11/08/2024: ALJ Orders Amazon to Hold Third Election in Bessemer, AL Facility

Trader Joes wine store closure not illegal.

Hiran Management, Inc. d/b/a Hungry Like the Wolf, 373 NLRB No. 130, 16-CA-303914 (Published Board Decision)

The NLRB addressed whether a Houston restaurant violated Section 8(a)(1) of the Act by terminating eight employees who engaged in a walkout and strike. The events began when employees walked out of a mandatory staff meeting after their manager cursed at a supervisor. The employees notified management they were on strike and presented demands regarding workplace issues including unpaid duties, harassment concerns, and scheduling.

The employer responded by threatening termination if employees didn't return to work and ultimately fired all eight employees. The employer provided varying explanations for the terminations, including insubordination, no-call/no-show violations, and rights under Texas employment-at-will doctrine.

Administrative Law Judge Steckler analyzed the case under the Wright Line framework and found the walkout and strike constituted protected concerted activity. The ALJ determined the employer's shifting explanations for the terminations were pretextual, noting particularly that the employer's documentation was inconsistent and after-the-fact. The ALJ also rejected the employer's argument that its no-call/no-show policy justified the terminations, citing precedent that employees on strike need not call in daily.

The Board adopted the ALJ's findings but enhanced the remedies. Most notably, the Board added a notice reading requirement based on three factors: the serious nature of the violations (mass discharge), the high percentage of workforce affected (40%), and the involvement of high-ranking officials. The Board ordered standard remedies including reinstatement and backpay, plus compensation for search-for-work expenses under its Thryv decision.

The case establishes several important points. First, spontaneous walkouts remain protected activity even without advance planning or formal demands. Second, state employment-at-will doctrines do not override NLRA protections. Third, the Board will impose enhanced remedies, including notice reading requirements, when violations affect a significant portion of the workforce.

Significant Cases Cited

• NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962): Spontaneous walkout over working conditions is protected even without prior specific demands.

• Wright Line, 251 NLRB 1083 (1980): Established framework for analyzing discrimination cases involving employer motivation.

• Thryv, Inc., 372 NLRB No. 22 (2022): Employees must be compensated for direct and foreseeable pecuniary harms from unlawful discharge.

• Trompler, Inc., 335 NLRB 478 (2001): Walkout protesting supervisor's conduct is protected if related to working conditions.

• Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Concerted activity encompasses individual employees seeking to initiate or prepare for group action.

Vermont Information Processing, Inc. (VIP), 373 NLRB No. 131, 03-CA-301055 (Published Board Decision)

In the case Vermont Information Processing, Inc., the National Labor Relations Board (NLRB) addressed allegations of unlawful discharges under Section 8(a)(1) of the National Labor Relations Act (NLRA). The case centered on the termination of four employees—Christopher Bendel, Gordon Dragoon, Kaleb Noble, and Kestrel Swift—who were allegedly discharged due to their involvement in protected concerted activities, specifically the creation and dissemination of a salary spreadsheet and discussions critical of the employer.

Background

The dispute arose when Christopher Bendel, a senior software engineer, along with his colleagues Noble, Dragoon, and Swift, initiated and shared a salary spreadsheet among employees. The spreadsheet was intended to foster transparency regarding salaries at Vermont Information Processing (VIP) and to support discussions on wage equity. The employees' subsequent online discussions criticized the company’s management, salary structure, and reorganization plans.

VIP, a software company primarily serving the beverage industry, terminated the four employees shortly after discovering the spreadsheet and the associated chats. The company cited concerns about loyalty, system security, and the purported misconduct of the employees as reasons for their termination.

Administrative Law Judge (ALJ) Findings

Administrative Law Judge Arthur J. Amchan issued a decision finding that VIP violated Section 8(a)(1) by discharging the employees for engaging in protected concerted activities. The ALJ applied the Wright Line test, which requires the General Counsel to show that the employees' protected conduct was a motivating factor in the employer’s decision to discharge them. The ALJ concluded that the employees were terminated due to their concerted activities related to discussing wages and workplace conditions.

1. Concerted Activity: The creation of the salary spreadsheet and the online discussions were deemed concerted activities under Section 7 of the NLRA, as they involved mutual aid and protection of employees' interests.

2. Supervisory Status: VIP argued that Dragoon and Swift were supervisors and thus not covered by the NLRA. The ALJ found that their roles did not meet the statutory definition of supervisors, as they did not exercise independent judgment in hiring, firing, or assigning significant duties.

3. Pretextual Discharge: The ALJ determined that the employer's stated reasons for discharge, including allegations of data sabotage and loyalty concerns, were pretextual. The company’s actions, such as immediately disabling Bendel’s account and failing to investigate alleged data breaches, indicated that the real motive was the employees' protected activities.

Board Decision

The NLRB affirmed the ALJ's findings but modified the remedies.

Key Cases Cited

1. Wright Line, 251 NLRB 1083 (1980): Establishes a burden-shifting framework for cases where an employer allegedly discharges employees due to their protected activities.

2. Meyers Industries, 268 NLRB 493 (1984): Defines concerted activities as those engaged in with or on behalf of other employees.

3. Triple Play Sports Bar & Grill, 361 NLRB 308 (2014): Protected concerted activities do not lose protection under the Act merely because they include unprotected comments made by others.

Omnisource, LLC, 373 NLRB No. 134, 08-RD-348156 (Published Board Decision)

The NLRB addressed whether to reconsider its standards for selecting representation election sites. The case arose from a union's request to review an Acting Regional Director's Decision and Direction of Election, specifically challenging the selection of the employer's premises as the election site.

The Board majority, consisting of Members Kaplan and Wilcox, denied the review request, finding no substantial issues warranting consideration. They maintained the Board's longstanding practice of generally conducting elections on employer premises unless good cause exists for an alternative location.

Member Prouty dissented, arguing that the Board should reexamine its approach to election site selection. He noted that while the National Labor Relations Act does not specify where elections must be held, the Board's Casehandling Manual creates a presumption favoring employer premises based primarily on voter accessibility.

Prouty identified several problems with this approach. First, employers are not neutral parties in representation elections, yet they control the election environment. Second, the current standards may inadequately protect laboratory conditions necessary for fair elections. Third, pending unfair labor practice charges, which might normally block an election under the Board's rules, are not sufficiently considered when selecting election sites.

The dissent suggested that Regional Directors should more readily consider neutral off-site locations and apply the same factors used in rerun elections to all representation elections. These factors were established in Austal USA, LLC (357 NLRB 329), which specifically addressed site selection for rerun elections.

While Member Wilcox joined the majority in denying review in this case, she indicated openness to reconsidering election site standards in a future appropriate case. Member Kaplan, conversely, expressed support for maintaining the current policy of delegating site selection discretion to Regional Directors.

This decision maintains existing practice but signals potential future changes in how the Board approaches election site selection. The split among Board members, with one firmly supporting current practice, one open to change, and one advocating for immediate reconsideration, suggests this issue may receive further attention in future cases.

Trader Joe's East, Inc., JD-68-24, 02-CA-306679 (ALJ Decision)

For about a decade, Trader Joe's operated a wine shop next to its grocery store on East 14th Street in Manhattan's Union Square. In 2019, the wine shop received its own store number and separate staff from the grocery store. On August 11, 2022, employees arriving for work found a notice announcing the shop's immediate closure. The company's only explanation was that it would "explore another location" for its sole New York wine license.

Behind the scenes, employees had been quietly discussing unionization. Robert Bradlea, part of an in-house organizing committee, testified they were close to filing a representation petition. Just days before the closure, the committee had decided to start collecting union authorization cards, though none had been signed yet. This organizing effort came amid successful union votes at other Trader Joe's locations - notably in Hadley, Massachusetts and Minneapolis.

Store manager Jelani Rose had several conversations about unions with employees in the weeks before the closure. He asked employee Leomary Hernandez about her views on the Hadley union victory and suggested that benefits could decrease if employees unionized. In another instance, Rose questioned employee Karl Wittman about unions during a performance review. These conversations would later prove crucial to the case's outcome.

When Administrative Law Judge Arthur J. Amchan analyzed the evidence, he split his findings. On the question of Rose's conversations with employees, the judge found clear violations of labor law. The questioning about union sympathies and suggestions about futility of unionizing crossed legal lines established in prior cases. The timing and context of these conversations, coming amid organizing at other stores, made them coercive rather than casual.

However, on the larger question of whether the store closure was retaliatory, the evidence fell short. While the timing was suspicious - coming just after union victories at other locations - the General Counsel couldn't prove that corporate decision-makers knew about the wine shop's organizing effort or that anti-union sentiment drove the closure decision. No documents explained the closure rationale. No management witnesses testified about the decision-making process. The only evidence of anti-union animus came from store manager Rose, and nothing showed he played any role in the closure decision or communicated with higher management about union activity.

This evidence gap proved fatal to the General Counsel's case. Under the Wright Line standard, the prosecution needed to show protected activity, employer knowledge, and enough evidence of anti-union sentiment to suggest it motivated the closure. Only then would the burden shift to Trader Joe's to prove it would have closed the store anyway. But without proof that corporate decision-makers knew about the organizing drive or harbored anti-union sentiment, the timing alone couldn't carry the case.

Key Cases Cited

• Wright Line, 251 NLRB 1083 - Established framework for analyzing discriminatory motivation in mixed-motive cases

• Rossmore House, 269 NLRB 1176 - Set factors for analyzing coercive interrogation

• Equipment Trucking Co., 336 NLRB 277 - Found statements about futility of unionizing unlawful

• Phillips 66, 360 NLRB 124 - Found questioning about union views during performance review coercive

Amazon.com Services LLC, JD(NY)-22-24, 10-CA-290944 (ALJ Decision)

This case involves Amazon.com Services LLC and the Retail, Wholesale and Department Store Union (RWDSU) concerning a series of unfair labor practice (ULP) charges and objections related to a rerun election held in 2022 at Amazon’s fulfillment center (BHM1) in Bessemer, Alabama. Administrative Law Judge (ALJ) Michael P. Silverstein issued a decision on these matters, focusing on Amazon’s actions that allegedly interfered with employees' rights under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA).

Key Allegations

1. Unlawful Confiscation of Union Materials: The General Counsel argued that Amazon unlawfully removed union flyers from breakrooms and restrooms, violating Section 8(a)(1).

2. Surveillance and Coercion: Allegations included Amazon managers engaging in surveillance of union activities and coercing employees by threatening adverse consequences if they supported unionization.

3. Disparate Enforcement of Rules: The Union claimed Amazon selectively enforced policies, allowing anti-union materials to remain while removing pro-union materials, especially during the critical period before the election.

Findings by the ALJ

1. Violation Regarding Union Materials

   • The ALJ found that Amazon violated Section 8(a)(1) by confiscating union flyers from the breakrooms and restrooms, especially during the critical period before the election. Evidence showed Amazon managers and contracted cleaning staff removed union literature while allowing non-union materials to remain. This action was found to have a chilling effect on employees' Section 7 rights to engage in protected concerted activities.

2. Surveillance and Coercion Allegations

   • The ALJ upheld some of the allegations that Amazon engaged in unlawful surveillance, finding that managers observed employees' union activities in the breakrooms and the parking lot. For instance, Amazon managers allegedly monitored employees distributing union flyers and used security personnel to intimidate employees engaging in protected activities.

   • However, not all allegations were sustained. The ALJ dismissed claims related to Amazon's alleged threats of plant closure and loss of benefits, citing insufficient evidence that these statements were made or had the intended coercive effect.

3. Disparate Enforcement of Policies

   • Amazon was found to have enforced its solicitation policies in a discriminatory manner. While the company allowed anti-union messages to be displayed in work areas, it aggressively removed pro-union materials. The ALJ held that such selective enforcement violated employees' Section 7 rights.

Remedies Ordered

1. Rerun Election: The ALJ concluded that Amazon's unfair labor practices tainted the 2022 rerun election, necessitating a third election. The pervasive nature of Amazon’s actions, particularly the confiscation of union materials, was deemed sufficient to set aside the election results.

2. Cease and Desist Order: Amazon was ordered to stop unlawfully removing union literature and engaging in surveillance of employees' protected activities.

3. Posting of Notices: Amazon is required to post physical and electronic notices informing employees of their rights under the NLRA and assuring them that the company will not interfere with those rights in the future.

Significant Cases Cited in the Decision

1. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Employers cannot prohibit union solicitation during non-working times in non-working areas unless justified by special circumstances.

2. Tri-Cast, Inc., 274 NLRB 377 (1985): Surveillance or actions that create the impression of surveillance of employees' union activities is coercive and violates Section 8(a)(1).

3. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962): Employer rules must be enforced consistently and not discriminatorily against union activities.

Aqua-Chem, Inc., 10-RC-350539 (Regional Election Decision)

NLRB Region 10 addressed whether a unit of welders and welder foremen at Aqua-Chem's Knoxville water purification facility constituted an appropriate bargaining unit. The union sought this limited unit, while the employer argued for a broader unit including all production, maintenance, and quality control employees.

Regional Director Turner first considered whether the welders constituted a traditional craft unit. He found they did not, noting the absence of a formal apprenticeship program and relatively modest experience requirements - just one year for entry-level welders. This fell short of the typical four-year experience standard for journey-level craft status.

Having rejected craft status, RD Turner applied the American Steel framework. He found the welders shared an internal community of interest through their common skills and certifications, though they lacked a separate department and had dispersed supervision. The group was readily identifiable based on their distinct welding function and required certifications. They were also sufficiently distinct from other workers, as they performed the vast majority of the facility's welding work.

Because the employer argued for a larger unit, RD Turner then examined whether an overwhelming community of interest existed between welders and other employees. He methodically evaluated traditional community of interest factors:

The supervision structure cut both ways - welders reported to four different supervisors who also supervised other employees, but other departments had entirely different supervisory structures. Employee interchange was minimal, with only two instances of non-welders performing significant welding work. While all employees participated in an integrated production process, welders possessed distinct skills, certifications and equipment. Employees shared common benefits, facilities and general working conditions.

RD Turner concluded these factors did not establish an overwhelming community of interest requiring a larger unit. While there was functional integration and some common working conditions, the welders' distinct skills and limited interchange supported a separate unit. RD Turner ultimately directed an election in the welder-only unit for December 2024.

Significant Cases Cited in the Decision

• American Steel Construction, 372 NLRB No. 23 (2022) - Established current framework for analyzing appropriateness of petitioned-for units.

• Burns & Roe Services Corp., 313 NLRB 1307 (1994) - Set forth factors for determining craft unit status.