NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Gruma Corporation d/b/a
July 27, 2007
DECISION AND ORDER
By Chairman Battista and Members
Schaumber
and Walsh
On March 29, 2006,
Administrative Law Judge Albert A. Metz issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed an answering brief, and the
Respondent filed a reply brief. The
General Counsel filed cross-exceptions and a supporting brief, the Respondent
filed an answering brief, and the General Counsel filed a reply brief.
The National Labor Relations
Board has delegated its authority in this proceeding to a three-member
panel.
The Board has considered
the decision and the record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings, findings,[1]
and conclusions as modified and to adopt the recommended Order as modified and
set forth in full below.[2]
i. introduction
This case arose in the wake
of an organizing campaign and representation election among the Respondent’s employees
at its
Specifically, the judge
found, and we agree for the reasons set forth in his decision, that the
Respondent violated Section 8(a)(5) and (1) of the Act by taking the following
actions without giving the Union notice and an opportunity to bargain: (i)
eliminating a bargaining unit position from the sanitation department; (ii)
transferring employee Michaela Burgara from the sanitation department to
another department; (iii) subcontracting the sanitation department work; and
(iv) eliminating its employee-of-the-quarter award. We also agree with the judge’s findings that
the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its
method for determining whether to grant an annual wage increase and by unilaterally
failing to grant a wage increase in 2002, but we clarify the judge’s rationale.[3] Similarly, although we agree with the judge’s
dismissal of the complaint allegations that the Respondent unlawfully suspended
and discharged employee Ramon Marquez, we do so only for the reasons discussed
below.
ii. the failure to grant a wage
increase
in 2002
Beginning no later than
1998, the Respondent maintained a practice of granting employees annual wage increases
during the first quarter of every calendar year. According to the Respondent’s employee
handbook, an employee’s total wage increase consisted of any combination of
three parts: (1) a merit increase; (2) a “structural scale increase,” based on
the Respondent’s assessment of the local job market; and (3) a “step” increase,
i.e., a job promotion. The Respondent
determined the amount of the structural scale increase by conducting a
telephone survey of other area companies to assess wage levels in the local
market.
In September 2001, 1 month
after winning the representation election, the Union wrote to the Respondent,
insisting that any wage “increases be implemented in the normal course of
business” and that the
The Respondent also
unilaterally changed the methodology it used for determining whether to grant
employees a structural increase. First,
in place of the local market survey, the Respondent used a survey that included
employers throughout the State of
In analyzing whether the
Respondent’s conduct violated Section 8(a)(5) and (1) of the Act, the judge
applied the multifactor analysis set forth in Dynatron/Bondo Corp.,[4]
and found that the Respondent had an established practice of granting
first-quarter “merit” increases to employees.
The judge further found that, given this practice, the Respondent had an
obligation to bargain with the Union before deciding not to grant a “merit”
wage increase in 2002, and that by failing to do so, the Respondent violated
Section 8(a)(5) and (1) of the Act. The
judge also found that the Respondent violated Section 8(a)(5) and (1) by
unilaterally changing its method for determining whether to grant such an increase. We agree with the judge’s unfair labor
practice findings, but not his entire rationale.
Initially,
we agree with the Respondent that the judge mischaracterized the wage increase
withheld in 2002 as a merit-based increase.
In fact, the record shows that it was a structural scale increase.[5] The judge’s error, however, does not warrant
a different result.
It is well settled that an employer
violates Section 8(a)(5) and (1) if it unilaterally changes a term or condition
of employment. NLRB v. Katz, 369
Here, the record shows that
the structural wage increase was a term and condition of employment. Thus,
the Respondent had granted a structural wage increase to employees for at least
4 years prior to 2002. In addition, the
timing of the increase was fixed, as the increases were consistently granted
during the first quarter of each year.
Further, the sole criterion for determining the amount of the structural
wage increase was fixed (the local wage survey). Finally, the majority of the Respondent’s
employees—at least 80 percent—received this annual first-quarter wage increase,
and those increases fell within a narrow range.[6] Taking all of these factors into account, we
find that the annual structural wage increase was an established term and
condition of employment by 2002.
That
being the case, the Respondent was obliged to maintain the fixed elements of
the structural wage increase program—the local wage survey and its timing—and
to negotiate with the
First, the Respondent
unilaterally changed its established method for determining whether its employees
were entitled to a structural wage increase.
As described, prior to 2002 the Respondent conducted a telephone survey
of local companies to assess area wages.
In 2002, the Respondent switched to a statewide market survey. In addition, the Respondent changed the
timing of the wage survey from February/March to October. Further, for the first time, the Respondent
considered not only the wage survey, but also its recruitment and retention
needs. By unilaterally making these
changes, the Respondent violated Section 8(a)(5) and (1) of the Act. See Hyatt
Regency Memphis, 296 NLRB 259 fn. 2, 285–286 (1989), enfd. 939 F.2d 361
(6th Cir. 1991) (unilateral changes to wage adjustment plan); see also J. P. Stevens & Co. v. NLRB, 623 F.2d 322
(4th Cir. 1980), enfg. in part 239 NLRB 738 (1978) (unilateral alteration to
method of computing holiday pay).
Second, the Respondent
failed to give the Union notice and an opportunity to bargain regarding the
amount of the increase, i.e., its determination that no structural wage
increases would be given to employees in 2002. By such unilateral conduct, the
Respondent additionally violated Section 8(a)(5) and (1). Daily
News of Los Angeles, supra.[7]
iii. the suspension and discharge
of employee marquez
Unit employee Ramon Marquez
began working for the Respondent in 1994.
Marquez engaged in union activity during the organizing campaign in
2001. The Respondent suspended and then discharged him in July 2002 after he
damaged a piece of manufacturing equipment.
The complaint alleges that it was Marquez’ union activity, not the
equipment damage, that motivated his suspension and discharge, and that the
Respondent thereby violated Section 8(a)(3) and (1) of the Act.
The judge, however, dismissed
those complaint allegations. The judge
found that the General Counsel did not meet his initial Wright Line[8]
burden of showing that Marquez’ union activity was a motivating factor in the
Respondent’s decision to suspend and discharge him. Specifically, the judge found that the
management official primarily responsible for the adverse actions again Marquez
had no knowledge of his union activities.
The judge further found that, even assuming the General Counsel had
satisfied his initial burden, the Respondent established that it would have
suspended and discharged Marquez in any event based on the equipment
damage. We agree with the judge’s
dismissal of these allegations, but we rely only on the General Counsel’s
failure to establish that the Respondent had knowledge of Marquez’ union activities.
The Respondent’s suspension
and discharge of Marquez was handled by Human Resources Manager Elizabeth
Laytong, who had only recently joined the Respondent, in April 2002. Laytong suspended Marquez, investigated his
alleged damage to equipment, and recommended his discharge to Vice President
Jim Needles, who approved it without further inquiry.
The judge specifically
credited Laytong’s testimony that she had no knowledge of Marquez’ prior union
activity in 2001. Although there is
testimony that Needles had knowledge of certain employees’ union activity, he
denied having knowledge of Marquez’ union activity, and there is no evidence to
the contrary.[9]
In these circumstances, we
find that the General Counsel failed to establish that the Respondent knew
about Marquez’ union activity when it suspended and discharged him. In particular, Human Resources Manager
Laytong’s credited testimony establishes that she had no such knowledge, and it
was Laytong who suspended Marquez and effectively recommended his discharge. In addition, the General Counsel has not
shown that Vice President Needles, who made the final discharge decision, was
aware of Marquez’ prounion sentiments.
Further, we agree with the judge that the record as a whole does not
provide a basis for inferring knowledge.
Absent evidence of knowledge, the General Counsel failed to satisfy his
initial Wright Line burden of
demonstrating that the suspension and discharge were discriminatorily
motivated. See, e.g., Tomatek, Inc., 333 NLRB 1350, 1353
(2001) (“[C]redible proof of ‘knowledge’ is a necessary part of the General
Counsel’s threshold burden, and without it, the complaint cannot survive.”).
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge,
as modified and set forth below, and orders that the Respondent, Gruma
Corporation d/b/a Mission Foods,
1. Cease and desist from
(a) Refusing to bargain
collectively with United Food and Commercial Workers International Union, Local
99, CLC, by changing employees’ terms and conditions of employment, including
discontinuing the employee-of-the-quarter award, withholding the annual structural
wage increase, changing the method for determining whether to grant a
structural wage increase, and failing to bargain over the amount of the
structural wage increase, without first giving the Union notice and an
opportunity to bargain.
(b) Refusing to bargain
collectively with the
(c) Failing and refusing to
provide relevant information requested by the
(d) Maintaining in employee
handbooks, or anywhere else, rules that: (i) prohibit employees from remaining
in nonwork areas when they are off duty; (ii) prohibit employees from leaving
the premises, their assigned work areas, or ceasing work, without
authorization; (iii) prohibit employees from distributing literature of any
kind on company property or on customer premises during nonworking times and in
nonworking areas; or (iv) prohibit employees from making false statements
concerning the Company, its employees, and its products and services.
(e) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) Before implementing any
changes in wages, hours, or other terms and conditions of employment of unit employees,
notify and, on request, bargain with the
All full-time and regular
part-time TQ techs, sanitation techs, receivers, customer service reps,
mechanics, production operators, production packers, production sweepers,
production ingredients, production maseca dumpers employed by the Respondent at
its facilities located at 5860 South Ash Avenue, Tempe, Arizona, and all
full-time and regular part-time warehousemen employed by the Respondent at its
facilities located at 840 West Carver Road, Tempe, Arizona; but excluding all
other employees, office clericals, guards, and supervisors as defined in the
Act.
(b) Make the unit employees
whole for any loss of earnings and other benefits they may have suffered by
reason of the Respondent’s failure to grant structural wage increases in
2002. Backpay shall be computed in
accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
(c) Rescind the unlawful
rules contained in the employee handbook that: (i) prohibit employees from remaining
in nonwork areas when they are off duty; (ii) prohibit employees from leaving
the premises, their assigned work areas, or ceasing work, without authorization;
(iii) prohibit employees from distributing literature of any kind on company
property or on customer premises during nonworking times and in nonworking
areas; and (iv) prohibit employees from making false statements concerning the Company,
its employees, or its products and services.
(d) Furnish all current
employees with inserts for the current employee handbook that (1) advise that
the unlawful rules have been rescinded, or (2) provide the language of lawful
rules; or publish and distribute revised handbooks that (1) do not contain the
unlawful rules, or (2) provide the language of lawful rules. Jupiter
Medical Center Pavilion, 346 NLRB No. 61, slip op. at 4 (2006).
(e) Discontinue
subcontracting bargaining unit work in the sanitation department and notify
and, on request, bargain with the
(f) Restore the janitorial
functions in the sanitation department as they existed prior to September 2003.
(g) Within 14 days from the
date of this Order, rescind the unilateral transfer of employee Michaela
Burgara from the sanitation department and offer her full reinstatement to her
former position as it existed before the unlawful action, without prejudice to
her seniority or any other rights or privileges previously enjoyed.
(h) Make Michaela Burgara
whole for any loss of earnings and other benefits she may have suffered as a
result of the unlawful changes in terms and conditions of employment resulting
from eliminating her unit position in the sanitation department. Backpay is to
be computed in accordance with Ogle
Protection Service, supra, with
interest as computed in New Horizons for
the Retarded, supra.
(i) Rescind the unilateral
change made by terminating the employee-of-the-quarter award, restore the
award, and make unit employees whole for any loss of earnings and other
benefits they suffered as a result of this unilateral change. Backpay is to be computed in accordance with Ogle Protection Service, supra, with interest as computed in New Horizons for the Retarded, supra.
(j) Furnish the
(k) Preserve and, within 14
days of a request, or such additional time as the Regional Director may allow
for good cause shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(l) Within 14 days after
service by the Region, post at its facility in
(m) Within 21 days after
service by the Region, file with the Regional Director a sworn certification of
a responsible official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
It
is further ordered that the complaint is
dismissed insofar as it alleges violations not specifically found.
Dated,
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Robert J. Battista, |
Chairman |
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Peter C. Schaumber, |
Member |
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Dennis P. Walsh, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not refuse
to bargain collectively with United Food and Commercial Workers International
Union, Local 99, CLC, by changing employees’ terms and conditions of
employment, including discontinuing the employee-of-the-quarter award,
withholding the annual structural wage increase, changing the method for determining
whether to grant a structural wage increase, and failing to bargain over the
amount of the structural wage increase, without first giving the Union notice
and an opportunity to bargain.
We will not refuse
to bargain collectively with the Union by eliminating a bargaining unit
position from the sanitation department, by transferring employee Michaela
Burgara from the sanitation department to another department, or by
subcontracting the sanitation department work, without first giving the Union
notice and an opportunity to bargain.
We will not fail
and refuse to provide relevant information requested by the
We will not maintain
in employee handbooks, or anywhere else, rules that: (i) prohibit you from
remaining in nonwork areas when you are off duty; (ii) prohibit you from
leaving our premises, your assigned work areas, or ceasing work, without
authorization; (iii) prohibit you from distributing literature of any kind on
company property or on customer premises during nonworking times and in nonworking
areas; or (iv) prohibit you from making false statements concerning the Company,
its employees, and its products and services.
We will not in any
like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
We will, before
making any changes in wages, hours, or other terms and conditions of
employment, notify and, on request, bargain with the
All full-time and regular
part-time TQ techs, sanitation techs, receivers, customer service reps,
mechanics, production operators, production packers, production sweepers,
production ingredients, production maseca dumpers employed by us at our
facilities located at 5860 South Ash Avenue, Tempe, Arizona, and all full-time
and regular part-time warehousemen employed by us at our facilities located at
840 West Carver Road, Tempe, Arizona; but excluding all other employees, office
clericals, guards, and supervisors as defined in the Act.
We will make you
whole for any loss of earnings and other benefits, including interest, you may
have suffered by reason of our failure to grant structural wage increases in
2002.
We will rescind the
unlawful rules contained in the employee handbook that: (i) prohibit you from
remaining in nonwork areas when you are off duty; (ii) prohibit you from
leaving the premises, your assigned work areas, or ceasing work, without
authorization; (iii) prohibit you from distributing literature of any kind on
company property or on customer premises during nonworking times and in nonworking
areas; and (iv) prohibit you from making false statements concerning the Company,
its employees, or its products and services.
We will furnish you
with inserts for the current employee handbook that (1) advise that the
unlawful rules have been rescinded, or (2) provide the language of lawful
rules; or publish and distribute revised handbooks that (1) do not contain the
unlawful rules, or (2) provide the language of lawful rules.
We will discontinue
subcontracting bargaining unit work in the sanitation department and notify
and, on request, bargain with the
We will restore the
janitorial functions in the sanitation department as they existed prior to
September 2003.
We will, within 14
days from the date of the Board’s Order, rescind the unilateral transfer of employee
Michaela Burgara from the sanitation department and offer her full
reinstatement to her former position as it existed before the unlawful action,
without prejudice to her seniority or any other rights or privileges previously
enjoyed.
We will make
Michaela Burgara whole, with interest, for any loss of earnings and other
benefits she may have suffered as a result of the unlawful changes in terms and
conditions of employment resulting from eliminating the unit position in the
sanitation department.
We will rescind the
unilateral change made by terminating the employee-of-the-quarter award, we will restore
the award, and we
will make you whole, with interest, for any loss of earnings and other
benefits you suffered as a result of this unilateral change.
We will furnish the
Gruma Corporation d/b/a
John Giannopoulos, Esq., for the General Counsel.
Gerard Morales, Esq., Jacqueline Mendez Soto,
Esq., and Lisa Coulter, Esq., for the Respondent.
Martin Hernandez, for the Charging Party <