07/10/2025: Georgia Cafe Illegally Fired Striking Workers
Teamsters bid to represent a subunit of a recently decertified unit was rejected.
Foxy Loxy Print Gallery & Cafe, LLC, JD-55-25, 10-CA-323297 (ALJ Decision)
This case involves three Savannah, Georgia cafés (Foxy Loxy, Henny Penny, and Fox & Fig) treated as a single employer under the National Labor Relations Act. In summer 2023, employees began organizing with Service Employees International Union and delivered a demand letter to management seeking improvements in working conditions. After management refused to meet with employees, workers staged a one-day strike on August 5, 2023.
Following the strike, the employer discharged 11 employees who participated in strike activities. The employer claimed the discharges were justified because striking employees entered the cafés, disrupted business, and upset customers. Additional employees were discharged days later for alleged no-call/no-show violations related to their strike participation. The employer also disciplined one employee for violating social media and solicitation policies after she posted about union activities.
The ALJ ruled that 10 of the 11 discharges violated the Act. For employees who entered the cafés during the strike, the ALJ applied the Atlantic Steel analysis rather than Wright Line, finding their conduct during the strike did not lose the Act's protection. The peaceful entry into cafés to deliver strike notices and ask other employees to join the strike was protected concerted activity. The ALJ found insufficient evidence to conclude that one employee (Jackson) was discharged with knowledge of his strike participation.
For employees discharged days after the strike (Guzman and Kennedy), the ALJ found that the employer's stated reasons were pretextual, as their disciplinary notices explicitly cited their failure to follow call-out procedures on the strike day.
The ALJ also found that the employer's social media policy was unlawfully overbroad because it would reasonably be interpreted by employees to prohibit protected discussions about the company. Additionally, the ALJ found that statements by managers indicating unionization would be futile and that the café might close if employees unionized violated Section 8(a)(1).
The ALJ ordered reinstatement with backpay for the unlawfully discharged employees, rescission of the overbroad social media policy, and posting of a remedial notice.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established burden-shifting framework for analyzing discrimination cases where employer claims it acted for legitimate business reasons.
Atlantic Steel, 245 NLRB 814 (1979): Created four-factor test to determine when employee conduct during protected activity loses the Act's protection.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established framework for analyzing facially neutral work rules that may reasonably be interpreted to restrict Section 7 activity.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Reaffirmed Atlantic Steel standard for analyzing alleged employee misconduct during protected activities.
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004): Set forth the standard for evaluating whether an employer's work rule would reasonably tend to chill Section 7 activity.
Dragonfly Wellness, LLC, 27-RC-366579 (Regional Election Decision)
This case involves a petition filed by International Brotherhood of Teamsters, Local 222 (Petitioner) seeking an election among certain employees of Dragonfly Wellness, LLC (Employer), a cannabis dispensary in Salt Lake City, Utah. The central issue is whether Section 9(c)(3) of the National Labor Relations Act bars the processing of this petition.
Background
In August 2023, United Food and Commercial Workers International Union, Local 99 (Intervenor) was certified as the exclusive collective-bargaining representative for a unit including wellness associates, delivery drivers, and pharmacists. In December 2024, a decertification petition was filed, and in January 2025, employees voted against continued representation by the Intervenor. On May 28, 2025, the Teamsters filed the petition at issue, seeking to represent a unit of "Inventory Specialists, Patient Success, Leads, Wellness Associates and Drivers," but excluding pharmacists.
Parties' Positions
The Petitioner argued that its proposed unit differed from the recently decertified unit by explicitly including Leads, Inventory Specialists, and Patient Success classifications while excluding Pharmacists. The Petitioner cited Treasure City, Inc. and Thiokol Chemical Corp. to support its position that the proposed unit was sufficiently different to avoid the election bar.
The Employer countered that Section 9(c)(3) bars the petition, arguing that the Petitioner's proposed unit constituted only minor alterations to the recently decertified unit. The Employer provided evidence that Inventory Specialists and Patient Success employees were already included in the decertified unit as "Wellness Associates" and that Leads, though voting subject to challenge, had participated in the prior election.
Legal Analysis
Regional Director Matthew S. Lomax determined that the petition was barred by Section 9(c)(3), which prohibits an election in "any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held."
The Director found that the Petitioner's unit was effectively a subunit of the recently decertified unit:
The evidence confirmed that employees classified as Patient Success and Inventory Specialist were included in the prior unit and voted without challenge in the decertification election.
Regarding Leads, while not expressly included in the prior unit, they were permitted to vote subject to challenge. Unlike in Treasure City, these employees were not denied the opportunity to be represented in the previous election.
The only substantive difference between the units was the exclusion of Pharmacists, making the proposed unit a subunit of the recently decertified unit.
The Director distinguished the cases cited by the Petitioner. In Thiokol Chemical and other cited cases, the subsequent elections involved units with broader scope than the prior elections, whereas the petition at issue concerned the same single facility as the decertification election.
Significant Cases Cited
Treasure City, Inc., 206 NLRB 185 (1973): Established that Section 9(c)(3) does not bar elections for employee groups who did not have the opportunity to be represented in a prior election.
Thiokol Chemical Corp., 123 NLRB 888 (1959): Determined that electrical employees who had recently voted in a separate election could participate in a broader plantwide election within 12 months.
Retail Store Employees' Union, 134 NLRB 686 (1961): Explained that Section 9(c)(3)'s 12-month election bar balances unions' interest in representation with employees' interest in stability.
Leslie Metal Arts Co., 167 NLRB 693 (1967): Held that an election in a unit with broader scope than a prior voting group does not violate Section 9(c)(3).
E Center, Yuba Center Head Start, 337 NLRB 983 (2002): Established that the Act does not permit circumvention of the election bar rule contained in Section 9(c)(3).