10/09/2024: Trader Joe's Union Decertification Petition Rejected
Election directed in a decertification petition for another employer.
Trader Joe's East, 01-RD-347289 (Regional Election Decision)
This document is a Decision and Order by NLRB Region 1 Regional Director Laura A. Sacks dismissing a decertification petition filed by Leslie Stratford against Trader Joe's United at Trader Joe's East in Hadley, MA.
Key points:
A decertification petition was filed on July 31, 2024, seeking to remove Trader Joe's United as the bargaining representative for workers at the Hadley, MA store.
There is a pending unfair labor practice complaint against Trader Joe's East alleging numerous violations of the NLRA, including 20 Section 8(a)(1) violations, 7 Section 8(a)(3) violations, and 5 Section 8(a)(5) violations. These included:
Maintaining overbroad and discriminatory policies related to dress code and personal appearance.
Prohibiting employees from wearing union insignia.
Threatening employees with negative consequences (e.g., freezing wages, loss of benefits) if they selected the Union as their representative.
Retaliating against union supporters through discipline, negative appraisals, and even termination.
Unilaterally changing retirement benefits for unionized employees without bargaining, creating an unfavorable disparity between unionized and non-unionized stores.
The Regional Director (“RD”) dismissed the decertification petition, finding that the alleged unfair labor practices, if proven, would have caused employee disaffection from the union and tainted the petition. In order to reach this conclusion, the RD applied the Master Slack factors:
Length of time between unfair labor practices and petition filing: While some charges were filed two years prior, many occurred during the first year of bargaining and remained unremedied. Citing Wendt and Overnite, the RD found the passage of time did not dissipate the coercive effect.
Nature of illegal acts: The RD found many allegations to be serious, including retaliation against union supporters, providing false information about bargaining, and discriminatorily changing retirement benefits for unionized stores.
Tendency to cause employee disaffection: The RD found the alleged actions would reasonably cause employees to lose faith in the union's ability to represent them effectively.
Effect on employee morale and union membership: The RD found the alleged actions would objectively impact employee morale and undermine support for the union.
Significant Cases Cited:
Rieth-Riley Construction Co., 371 NLRB No. 109 (2022) - Held that Regional Directors can still dismiss petitions based on pending unfair labor practice charges under the "Election Protection Rule."
Master Slack Corp., 271 NLRB 78 (1984) - Established a four-factor test to determine if there is a causal connection between unfair labor practices and employee disaffection from a union.
Overnite Transportation Co., 333 NLRB 1392 (2001) - Found a causal nexus under Master Slack when nearly four years had elapsed between unfair labor practices and a decertification petition.
Wendt Corporation, 371 NLRB No. 159 (2022) - Found a causal nexus under Master Slack with a nearly 3-year gap due to serious, unremedied unfair labor practices.
Miller Painting Co., 10-RD-348685 (Regional Election Decision)
This case involves Miller Painting Co. in Savannah, Georgia, and a petition filed by Jason M. Frame, seeking to decertify the International Union of Painters and Allied Trades 1169 District 77 as the collective bargaining representative of the unit employees. The primary legal issues in the case revolved around whether the Petitioner (Frame) was a statutory supervisor under the National Labor Relations Act (NLRA), and whether the Daniel/Steiny eligibility formula should be applied to determine the bargaining unit.
Legal Analysis:
Supervisory Status of Petitioner (Jason Frame):
The Union contended that Frame was a statutory supervisor and therefore ineligible to file a decertification petition. Under Section 2(11) of the NLRA, a supervisor is defined as an individual with the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline employees, or effectively recommend such actions, if the exercise of such authority requires independent judgment.
The key question was whether Frame had such supervisory authority. The Union argued that because Frame referred to himself as a superintendent and estimator, he was a statutory supervisor. However, both Frame and his supervisor, Lance Miller, testified that Frame's actual role was that of a crew leader, with no independent authority over hiring, firing, or disciplining employees. Frame's role involved assisting with projects and providing input, but the final decisions rested with Lance Miller or other managers.
The burden of proof is on the party claiming supervisory status. In this case, the Union did not provide sufficient evidence that Frame exercised independent judgment in performing supervisory functions. The Board concluded that Frame’s occasional input into managerial decisions did not make him a statutory supervisor, as the final authority always rested with management.
Application of the Daniel/Steiny Eligibility Formula:
The Union argued that the Daniel/Steiny formula should be used to determine the eligibility of employees to vote in the election. This formula is typically applied in the construction industry, where employment tends to be sporadic, and employees may work on a project-by-project basis.
The Board applies the Daniel/Steiny formula to ensure maximum voter enfranchisement in construction industry elections. The formula allows employees who have worked for the employer for 30 days within the previous 12 months, or 45 days within the previous 24 months, to be eligible to vote, regardless of whether they were employed during the immediate payroll period before the election.
The Board found that Miller Painting Co. operated in the construction industry, engaging in painting, blasting, and other construction-related activities. Therefore, the Daniel/Steiny formula was appropriate for this election to determine the eligible bargaining unit members.
Conclusion:
The NLRB Regional Director ruled that the Petitioner, Jason Frame, was not a statutory supervisor and was therefore eligible to file the decertification petition. The Daniel/Steiny eligibility formula was applied to determine the appropriate unit for the election. The Board directed an election to be held among the painters employed by Miller Painting Co., allowing them to vote on whether they wish to be represented by the International Union of Painters and Allied Trades 1169 District 77 for collective bargaining purposes.
Significant Cases Cited:
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined the criteria for supervisory status under Section 2(11) of the NLRA.
Steiny & Co., Inc., 308 NLRB 1323 (1992): Established the Daniel/Steiny formula for voter eligibility in construction industry cases.
Daniel Construction Co., 133 NLRB 264 (1961): Introduced the eligibility formula for employees in the construction industry, ensuring maximum participation in representation elections.