Waters Pollution Control, Inc.

Companies: Inland Waters Pollution Control, Inc.

Cases: Labor UnfairLaborPractices Bargaining Discharge EmployeeLeave AgencyNews