04/16/2023: Employer Did Not Demonstrate an Imminent Closure

Just one case today.

1. United Natural Foods Inc., 12-RC-337216 (Regional Election Decision).

The main issue is whether the election petition should be dismissed because the Employer, United Natural Foods, Inc. and Albert's Organics, Inc. (UNFI), contends the cessation of its transportation services and employment of drivers is imminent and definite due to a subcontracting agreement with J.B. Hunt Transport, Inc. The Petitioner, Teamsters Local 79, asserts a question concerning representation exists because UNFI failed to establish the cessation is imminent and definite.

Under Board law (Retro Environmental, Inc.), a petition may be dismissed when an election will serve no purpose because cessation of the employer's operations is imminent, such as when an employer completely ceases operating, sells its operations, or fundamentally changes its business. The Board requires "concrete evidence" of the imminent change and will not dismiss a petition based on conjecture, uncertainty, or evidence of cessation that is conditional or tentative.

The Regional Director found UNFI failed to meet its burden of proving cessation of its transportation department is imminent and definite. Key facts leading to this conclusion:

• The subcontracting agreement with J.B. Hunt was heavily redacted, the 2019 master agreement was not provided, so the best evidence of the terms governing the arrangement are unknown.

• Testimony from UNFI's VP of Outbound Transportation shows the June 2 transition date is uncertain, as UNFI or J.B. Hunt may not have necessary equipment by then. The agreement states the June 2 start-up is "subject to equipment availability."

• UNFI's March 5 letter to drivers states "We anticipate your employment will end on or about June 2" and UNFI "will provide at least 60 days notice" before separation. As of the hearing date, that notice had not been provided.

The Regional Director distinguished several cases cited by UNFI:

• Douglas Motors Corp. - Employer definitively established it would subcontract production and eliminate manufacturing in 2 months.

• Hughes Aircraft Co. - Concrete evidence employer signed agreements to subcontract security work in 30-45 days and issued notices of layoff.

• Larson Plywood Co. - Imminent plant closure sufficiently definite as employer had instructions to liquidate within 90 days.

Since UNFI failed to establish the subcontracting and termination of drivers is sufficiently imminent and definite, the Regional Director found a question concerning representation exists and directed an election in the petitioned-for unit.