## Facts

- Shaw’s Supermarkets operated a distribution facility in Wells, Maine where employees voted in a January 1987 representation election.
- The election results were 71 votes for no union, 46 for a Teamsters local, and 1 for an independent union.
- Five days before the election, Shaw’s vice president told employees that if they chose a union, collective bargaining would “begin” at legally required minimum wages and workers’ compensation.
- The NLRB treated the statement, in context, as a coercive “threat of reprisal” and found an unfair labor practice under NLRA § 8(a)(1), notwithstanding § 8(c)’s protection for noncoercive employer speech.
- The Board set aside the election and ordered a new election.
- Shaw petitioned for review in the First Circuit; the NLRB sought enforcement of its order.

## Issues

1. Whether the NLRB could treat Shaw’s “bargaining from scratch” statement as an unlawful threat of reprisal under NLRA § 8(a)(1).
2. Whether, given the Board’s prior decisions addressing similar statements, the Board had to provide a reasoned explanation for reaching a contrary result.
3. Whether the court should enforce the Board’s order setting aside the election and directing a rerun election.

## Decision

- The First Circuit denied enforcement of the Board’s order and remanded to the NLRB.
- The court concluded the Board’s finding was inconsistent with the Board’s prior handling of similar “bargaining from scratch” statements and that precedent would have favored the employer on these facts.
- The court held that the Board may change course, but if it deviates significantly from well-established precedent it must explain why.
- Because the Board did not adequately explain its departure from prior precedent, the court refused to enforce and required further Board proceedings.

## Legal Principles

- NLRA § 8(a)(1) prohibits employer conduct or statements that interfere with, restrain, or coerce employees in exercising § 7 rights.
- NLRA § 8(c) protects employer speech during organizing campaigns unless it contains threats of reprisal or promises of benefit.
- An agency is not permanently bound by its precedent, but significant departures from well-established precedent require a reasoned explanation.
- Courts may deny enforcement and remand where an agency’s result conflicts with its prior decisions and the agency fails to justify the change, impairing predictability for regulated parties and meaningful judicial review.

## Conclusion

The First Circuit declined to enforce the NLRB’s rerun-election order because the Board treated an employer “bargaining from scratch” statement as coercive without explaining why that approach differed from its prior decisions, and it remanded for the Board either to follow its precedent or to justify a changed rule.


Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34 (1st Cir. 1989)