This Administrative Law Judge (ALJ) decision addresses allegations that United Parcel Service, Inc. (UPS) committed unfair labor practices by interfering with employees' rights to organize and by discriminating against them based on their union activities. The case arose after UPS conducted a job analysis and planned to implement pay raises. Simultaneously, certain employee groups sought union representation, leading UPS to file petitions for representation elections.

The ALJ found that UPS violated Section 8(a)(1) of the National Labor Relations Act (the Act) by informing employees that they would not receive pay raises due to pending representation petitions. This conduct occurred during the "critical period" following the filing of an election petition, a time when the Board strives to maintain "laboratory conditions" for a fair election. The decision emphasizes that announcing or implementing changes in wages or benefits during this period can taint the election process. While UPS argued that withholding the raises was necessary to avoid influencing the election, its communication to employees did not meet the "safe harbor" requirements established in cases like Uarco Inc. and Ansul Inc. Specifically, UPS failed to assure employees that the raises would be implemented after the election, regardless of the outcome, leading employees to reasonably believe the raises were permanently denied.

Furthermore, the ALJ found that UPS violated Sections 8(a)(1) and 8(a)(3) of the Act by actually withholding the planned pay raises from employees in two specific bargaining units. The ALJ determined that although the Respondent's motive was to avoid disrupting "laboratory conditions" rather than overt hostility towards the union, this action was still unlawful. The ALJ corrected an initial assessment in a bench decision, clarifying that even in the absence of clear animus, the conduct of denying employees anticipated benefits due to union activity is inherently destructive of employee rights, aligning with the principles of NLRB v. Great Dane Trailers, Inc. The ALJ concluded that the job analysis and the communicated intent to provide raises had become a term and condition of employment. Denying these raises to employees because they were about to vote in an election, without providing the necessary assurances of future implementation, constituted unlawful discrimination and interference.

The ALJ also addressed statements made by a manager, Dave Barbiea, who told employees they would not receive a raise because it would be considered a "bribe" to keep out the Union. While the exact wording varied among witnesses, the ALJ credited the testimony that such statements were made. The ALJ found that while the statement itself might not have been an explicit threat, the failure to explain that the raises were being withheld solely to maintain election integrity and would be granted later, regardless of the election outcome, rendered the action unlawful.

In its defense, UPS noted its subsequent actions, including agreeing to a card check by an arbitrator and quickly entering into a collective bargaining agreement with the Union. However, the ALJ found that these later actions, while inconsistent with overt hostility, did not negate the initial violations that occurred during the critical period. The ALJ recommended that UPS cease and desist from such conduct and make whole the affected employees for the pay raises they would have received, with interest.

Significant Cases Cited

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): This decision significantly altered election procedures, increasing the consequences for unfair labor practices during the critical period and expanding circumstances for bargaining orders.
• General Shoe Corp., 77 NLRB 124 (1948): This foundational case established the concept of "laboratory conditions" for NLRB elections, emphasizing the need for an environment free from coercion to determine employees' uninhibited desires.
• NLRB v. Gissel Packing Co., Inc., 395 U.S. 575 (1969): The Supreme Court upheld the Board's authority to issue bargaining orders in cases where an employer's serious unfair labor practices have made a fair election impossible.
• Uarco Inc., 169 NLRB 1153 (1968): This case provided a "safe harbor" for employers wishing to delay wage increases during a union campaign, provided they clearly communicate that the increase will occur regardless of the election outcome and the sole purpose of the delay is to avoid influencing the election.
• Ansul Inc., 329 NLRB 935 (1999): This decision further clarified the requirements for the "safe harbor," emphasizing that an employer must clearly state the reason for postponement is to avoid election taint and assure the raise will be granted later irrespective of the election results.

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