09/09/2025: Trader Joe's Refusal to Bargain Violated NLRA
Interesting polling location problem for weed dispensaries in MA.
Proceedings Under Section 10(j) of the Act, GC 25-11, (GC Memo)
This September 2025 memo from Acting GC William Cowen emphasizes the importance of Section 10(j) injunctions for protecting employees' rights. It directs Regional Offices to:
Assess cases for interim injunctive relief, especially those with heightened risk of remedial failure (discharges during organizing, bargaining violations, withdrawal of recognition)
Identify potential cases early and expedite investigations
Apply the Starbucks Corp. v. McKinney four-factor test: (1) likelihood of success on merits, (2) irreparable harm without injunction, (3) favorable balance of equities, and (4) public interest
Focus particularly on irreparable harm and strength of violations
Submit recommendations promptly to the Injunction Litigation Branch
Consider interim settlements when appropriate
Significant Cases Cited
Starbucks Corp. v. McKinney, 602 U.S. 339, 346 (2024): Established the four-factor test for Section 10(j) injunctions requiring clear showing of likelihood of success on merits, irreparable harm, favorable balance of equities, and public interest.
Trader Joe's East, JD-74-25, 09-CA-335100 (ALJ Decision)
This case concerns allegations that Trader Joe's East, Inc. violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize and bargain with Trader Joe's United union and failing to provide requested information following the union's certification as the collective bargaining representative of employees at Trader Joe's Louisville, Kentucky store.
The case began when Trader Joe's United filed a petition seeking an election at Trader Joe's Shelbyville Road store in Louisville on December 20, 2022. An election was held on January 25-26, 2023, with a majority voting for the union. Trader Joe's filed objections, but a Hearing Officer recommended overruling them. On January 17, 2024, the Regional Director overruled the objections and certified the union as the representative for the appropriate bargaining unit of all full-time and regular part-time crew and merchants.
On February 8, 2024, Trader Joe's filed a Request for Review of the Regional Director's decision with the NLRB. Meanwhile, the union requested information from Trader Joe's on January 23, 2024, to prepare for bargaining. Trader Joe's refused to bargain with the union or provide the requested information, claiming it had no obligation while its Request for Review was pending.
Legal Analysis
Administrative Law Judge Sarah Karpinen determined that Trader Joe's violated the Act by refusing to bargain and provide information. The ALJ cited established Board precedent that "an employer is not relieved of its obligation to bargain with a certified representative pending Board consideration, or reconsideration, of a request for review."
The ALJ rejected Trader Joe's argument that this case should be governed by Howard Plating rather than Allstate Insurance. The judge explained that Howard Plating involved a situation where the alleged refusal to bargain occurred before certification, whereas in Allstate and the present case, the refusal occurred after certification. The ALJ also cited Audio Visual Services, where the Board confirmed that Allstate is the appropriate precedent when refusal to bargain occurs after certification.
The ALJ further rejected Trader Joe's argument that the certification was not final due to the pending Request for Review, citing the Board's Rules and Regulations Section 102.69(c)(2), which states that a Regional Director's decision "shall be final unless a request for review is granted."
Regarding the information request, the ALJ found that most items requested by the union were presumptively relevant to its role as collective bargaining representative. These included employee names, contact information, dates of hire, work hours, pay rates, job descriptions, employment policies, benefit information, disciplinary reports, OSHA logs, and employee transfer information. The ALJ determined that only one item (#21) regarding harassment complaints was not presumptively relevant, as the union did not establish its relevance through the request wording or testimony.
The ALJ also rejected Trader Joe's request to hold the case in abeyance pending the Board's ruling on the Request for Review, noting that delay would only create confusion and further postpone the employees' right to representation.
Remedy
The ALJ ordered Trader Joe's to cease and desist from refusing to recognize and bargain with the union, provide the requested information (except item #21), and post notices. The remedy included ensuring that employees receive the services of their chosen bargaining agent for the period provided by law, with the initial certification period beginning when Trader Joe's starts bargaining in good faith.
Significant Cases Cited
Allstate Insurance Co., 234 NLRB 193 (1978): Established that a pending request for review does not justify an employer's refusal to bargain with a certified union.
Howard Plating, 230 NLRB 178 (1977): Held that an employer did not violate the Act by refusing to bargain while awaiting a ruling when the refusal occurred before certification.
Audio Visual Servs. Grp., Inc., 365 NLRB 810 (2017): Confirmed that Allstate is the appropriate precedent when refusal to bargain occurs after certification.
Benchmark Industries, 262 NLRB 247 (1982): Established that an employer must bargain with a certified representative pending Board consideration of a request for review.
Sunset Station Hotel & Casino, 367 NLRB No. 62 (2019): Identified categories of information that are presumptively relevant to a union's role as bargaining representative.
ToroVerde MA Inc. D/B/a Cheech and Chong Dispensoria, 01-RC-369652 (Regional Election Decision)
The National Labor Relations Board (NLRB) Regional Director issued a decision directing mail ballot elections for employees at two cannabis dispensaries in Massachusetts. The case involves ToroVerde Massachusetts facilities in Northampton and Greenfield, where the International Brotherhood of Teamsters Local 404 filed petitions to represent budtenders, lead budtenders, and inventory employees.
Background
The parties initially agreed to hold manual elections at both facilities. However, these elections were canceled when suitable polling locations could not be established. The primary issue was that Massachusetts Cannabis Control Commission regulations require video recording of all activities at cannabis facilities, making it impossible to conduct private voting on the employers' premises.
Dispute and Analysis
The employers proposed conducting elections in tents set up in parking lots adjacent to their facilities. The Regional Director found this solution inadequate because:
External cameras would still create the impression that the election was being recorded as voters walked to and from polls
One of the proposed parking lots was shared with other businesses, risking insufficient space, privacy, and voter safety
The Regional Director exercised discretion in determining appropriate election sites, citing the Board's guidance that while employer premises are typically preferred, the polling place should be spatially and visually separated from other activities.
Decision
Due to the absence of suitable locations for manual elections, the Regional Director directed mail ballot elections for both facilities. The ballots will be mailed to eligible employees on September 12, 2025, and will be counted on September 30, 2025. Eligible voters include those employed during the payroll period ending August 17, 2025, who are also employed on the date they mail their ballots.
The decision affirmed the appropriateness of the bargaining units as stipulated by the parties.
Significant Cases Cited
2 Sisters Food Group, Inc., 357 NLRB 1816 (2011): Established that Regional Directors have discretion to determine election sites.
Austal, 357 NLRB 329 (2011): Affirmed Regional Directors' authority to choose election sites and consider physical layout and other relevant factors.
Manchester Knitted Fashions, Inc., 108 NLRB 1366 (1954): Earlier precedent vesting Regional Directors with discretion to select election sites.
The Milton Hershey School, 04-RC-371419 (Regional Election Decision)
This decision, issued on September 8, 2025, addresses a petition by Teamsters Local Union No. 776 to represent a unit of Central Monitoring Technicians employed by Milton Hershey School. The Regional Director determined that the petitioned-for unit is appropriate for collective bargaining and directed an election to be held on September 12, 2025.
The key dispute involved whether Central Monitor Telecommunication Leads should be included in the bargaining unit. The Employer contended these individuals are supervisors under Section 2(11) of the Act and should be excluded. Rather than resolving this dispute before the election, the Regional Director determined it was an eligibility issue affecting only two individuals out of thirteen potential unit members (approximately 15 percent of the unit). As this would not significantly change the size or character of the unit, the Regional Director directed that these individuals may vote subject to challenge, with their eligibility to be resolved after the election if necessary.
The decision confirms that the Employer is engaged in commerce within the meaning of the Act, the Union is a labor organization under Section 2(5), and a question concerning representation exists. The appropriate bargaining unit includes all full-time and regular part-time Central Monitoring Technicians at the Employer's Hershey, Pennsylvania facility, excluding clerical staff, confidential employees, managerial employees, guards, and statutory supervisors.
The decision provides detailed instructions regarding the election process, including voting eligibility (based on the September 5, 2025 payroll period), requirements for the voter list, posting of election notices, and the right to request review of the decision.
Significant Cases Cited
No significant cases were cited in this decision. The Regional Director's analysis relied solely on the National Labor Relations Act and the Board's Rules and Regulations, particularly Section 102.64 regarding election procedures and Section 102.67 concerning requests for review.