David Fuller is the store manager of a Trader Joe’s in Texas. Jill Groeschel worked at the same Trader Joe’s for almost eight years before she was fired in April 2022. At the start of the COVID-19 pandemic, the store implemented a number of safety measures, including mandatory mask use, social distancing, limiting the number of customers in the store, senior only shopping hours, installation of Plexiglas, enhanced cleaning regimens, and flexible leave policies.
Groeschel and other employees had several conversations about the lack of COVID-19 safety protocols. As one example, Groeschel and another employee discussed that an employee came into the store two days before testing positive for COVID-19 and employees were not notified of the possible exposure. Fuller expressed to the employees that he could not take any action due to privacy reasons. Eventually, Fuller did notify employees of the potential exposure, and employees expressed concern about the lack of transparency, causing one employee to quit.
In May 2021, Trader Joes began to roll back its COVID-19 safety measures, removing the mask mandate, restrictions on the number of customers, and Plexiglas dividers. Groeschel spoke with other employees who were concerned about the change, and employees agreed that Fuller brushed off the complaints.
Groeschel said she never received any negative performance reviews, write-ups, or incident reports in her eight years at Trader Joe’s, until she began raising concerns about the store rolling back COVID-19 safety measures. Throughout the Fall of 2021, Trader Joe’s began disciplining Groeschel, including for Groeschel yelling at another employee; leaving work early without telling her manager that the reason she was leaving was due to illness; and starting work before being administered the required COVID-19 symptoms screening.
In October 2021, Fuller gave Groeschel a verbal counseling for not responding when he greeted her and for being rude to the assistant manager about the symptom screening. On October 14, the store received a customer complaint about Groeschel yelling “why don’t you fire me” in front of the customers. Groeschel was issued a written warning.
In response to the written warning, Groeschel sent a letter to the Regional Vice President, Liz Hancock, raising concerns about the COVID-19 safety procedures. In February 2022, Groeschel received a negative performance review and was denied an annual raise for the first time during her employment.
In response, Groeschel filed a labor charge with the National Labor Relations Board (NLRB or Board), alleging the performance review and denial of a wage increase were in retaliation to her raising COVID-19 safety issues.
Shortly thereafter, Groeschel was informed that she was suspended pending an investigation due to employee complaints that were raised about Groeschel’s attitude, noting that she was behaving in an “angry” and “toxic” fashion, and her “aggressive” operation of a piece of machinery. Eventually, Trader Joe’s terminated Groeschel’s employment due to her aggressive behavior and safety concerns in operating store equipment.
Groeschel updated her NLRB complaint and alleged that Trader Joe’s violated Section 8(a)(1) and (4) of the National Labor Relations Act (NLRA) by issuing Groeschel a written warning, giving her a negative evaluation and thereby denying her a wage increase, and by suspending and subsequently discharging her.
The Administrative Law Judge found in favor of Groeschel and Trader Joe’s appealed to the Board.
To sustain a finding of discrimination, the General Counsel for the NLRB must show that the employee’s protected activity was a motivating factor in the employer’s decision by establishing that: (1) the employee engaged in protected activity, (2) the employer knew of that activity, and (3) the employer had animus against the protected activity, which must be proven with evidence sufficient to establish a causal relationship between the protected activity and the adverse action.
If evidence establishes these factors, the burden shifts to the employer to show it would have taken the same action in the absence of the employee’s protected activity.
Here, the Board affirmed the Administrative Law Judge’s (Judge) ruling, finding that Trader Joe’s violated the NLRA when it issued a written warning to Groeschel. The Board agreed with the Judge that the following actions showed animus: Fuller’s statement questioning whether Groeschel was “fit” for her position after she complained about Trader Joe’s COVID-19 protocols, email exchanges between Hancock and Fuller about Groeschel’s ongoing safety complaints, and a significant departure in recording details about Groeschel’s conduct.
The Board also affirmed the Judge’s conclusion that Trader Joe’s violated the NLRA when it suspended and discharged Groeschel. The Board reasoned that Groeschel engaged in protected concerted activity when she discussed issues relating to her 401(k) with her coworker. Groeschel had approached one employee who had a background in finance and asked if she knew Trader Joe’s was overcharging fees on its plans. At that time, some employees had already initiated a lawsuit against Trader Joe’s about its 401(k) plan. Under these circumstances, Groeschel’s efforts to enlist the help of her coworker was protected activity.
The Board also found that Trader Joe’s unlawfully suspended Groeschel, reasoning that the animus was shown due to the close timing between Groeschel filing an NLRB charge, engaging in protected activity, and her suspension. The Board found Trader Joe’s failed to complete a meaningful investigation into any of the allegations of misconduct that was ultimately relied upon to discharge Groeschel. Moreover, the employee complaints about Groeschel, which Trader Joe’s cited as a basis for her suspension, were mostly statements that the employees were motivated to submit in response to Groeschel discussing filing the unfair labor practice charge. Hancock and Fuller also encouraged some employees to draft and submit their statements when they complained about Groeschel. The Board found the reliance on these statements underscored the suspicious nature of Groeschel’s suspension.
The Board found in favor of Groeschel and ordered Trader Joe’s to cease and desist from this conduct, to reinstate Groeschel, to provide Groeschel back pay, to remove reference to unlawful discipline from Groeschel’s file, and to make Groeschel whole for any loss in earnings and adverse tax consequences.
Trader Joe’s, 373 NLRB No. 73.
Note: This case is an important reminder that employees have the right to band together to try to improve their working conditions. In this case, the employee was outspoken about her concerns with the way Trader Joe’s was responding to the COVID-19 pandemic. Although the employee had a history of yelling at other employees and customers, Trader Joe’s failed to show that their disciplinary action was unrelated to the employee raising concerns about her working conditions.