By: Elizabeth Mincer
On July 29, 2026, the NLRB issued its decision in Inland Waters Pollution Control, Inc., 375 NLRB No. 15, a case that, while resulting in unfair labor practice findings against the employer, contains an important and favorable clarification for management: the mere act of making a bargaining proposal at the bargaining table does not constitute an unlawful threat under Section 8(a)(1) of the Act. Employers engaged in collective bargaining should take note of this decision, which reinforces the right to propose controversial contract language at the table.
Background
The case arose from a labor dispute at Inland Waters Pollution Control, Inc., a Detroit-area sewer repair company whose hourly employees were represented by Teamsters Local 247. During successor contract negotiations in December 2020, the employer proposed adding language to the grievance and arbitration procedure that would allow it to “issue disciplinary actions against employees levying baseless, malicious or harassing grievances,” including “disciplinary steps of time off or termination for serious offenders.” During the bargaining session, the employer’s fleet manager stated the language was necessary because grievances were “just totally out of hand,” and the employer’s attorney told the union’s chief steward that his “excessive amount of grievances” was “a problem” and that he should cut down on “bulls*** grievances.” The employer later withdrew the proposal.
Separately, in April 2021, unit employees voted to reject the employer’s final contract offer and went on strike. Two employees were discharged, allegedly for engaging in union and other protected concerted activities. The ALJ found violations on all counts: two unlawful discharges under Section 8(a)(3) and an independent 8(a)(1) violation for threatening employees’ grievance-filing rights at the bargaining table.
The Board’s Decision
The Board agreed that the discharges were unlawful, applying the age-old Wright Line framework. However, in a significant win for management, Chairman Murphy and Member Mayer reversed the ALJ’s finding that the employer’s bargaining proposal and accompanying statements independently violated Section 8(a)(1). The majority noted that neither the ALJ nor any party cited a case in which the Board had previously found that merely making a bargaining proposal at the table constitutes an unlawful threat. The Board declined the former General Counsel’s invitation to expand Board law in that direction.
Critically, the Board grounded its reasoning in long-standing labor policy favoring “uninhibited, robust, and wide-open debate in labor disputes,” citing Letter Carriers v. Austin, 418 U.S. 264, 273 (1974), and the Board’s historical tolerance of “intemperate, abusive and inaccurate statements” in the context of labor disputes. The majority concluded that the General Counsel failed to prove that the statements at the bargaining table constituted an unlawful threat to discharge employees for filing grievances. Member Mayer further noted that even if the proposal, if agreed to, would have subjected employees to discipline for protected grievance-filing activities, such waivers are lawful under Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), and therefore proposing such a waiver, standing alone, is lawful.
The Dissent
Member Prouty dissented from the majority on these points. He reasoned that the employer’s statements that grievances were “just totally out of hand” and that the chief steward should cut down on “bulls*** grievances”—made in conjunction with the proposal to discipline employees for filing grievances—conveyed that the steward’s protected activity was unacceptable and could lead to discipline or discharge.
Member Prouty argued that just because it happens in the bargaining context does not immunize otherwise coercive statements, citing ExxonMobil Research & Engineering Co. and PRC Recording Co. for the proposition that the Board has repeatedly found independent 8(a)(1) violations based on statements made at the bargaining table. He characterized the employer’s proposal as “a threat cloaked in the garb of a bargaining proposal.”
Importance for Employers
This decision provides some comfort that proposing contract language at the bargaining table—even language addressing employee conduct like grievance filing—should not, standing alone, constitute an unfair labor practice. It also confirms that the rough-and-tumble of collective bargaining remains protected space for candid, even intemperate, exchanges about bargaining positions.
That said, employers should be mindful that this decision does not provide blanket protection: the majority carefully distinguished cases involving threats of retaliatory bad-faith bargaining and emphasized that an unlawful contract proposal could still be evidence of bad-faith bargaining under Section 8(a)(5), even if no such allegation was at issue here.
