NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
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to notify the Executive Secretary, National Labor Relations Board,
Goya Foods of
August
23, 2007
DECISION AND ORDER
By Members Liebman, Schaumber, and Kirsanow
On April 24, 2003, Administrative Law Judge George Carson II issued the attached decision. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed a brief in opposition to the cross-exceptions.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, as further discussed herein, and to adopt the recommended Order.
We affirm the judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally (a) assigned a new store account to a driver’s delivery route in August or September 2000; (b) reassigned a store vacated by a departing employee to another sales employee in mid-October 2000; (c) changed the night shift starting time for warehouse employees on August 26, 2001; (d) assigned stores previously serviced by a unit driver to nonunit agency drivers from September through December 2001; (e) changed the delivery routes of drivers in April 2002; and (f), also in April 2002, eliminated drivers’ ability to arrange both the order of daily deliveries and the order in which goods were to be loaded onto their delivery trucks.3
The Respondent’s exceptions, inter alia, raise two common
defenses to the findings of 8(a)(5) violations.
First, the Respondent contends that it lawfully withdrew recognition
from the
Second, the Respondent contends that it had no specific
obligation to bargain with the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Goya
Foods of Florida,
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
Marcia Valenzuela, Esq., for the General Counsel.
James C. Crosland and David
C. Miller., Esqs., for the Respondent.
Mr. Rodolfo Chavez, for the Charging Party.
DECISION
Statement of the Case
George Carson
II, Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent, Goya Foods of Florida, the Company, is a
The Respondent admits, and I find and conclude, that
UNITE! (Union of Needletrades, Industrial and Textile Employees, AFL–CIO, CLC),
the
ii. alleged unfair labor practices
A. Overview
The Company distributes Hispanic food products from its
warehouse located at
The operations of the Company are overseen by President
Robert Unanue who has held that position since August 1999. Unanue was the only
witness to testify on behalf of the Company. There is no contention that the
Company gave notice to the
B. Procedural Matters
The
Following the issuance of Judge Cullen’s decision on February 22, 2001, the Regional Director issued a complaint on September 25, 2001, in Cases 12–CA–21464 et al. alleging, inter alia, certain unilateral changes that had occurred subsequent to the Company’s withdrawal of recognition from the Union. That case was heard by Administrative Law Judge Raymond P. Green in November 2001. The Respondent, in its brief, represents that Judge Green is holding his decision in abeyance pending the Board’s action in the case heard by Judge Cullen, and it urges that I do likewise. The Respondent, both at the hearing and in its brief, argues that I should dismiss the allegations predicated upon the charges in Cases 12–CA–21168, 12–CA–21197, 12–CA–21787, all of which were filed prior to the hearing before Judge Green and that I also should dismiss the allegations relating to changed route assignments as charged in Case 12–CA–22225 insofar as the allegations constitute a continuing violation.[5] In that regard, at the hearing, I questioned whether, if found to have violated the Act, the Respondent would agree to “a full monetary remedy with regard to any commissions that were lost” based upon the route changes alleged in this proceeding and Counsel for the Respondent answered, “No.”
The Respondent admits service of the charges in Cases 12–CA–21168, 12–CA–21197, and 12–CA–21787. No complaint had issued in any of those cases when the hearing was held before Judge Green. The Respondent did not move to leave open the record in that case pending action by the Region upon those charges or move that they be consolidated for hearing. See Service Employees Local 87 (Cresleigh Management), 324 NLRB 774, 776 (1997). The General Counsel has “wide discretion in these matters, as befits a party exercising prosecutorial discretion.” Ibid. I hereby reaffirm my denial of the Respondent’s Motion to Dismiss. The allegations in this case are discrete and are not dependent upon any of the violations alleged in the case pending before Judge Green. If the Board rejects Judge Cullen’s findings, there is no bargaining obligation and my findings will be a nullity. If there is a bargaining obligation, the Respondent, as in the case of a disputed certification, has acted at its peril in making unilateral changes. See Flambeau Airmold Corp., 334 NLRB 165 (2001). There is no reason for me to hold this decision in abeyance, and I shall not do so.
C. The 2000 and 2001 Unilateral Change Allegations
1. Distributed overtime
The complaint alleges that the Respondent, since August 2000, unilaterally “distributed overtime to warehouse employees.” The General Counsel introduced documentary evidence establishing that various warehouse employees had worked overtime. There is no allegation or evidence of discriminatory distribution of overtime. Overtime is voluntary. Overtime has historically been offered to available employees. There is no evidence that the manner in which overtime is distributed changed or that any employee who sought overtime was denied overtime thereby affecting his earnings. I shall recommend that this allegation be dismissed.
2. Assigned vacant stores to salesmen
Sales representatives in the Sales Representatives and Merchandising
Employees Unit are paid on commission. The amount received depends upon the
value of the products they sell to stores to which they are assigned. In
mid-October 2000, a Sedano grocery store, referred to as Sedano 3, became available
for assignment when the salesman who had previously serviced that store left
the Company. The store was assigned to unit employee Hector Moro without notice
to or bargaining with the
There is no evidence of any written policy regarding the assignment of stores. President Unanue testified that the decisions regarding such assignments include consideration of the salesman’s performance and record over a period of time and other criteria such as the proximity of the store to other stores served by the salesman in that area. Unanue stated that the assignment could also depend upon the ability of the salesman to perform merchandising, i.e., actually putting the product on the shelves, “which some salesmen may not be able to do, depending on age, physical disability, whatever.”
The Respondent argues that it continued its past practice and that it is unreasonable to require it to bargain over every such assignment. That argument omits the crucial facts that such assignments were not made pursuant to any objective criteria but were discretionary and that these assignments have a direct impact upon the workload and earnings of employees.
In Mackie Automotive Systems, 336 NLRB 347, 350 (2001), the Board explained that continuation of past practices do not relieve employers of an obligation to bargain when employee wages are affected:
It is well settled that an employer’s past practices prior to the certification of a union as the exclusive collective-bargaining representative of the employees do not relieve the employer of the obligation to bargain with the certified union about the subsequent implementation of those practices that entail changes in wages, hours, and other terms and conditions of employment of unit employees. Porta-King Building Systems, 310 NLRB 539, 543 (1993), enfd. 14 F.3d 1258 (8th Cir. 1994); Amsterdam Printing & Litho Corp., 223 NLRB 370, 372 (1976), enfd. 559 F.2d 187 (D.C. Cir. 1977).
The unilateral discretionary assignment of a vacant store
with its commissions to a salesman constituted a change in working conditions
and directly related to wages. By assigning the vacant store without notice to
or bargaining with the
3. Assigned new store to driver
Drivers are paid a base amount plus a commission of .75
percent of the value of the products they deliver. Around August or September,
2000, a large new store, Sedano 28, opened in
President Unanue testified that drivers were not assigned stores but did not deny that stores were assigned to routes. He gave no rationale regarding the manner in which stores were allocated to particular routes. Navarro, who was terminated in late April 2002, testified that the stores on his route that provided him the most commissions were “El Presidente, Wal-Mart, Sedano 28, Publix 586, National 2.” [Emphasis added.]
The assignment of the new store, a store that produced high commissions, to Navarro’s regular route effectively assigned the store to a driver as alleged in the complaint. The assignment constituted a change in working conditions and directly affected the driver’s earnings. The Respondent’s unilateral assignment violated Section 8(a)(5) of the Act.
4. Assigned work to nonbargaining unit employees
Employee Reinol Orta had a regular route in Little Havana for 4 years. In the latter part of 2001, in September and thereafter, Orta noticed occasions when he was not being assigned all of his regular stores. From conversations, including conversations with the drivers delivering to those stores and seeking directions, he learned that some stores on his route were, at various times, being served by drivers “from an office, an agency.”
President Unanue acknowledged that the Respondent utilized drivers from an agency. He testified that “[w]e’ve always had a combination of agency and company drivers.” He did not address the testimony of Orta that bargaining unit work that Orta would have performed had been diverted to agency drivers on various occasions.
The assignment of stores that Orta normally served to agency drivers deprived him of the commissions that he would have received had he delivered to those stores. The Respondent’s unilateral assignment of those stores to nonunit drivers directly affected Orta’s wages and violated Section 8(a)(5) of the Act.
5. Changed work hours of warehouse employees
The parties stipulated that the Company, on August 26, 2001, “changed the start times of the nighttime warehouse employees from 6 p.m. to 5:30 p.m.” The Company argues that the foregoing change was “a routine adjustment without any impact upon any employee. President Unanue testified that “most of the employees would show up early” and that, since work was available, the Company changed the starting time. Notwithstanding the purported insubstantiality of the change, on August 27, 2001, when employee Eduardo Miyares was warned for missing work, he was also reminded that he had been late “on numerous occasions” and that “the starting time is 5:30 p.m. on the dot.”
“It is well established that an employer is prohibited from making changes related to wages, hours, or terms and conditions of employment” without affording the employee collective-bargaining representative an opportunity to bargain, and “[i]t is immaterial that the Respondent’s change may not have been unreasonable.” Flambeau Airmold Corp., 334 NLRB 165, 165–166 (2001). There is no evidence that the change in starting time was “routine,” and the admonition to employee Miyares regarding being late contradicts the Respondent’s argument that the change had no impact upon any employee. By unilaterally changing the starting time of night shift warehouse employees, the Respondent violated Section 8(a)(5) of the Act.
D. The 2002 Allegations
In late April, the Company began assigning drivers to
routes other than the routes that they had regularly driven. Prior to late
April, the drivers who delivered the Company’s food products to various stores
drove the same regular routes. Former employee Rodolfo Chavez, now an Organizer
with the Union, testified that for the last 3 years of his employment he regularly
delivered to stores in the area of
Although the Respondent’s brief asserts that the drivers admitted delivering to distant locations, examination of the testimony confirms that the employees were serving regular routes. When first hired they were assigned distant locations but, as their seniority increased, their routes were, to quote driver Chavez, changed to “a better location,. . . . more commission, less [time].”
President Unanue explained that, in March 2001, the Company began using a computer software system, referred to as Roadnet, that sets up drivers’ routes based upon “a myriad of variables” including such factors as when stores are open to take deliveries and when merchandising employees are available to place delivered merchandise into the store to which the driver has delivered the product. He explained that, prior to the implementation of the Roadnet system, the picking tickets would be generated by a computer, placed in order by a trip planner and thereafter a finished invoice would be produced. With the introduction of the Roadnet system, a trip is “organized before it’s printed out.”
Although testifying that “stores were not assigned” to drivers, President Unanue did not deny that stores were assigned to routes and that, prior to late April, drivers had regular routes.
It appears that the drivers began being assigned to routes
other than their regular routes on April 22. The initial charge in Case
12–CA–22225 states the routes were changed on April 22 and that employee Isain
Navarro’s termination occurred “because of a dispute arising from the Employer’s
unilateral imposition of routes.” The allegations relating to Navarro’s termination
were settled, but contemporaneous documents confirm the unilateral change. On
April 24, Union Organizer William Gonzalez prepared a letter protesting the “illegal
changes [with] respect [to] the routes of each driver.” Although not sent until
April 30, the date of April 24 and content of the letter confirm that the
assignment of drivers to other than their regular routes had occurred by that
date. Also on April 24, the Union distributed a handbill stating that Unanue
had stated, “We distribute in all of
The complaint alleges that the route changes violated both
Section 8(a)(3) and Section 8(a)(5) of the Act, pleading that, since April 25,
2002, the Respondent changed the route assignments of drivers including, but
not limited to, drivers Eduardo Arguello, Reinol Orta, and Miguel Then because
of their union activities. The General Counsel argues that the assignment of
drivers to other than their regular routes resulted from the drivers’ protected
union activity in protesting “discriminatory conduct toward drivers in general
and Navarro in particular.” As already discussed, the assignment of drivers to
routes other than their regular routes was the cause of the protest and the
predicate for the
Following the termination of employee Navarro on April 26, employee Miguel Then and a group of employees sought to speak with President Unanue. Unanue refused to permit the group to enter through the security gate. Then spoke with him by telephone. He recalls that he informed Unanue that a group of workers wanted to talk to him “since he had told me that the door was always open” and that Unanue “told me that instead of being concerned about my job, I was pressuring and bribing the workers and that I was . . . responsible for what was going on and that I knew very well that as a group we did not exist there.” Then responded that he [Unanue] couldn’t say that because “he had lost all the cases he had in court.” At that point, Then recalls that Unanue stated that he had “disrespected him” and hung up.
Unanue acknowledged that Then called, noting the he, Unanue,
had always said that he was available, and stated that he wanted to speak with
him regarding employee Navarro’s discharge. Unanue recalls stating that he “wasn’t
going to discuss that with him or the group, I was not going to discuss it.” Unanue
testified that Then began raising his voice stating that “we had lost, that
there’s a
The complaint alleges that the foregoing conversation “impliedly
threatened employees with discharge due to their union support and activities.”
According to Then, who denied raising his voice, the conversation concluded
with Unanue stated that “we,” referring to the
Regarding the 8(a)(5) allegation relating to the route changes, notwithstanding the Company’s institution of the Roadnet software, the record establishes that, if not all drivers, several drivers including Arguello, Orta, and Then had continued to serve their regular routes until late April when the Company began assigning them to other routes.
Prior to late April, employee Miguel Then had a regular
route in the Hollywood/Dania area. In late April, Then began being sent to
Employee Reinol Orta had a regular route in Little Havana
for 4 years. Beginning about the time that Navarro was terminated, the Company
began to send him to Broward and
Employee Eduardo Arguello had, for over 5 years, had a regular
route on U.S. Highway 1 from
Drivers are informed by telephone each evening by a trip planner of the route they are assigned the following day. Prior to late April, these calls would simply confirm the stores on the driver’s regular route that were scheduled for delivery the following day and give the driver the opportunity to state the order in which he intended to deliver the stores so that the last stop would be the first placed into the truck and the first stop would be at the back. Employee Miguel Then testified that, when the trip planner called, he would “tell them which ones I would do first so that they could set up the truck in the order in which I was going to deliver them.” This ceased in late April at the time that drivers began being assigned other than their regular routes. Even when assigned their regular routes, the Company ceased taking the driver’s request for the order in which his stops were to be loaded. Employee Reinol Orta testified that, “practically immediately” after Navarro was terminated, a trip planner he identified as “Chris,” “communicated that I couldn’t accommodate my route” by placing the stops in order. Eduardo Arguello was also informed by “Christian” that he was “supposed to do the order of stores the way they gave them to us.”
Then explained the impact of this change, noting that recently
his first stop was a Publix grocery store that is located at
President Unanue testified that at no time did any driver have “final authority” to dictate the order in which his truck was loaded and gave one example of an occasion when a driver’s request had not been followed. Notwithstanding the absence of “final authority,” Unanue did not deny that, prior to late April, the drivers, in their informal conversations with the trip planners, would state the order in which they wanted their trucks loaded and that the suggestion would, except in unusual circumstances, be followed.
The Company introduced several documents reflecting that,
prior to April 2002, different drivers had delivered to the same store. Former
employee Chavez explained that, on occasion, he would be unable to serve all of
the stores on his route and that the overflow would be assigned to another
driver. He also noted that there were occasions when a driver could not complete
his route because of the amount of merchandise and that either that driver or
another driver who volunteered would be assigned a “second trip.” Regardless of
the circumstances, the evidence of deliveries by different drivers to the same
store does not contradict the credible testimony of the drivers who testified
before me that, prior to late April 2002, they were assigned regular routes and
were not regularly taken off of those routes to serve distant locations such as
The Company also introduced documents reflecting the commissions earned by drivers in addition to their base pay, comparing their commissions in the year 2000 with the year 2002 and showing that in virtually every case their earnings had increased. The issue, as the testimony of the drivers established, is not only a change in earnings but also a change in working conditions. All confirmed that being assigned to unfamiliar routes increased their working time. Drivers are not compensated for overtime. Furthermore, the relevant inquiry regarding earnings is not that they earned the same or somewhat more but what they would have earned if they had continued to serve their regular routes.
After a respondent incurs a bargaining obligation, it is not privileged to unilaterally change employees’ job assignments insofar as such a change affects an employee’s working conditions. Lawson Printers, 271 NLRB 1279, 1285 (1984).
The Respondent’s assignment of drivers, including but not
limited to Eduardo Arguello, Reinol Orta, and Miguel Then, to routes other than
their regular routes and its failure to permit them to suggest the order in
which they wished their trucks to be loaded changed the working conditions of
these employees. The foregoing changes in the working conditions of employees occurred
without notice to or bargaining with the
Conclusion of Law
By making the unilateral changes in the terms and conditions of employment of its employees as set forth in this decision without giving notice to, and bargaining with, the Union, Respondent violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
The Respondent, having unilaterally assigned bargaining unit work performed by employee Reinol Orta to nonunit agency employees from September through December 2001, it must make him whole for any earnings he lost as a result of those assignments.[6]
The Respondent must rescind the change in the starting time for night shift warehouse employees.
The Respondent having unilaterally changed the job assignments of drivers, including Eduardo Arguello, Reinol Orta, and Miguel Then, by assigning them to routes other than their regular routes, it must make them and any other drivers similarly affected whole for any earnings they lost as a result of this unilateral change, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[7]
ORDER
The Respondent, Goya Foods of Florida,
1. Cease and desist from
(a) Refusing to bargain with UNITE! (Union of Needletrades, Industrial and Textile Employees, AFL–CIO, CLC) as the exclusive collective bargaining representative of its drivers and warehouse employees in the Warehouse Employees and Drivers Unit and its sales representatives and merchandising employees in the Sales Representatives and Merchandising Employees Unit by unilaterally assigning sales representatives to vacant stores and drivers to new stores, by assigning nonunit personnel to perform bargaining unit work previously performed by unit drivers, by changing the reporting time of night shift warehouse employees, by assigning drivers to other than their regular routes, and by ceasing to permit drivers to suggest the order in which merchandise is to be loaded into their trucks.
(b) 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) Rescind the unilateral changes it has made in the terms and conditions of employment of unit employees by assigning bargain unit work to nonunit drivers, changing the starting time of work for night shift warehouse employees, assigning drivers to other than their regular routes, and ceasing to permit drivers to suggest the order in which merchandise is to be loaded into their trucks.
(b) Notify and give the
(c) Make whole Reinol Orta for any loss of earnings he suffered as a result of the assignment of bargaining unit work to agency drivers in the manner set forth in the remedy section of the decision.
(d) Make whole Eduardo Arguello, Reinol Orta, and Miguel Then and any other drivers affected by their assignment to routes other than their regular routes in the manner as set forth in the remedy section of the decision.
(e) 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 determine the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in
(g) 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 of the Act not specifically found.
Dated,
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 with UNITE! (Union of Needletrades, Industrial and Textile Employees, AFL–CIO, CLC) as your exclusive collective-bargaining representative in the warehouse employees and drivers unit and sales representatives and merchandising Employees unit by unilaterally assigning sales representatives to vacant stores and drivers to new stores, by assigning nonunit personnel to perform bargaining unit work previously performed by unit drivers, by changing the reporting time of night-shift warehouse employees, by assigning drivers to other than their regular routes, and by ceasing to permit drivers to suggest the order in which merchandise is to be loaded into their trucks.
We will not in any like or related manner interfere with, restrain, and coerce you in the exercise of rights guaranteed them in Section 7 of the Act.
We will notify
and give the
We will rescind the change we made in the starting time of night-shift warehouse employees, cease assigning drivers to other than their regular routes, and cease refusing to permit drivers to suggest the order in which merchandise is to be loaded into their trucks.
We will make whole Reinol Orta for any loss of earnings he suffered as a result of the assignment of his bargaining unit work to agency drivers, with interest.
We will make whole Eduardo Arguello, Reinol Orta, and Miguel Then and any other drivers affected by their assignment to routes other than their regular routes, with interest.
Goya Foods of