07/12/2024: Trader Joes Illegally Fired Worker for Complaining About Working Conditions

Terminated Twitter worker was unprotected supervisor.

Trader Joe's, 373 NLRB No. 73, 16-CA-291179 (Published Board Decision)

This is a decision by the National Labor Relations Board (NLRB) affirming an Administrative Law Judge's (ALJ) ruling that Trader Joe's violated Sections 8(a)(1) and 8(a)(4) of the National Labor Relations Act. The key points of the legal analysis are:

1. The NLRB affirmed the ALJ's finding that Trader Joe's violated Section 8(a)(1) by issuing a written warning to employee Jill Groeschel for her protected concerted activity of raising COVID-19 safety concerns.

2. The NLRB also affirmed the ALJ's conclusion that Trader Joe's violated Sections 8(a)(4) and 8(a)(1) by suspending and discharging Groeschel for filing an unfair labor practice charge with the NLRB.

3. The Board applied the Wright Line analysis to determine that Groeschel's protected activities were motivating factors in Trader Joe's adverse actions against her, and that Trader Joe's failed to show it would have taken the same actions absent her protected activities.

4. The NLRB agreed with the ALJ that Groeschel's discussion of 401(k) benefits with a coworker was protected concerted activity, even without evidence of intent to induce group action.

5. The Board found evidence of animus in Trader Joe's failure to properly investigate allegations against Groeschel before disciplining her, as well as in management communications expressing frustration with her safety complaints.

The NLRB largely adopted the ALJ's recommended order, with some modifications to the remedial language.

Key Cases

Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing discrimination cases turning on employer motivation.

Meyers Industries, 281 NLRB 882 (1986): Defined concerted activity as engaged in with or on the authority of other employees, not solely by and on behalf of the employee herself.

Thryv, Inc., 372 NLRB No. 22 (2022): Held that make-whole remedies should include compensation for direct or foreseeable pecuniary harms.

Dumbo 301 LLC d/b/a Magic Tavern, 373 NLRB No. 72, 19-CA-330910 (Published Board Decision)

This is a decision by the National Labor Relations Board (NLRB) granting the General Counsel's Motion for Default Judgment against Dumbo 301 LLC d/b/a Magic Tavern (the Respondent). The key points of the legal analysis are:

1. The NLRB found that the Respondent failed to file an answer to the complaint alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act.

2. Due to the Respondent's failure to answer, the Board deemed the allegations in the complaint to be true and granted default judgment.

3. The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Actors' Equity Association (the Union) as the exclusive collective-bargaining representative of the unit employees.

4. The Board asserted jurisdiction over the Respondent despite its refusal to provide commerce information, relying on Tropicana Products, 122 NLRB 121 (1958), which held that the Board need only prove statutory jurisdiction when an employer refuses to provide relevant jurisdictional information.

5. The Board ordered the Respondent to cease and desist from its unfair labor practices and to bargain with the Union upon request.

6. The Board granted the General Counsel's request to extend the certification year pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962), which allows for the extension of the certification year when an employer refuses to bargain.

Key Cases

1. Tropicana Products, 122 NLRB 121 (1958): Held that when an employer refuses to provide commerce information, the General Counsel need only prove statutory jurisdiction to establish a basis for asserting jurisdiction.

2. Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that the Board can extend the certification year when an employer refuses to bargain.

3. Ex-Cell-O Corp., 185 NLRB 107 (1970): The Board referenced this case in declining to adopt a compensatory remedy for employees' lost opportunity to bargain, as the issue has been severed for future consideration.

There is no underlying ALJ decision in this case, as it was decided on a motion for default judgment due to the Respondent's failure to answer the complaint.

PG PUBLISHING CO., INC. D/B/A PITTSBURGH POST-GAZETTE, JD-41-24, 06-CA-269416 (ALJ Decision)

This ALJ decision addresses allegations that PG Publishing Co. (Pittsburgh Post-Gazette) violated the National Labor Relations Act by failing to bargain in good faith with the Pittsburgh Typographical Union for a successor collective bargaining agreement and an interim health insurance agreement, and by unilaterally ceasing dues checkoff.

Key points of the legal analysis:

1. The ALJ found that PG Publishing violated Section 8(a)(5) and (1) of the Act by bargaining in bad faith for a successor agreement. The company's proposals, viewed as a whole, would leave the union and employees with substantially fewer rights than provided by law without a contract. These proposals included:

   1. Eliminating the union's exclusive jurisdiction over bargaining unit work and allowing non-unit employees to perform unit work or outsource it.

   2. Giving the company discretion over employees' hours of work without guaranteeing any specified hours per day or week.

   3. Allowing the company to unilaterally alter, scale back, or terminate healthcare, dental, vision, life insurance, and short-term disability plans.

   4. Granting the company discretion in selecting outside salespeople for layoffs, with seniority being only one of several factors considered.

   5. Giving the company discretion to compensate employees above minimum wage rates and to transfer/assign advertising accounts, territories, and categories.

2. The ALJ did not find that PG Publishing bargained in bad faith regarding the interim health insurance agreement, as the company made multiple proposals and explained its positions.

3. The ALJ ruled that PG Publishing violated the Act by unilaterally ceasing dues checkoff after contract expiration without bargaining to impasse.

4. The ALJ ordered PG Publishing to bargain in good faith, submit bargaining progress reports, and make the union whole for lost dues. However, the ALJ declined to order reimbursement of bargaining expenses or a notice reading, finding these extraordinary remedies unwarranted.

Key Cases

1. NLRB v. Katz, 369 U.S. 736 (1962) - Employers cannot unilaterally change terms and conditions of employment without bargaining to impasse after a contract expires.

2. Valley Hospital Medical Center, Inc., 371 NLRB No. 160 (2022) - Employers must continue dues checkoff after contract expiration as part of maintaining the status quo.

3. Frontier Hotel & Casino, 318 NLRB 857 (1995) - Reimbursement of bargaining expenses is only warranted in cases of unusually aggravated misconduct.

4. District Hospital Partners, L.P., 373 NLRB No. 55 (2024) - Proposals granting an employer broad discretion to unilaterally act on critical terms and conditions may demonstrate bad faith bargaining.

Twitter, Inc., JD(SF)-20-24, 20-CA-313740 (ALJ Decision)

This ALJ decision addresses whether Yao Yue, a former employee of X Corp. (formerly Twitter), was a statutory supervisor when she was terminated for posts about the company's return-to-office policy. The key legal analysis focuses on:

1. Determining supervisory status under Section 2(11) of the NLRA.

2. Analyzing whether Yue maintained supervisory authority from November 1-10, 2022.

3. Evaluating the credibility of witness testimony regarding when Yue was informed of changes to her role.

The ALJ concluded that Yue remained a statutory supervisor through November 10, primarily based on her continued exercise of supervisory authority to assign work and approve leave requests. As a supervisor, Yue was not entitled to NLRA protections, so the ALJ dismissed the complaint without reaching the merits of her termination.

Key Cases

1. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Outlined the three-part test for determining supervisory status under Section 2(11).

2. Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified the meaning of "independent judgment" in supervisory determinations.

3. Niederriter, Leonard, Co., Inc., 130 NLRB 113 (1961): Established that a supervisor's failure to exercise authority does not change their status if they retain the power.

4. Washington Beef Producers, 264 NLRB 1163 (1982): Supported finding that approving leave requests involves independent judgment and is a supervisory function.

5. Pacific Beach Corp., 344 NLRB 1160 (2005): Distinguished from this case, where schedule changes were made according to supervisor's instructions without independent judgment.

Bauman Crane Company, LLC, 04-RM-345090 (Regional Election Decision)

This decision concerns a petition filed by William Hall (Petitioner) seeking to decertify International Union of Operating Engineers Local 542 (the Union) as the bargaining representative for a unit of employees at Bauman Crane Company, LLC. The Union contested the petition, raising three primary arguments:

1. Petitioner's Supervisor/Manager Status: The Union argued that Hall is a supervisor under Section 2(11) of the National Labor Relations Act (NLRA) or a manager under Board policy, thus disqualifying him from filing the decertification petition.

2. Pending Unfair Labor Practice (ULP) Charges: The Union cited pending ULP charges against the Employer related to these issues and argued they should block the election.

The Employer countered that Hall was not a supervisor or manager, was an eligible voter in a prior election, and his status hadn't changed since then. The Petitioner did not take a position.

The Regional Director, after a hearing, determined to direct an election despite the Union's arguments. Here's the legal analysis supporting the decision:

• Supervisory/Managerial Status: The Regional Director held that the Petitioner's supervisory/managerial status need not be resolved before the election. This is based on Section 102.64 of the Board's Rules & Regulations, which states disputes concerning individual eligibility to vote or inclusion in the unit are typically not resolved before an election.

• Pending ULP Charges: The Regional Director acknowledged the pending ULP charges but determined they wouldn't prevent the election. The election will be held in abeyance, however, pending the outcome of the ULP charges.