On June 25, 2012, the NLRB issued a decision in Tesco PLC. A key litigated issue was whether the employer violated the NLRA by requiring its employees to distribute flyers to customers that apologized for prior union handbilling in front of the employer's store.

As part of their union organizing campaign, off-duty employees of Tesco PLC's Eagle Rock Store and representatives of the United Food and Commercial Workers International Union (Union) distributed pro-union flyers in front of the store. After some customers complained to management, the store had its employees personally hand customers flyers with a $5 coupon attached, which apologized for the union protesting and noted, in part, that:

Two of the store's employees complained about having to hand out the flyers, but neither were disciplined for their refusal. Although the employees were not unionized, a majority of the store's employees had earlier petitioned Tesco to voluntarily recognize the Union as their collective bargaining representative. Tesco declined, stating it would not recognize the Union without an election.

The Union filed unfair labor practice charges against Tesco, claiming Tesco violated the NLRA by requiring employees to distribute the flyers. An NLRB administrative law judge (ALJ) found Tesco did not violate the NLRA. Although an employer may not require employees to make an observable choice to support or oppose a union, the ALJ found the flyers could not reasonably be viewed as an anti-union communication or as a part of Tesco's campaign against union representation since they did not contain an anti-union message or otherwise express an opinion on unionization.

Both the Union and Tesco filed exceptions with the panel (Board) heading the judicial functions of the NLRB.

In a 2-1 decision (Member Hayes dissented), a three-member panel of the Board reversed the ALJ's decision and held that Tesco violated the NLRA since, by requiring employees to personally hand the flyers to customers, Tesco coerced employees in their choice of whether to participate in the unionization debate in violation of their rights under Section 7 of the NLRA.

The Board found that the flyers did not need to contain an explicit anti-union message to be part of the employer's campaign or force employees to make an observable choice. Instead, the Board held that the key inquiry is whether employees would understand the flyers or other material to be a component of the employer's campaign.

In this case, the Board found Tesco's employees would reasonably perceive the flyers to be a part of the employer's anti-union campaign, since the flyers stated:

The Board also noted that two employees did object to distributing the flyer, confirming the Board's conclusion that employees would reasonably have perceived the flyer as campaign material.

The Board also separately found that Tesco unlawfully:

The Board's decision establishes that requiring an employee to hand out flyers apologizing to customers for inconvenience caused by union protestors may infringe on the employee's right to choose the degree to which he will participate in the unionization debate, even if the flyers do not contain an explicit anti-union message. Following this decision, employers wishing to handbill or otherwise apologize to customers for a union's activities on the employers' premises should have their managers and supervisors, who are exempt from coverage under the NLRA, distribute the handbills rather than their rank and file employees.