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,
Goya Foods of
July 25, 2008
DECISION AND ORDER
By Chairman Schaumber and
Member Liebman
On January 23, 2008,
Administrative Law Judge Keltner W. Locke issued the attached bench
decision. The Respondent filed
exceptions and a supporting brief, and the General Counsel filed a
cross-exception, a supporting brief, and an answering brief to the Respondent’s
exceptions. The Respondent filed a reply
brief and an answering brief to the General Counsel’s cross-exception.
The National Labor
Relations Board[1] has considered the bench
decision and the record in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,[2] and
conclusions and to adopt the recommended Order as modified below.[3]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the Respondent,
Goya Foods of Florida,
1. Substitute the following for paragraph 1(d).
“(d) 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. Insert the following as paragraph 2(e) and reletter the subsequent paragraphs accordingly.
“(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 analyze the amount of reimbursement to employees due under the terms of this Order.”
3. Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX B
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 inform you that union members cannot participate in a benefit plan, including a retirement and 401(k) plan, made available to other employees.
We will not fail and refuse to furnish, in a timely manner, information requested by the Union which is relevant to and necessary for the Union to perform its duties as your exclusive bargaining representative.
We will not
make changes in your terms and conditions of employment, including your health
insurance coverage and pension plan, without giving the Union prior notice of
such contemplated changes and affording the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will
furnish to the Union, forthwith, the information which the
We will restore to you the pension plan that was in effect before we discontinued it at the end of calendar year 2006.
We will, at
the
We will make you whole for any losses you suffered because of our unlawful unilateral changes, with interest.
Goya Foods of
Karen Thornton, Esq., for the General Counsel.
James C. Crosland, Esq. and David Miller, Esq., for the Respondent.
Mr. Rodolfo Chavez, for the Charging Party.
BENCH DECISION AND CERTIFICATION
Statement of
the Case
Keltner W. Locke, Administrative Law Judge: I heard this case on November 5, 2007, in
i. the
unilateral change allegations
Paragraph 6(a) of the Order Further
Consolidating Cases, Consolidated Complaint and Notice of Hearing (the
Complaint) alleges that on October 6, 2006, the Union requested, by e-mail,
that Respondent furnish the Union with the following information for employees
in each of the bargaining units: A
seniority list, showing name, job title, hire date, pay rate, and amounts and
date of last three pay increases, a complete address and phone listing for each
employee, employee handbook and other employment-related policies, and a copy
of all employee benefit programs, including medical, life, dis-ability,
retirement, and other fringe benefits available to employees, including the
employer and employee cost for each.
Respondent denied these allegations.
Complaint paragraph 6(b) alleged that the
requested information was necessary for, and relevant to, the
Complaint paragraph 6(c) alleges that since
October 6, 2006, the Respondent has failed and refused to furnish the
To establish that Respondent’s refusal to
furnish the information violated Section 8(a)(5) of the Act, the Government
also must prove that the Union is the exclusive bargaining representative of an
appropriate unit of Respondent’s employees, and that the requested information
is relevant to, and necessary for the Union to represent the employees in that
unit. As discussed in the bench
decision, the Board held in three previous cases that the
The General Counsel also must prove that the
requested information is relevant to the
The record also does not disclose any
circumstance which would excuse the Respondent from its duty to provide the
requested relevant information to the
ii. unilateral
implementation of savings and 401(k) plan
For the reasons discussed in the bench
decision, I have concluded that Respondent violated Section 8(a)(5) and (1) of
the Act by changing the terms and conditions of employment for bargaining unit
employees without first notifying the
Based on the record, including the parties’
stipulations during the hearing, I conclude that the General Counsel has proven
the allegations raised by complaint paragraphs 7(a), (b), (c), and (d). Thus, without notifying or bargaining with
the
The Board has long found that pension benefits
constitute future wages and are within the meaning of 8(d)’s terms and
conditions of employment, and are thus a mandatory subject of bargaining. Paul Mueller Co., 335 NLRB 808 (2001),
citing Steelworkers (Inland Steel Co.), 77 NLRB 1,
enfd. 170 F.2d 247 (7th Cir. 1948), cert. denied 336 U.S. 960 (1949).
Respondent’s primary defense, that the
iii. the
separate 8(a)(1) allegation
As discussed above, Respondent unlawfully
discontinued its pension plan and, at the beginning of 2007, established a
retirement and 401(k) plan, as alleged in complaint paragraph 6. The complaint separately alleges that
Respondent, in communicating with its employees about the new plan, made a
statement which independently violated Section 8(a)(1) of the Act.
Specifically, complaint paragraph 8 alleges
that on about November 13, 2006, Respondent announced to its employees, in
writing, that its retirement and 401(k) savings plan excluded union employees,
and that since this date, Respondent has maintained this exclusion of union
employees from its retirement and 401(k) savings plan. Respondent has admitted this allegation.
Respondent’s defense is that management, in
preparing the message to employees, should have used the word “unit” instead of
“union” but mistakenly used the latter because the managers were not familiar
with labor law and did not understand the difference. However, in evaluating whether a statement
unlawfully interferes with, restrains, or coerces employees in the exercise of
Section 7 rights, in violation of Section 8(a)(1), the manager’s intent is
irrelevant. Frankly, so is the manager’s
knowledge or ignorance of the Act. All
that matters is the effect which the statement reasonably would have on
employees.
The Board has held that under most
circumstances, an announcement of benefits restricted to nonunion employees is
a per se violation of the Act.
It is true, of course, that in evaluating the
coerciveness of a statement, the Board considers all the circumstances surround-ing
that statement. See, e.g., Fleming
Cos., 336 NLRB 192 (2001). In this
case, however, those circumstances do not make the statement any less coercive
than it ordinarily would be.
Respondent made the statement—that the
retirement and 401(k) plan excluded union employees—after it had
withdrawn recognition from the
Nothing in the present record suggests that
Respondent has remedied these unfair labor practices, which communicate to
employees that Respondent bears hostility towards the
Accordingly, I conclude that Respondent, by
its conduct described in complaint paragraph 8, violated Section 8(a)(1) of the
Act.
Conclusions of
Law
1. The Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The Respondent violated Section 8(a)(1) of
the Act by informing employees that its retirement and 401(k) plan excluded union
employees.
4. The Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to provide information requested by the
Union, as described in complaint paragraph 6(a), that was relevant to and
necessary for the Union to perform its function as exclusive representative of
bargaining unit employees.
5. The Respondent violated Section 8(a)(5) and
(1) of the Act by eliminating its pension plan for bargaining unit employees
and by replacing it with a retirement and 401(k) plan without giving the Union
prior notice that it contemplated such changes and without affording the Union
an opportunity to bargain about them.
6. The Respondent violated Section 8(a)(5) and
(1) of the Act by changing, on two separate occasions, bargaining unit
employees’ health insurance coverage, without, on either occasion, providing
the Union with prior notice of the contemplated changes and without affording
the Union an opportunity to bargain about them.
7. The Respondent’s actions described in
paragraphs 3 through 8 above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged
in certain unfair labor practices, I conclude that it must be ordered to cease
and desist and to take certain affirmative action designed to effectuate the
policies of the Act. The remedy
provisions recommended below are in addition to, and not in lieu of, the
remedies ordered by the Board in the prior cases involving this Respondent.
In addition to posting the notice to employees
set forth below in Appendix B, Respondent must take the following actions. It must furnish the
Respondent must, at the Union’s request,
restore to bargaining unit employees the health insurance coverage they enjoyed
before Respondent’s unlawful unilateral change in December 2003 or
alternatively, at the Union’s option and at the
Respondent must also restore the pension plan
for bargaining unit employees which it unlawfully discontinued at the end of
the 2006 calendar year. It must also
make bargaining unit employees whole, with interest, for any losses they
suffered because of its unlawful unilateral changes.
The General Counsel has sought a departure
from the method the Board presently uses to compute interest. Specifically, the General Counsel argues that
fully making the employees whole for the losses they suffered requires that
Respondent be ordered to pay interest compounded quarterly.
In Accurate Wire Harness, 335 NLRB 1096
fn. 1 (2001), the Board considered and rejected the General Counsel’s request
for such a remedy. The Board, at any
time, may well decide to revise its formula for the computation of interest
and, indeed, may choose to do so in the present case. However, until then, the Board’s Accurate
Wire Harness precedent controls.
Therefore, I recommend that interest be calculated in the usual manner,
as it was in Goya Foods of Florida, supra, in which the Board ordered
Respondent to pay “interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987), at the ‘short term Federal rate, for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.’”
On the findings of fact and conclusions of
law, and on the entire record in this case, I issue the following recommended
ORDER
The Respondent, Goya Foods of Florida,
1. Cease and desist from
(a) Informing employees that union members
cannot participate in a benefit plan, including a retirement and 401(k) plan,
made available to other employees.
(b) Failing and refusing to furnish, in timely
manner, information requested by the Union which is relevant to and necessary
for the Union to perform its duties as exclusive bargaining representative of
bargaining unit employees.
(c) Making changes in bargaining unit
employees’ terms and conditions of employment, including their health insurance
coverage and their pension plan, without giving the Union prior notice of such
contemplated changes and affording the Union the opportunity to bargain about
them.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Furnish to the Union, forthwith, the
information which the Union requested on October 6, 2006, as described in complaint
paragraph 6(a), together what whatever updates are necessary to make the
information current.
(b) Restore to bargaining unit employees the
pension plan which was in effect before Respondent discontinued it at the end
of calendar year 2006.
(c) At the
(d) Make bargaining unit employees whole for
all losses they suffered because of Respondent’s unlawful unilateral changes
described above in subparagraphs 2(b) and (c).
Such make-whole remedy shall include interest calculated as described in
the “remedy” section of this decision.
(e) Within 14 days after service by the
Region, post at its facilities in
(f) 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 Regional Director attesting to the steps
that the Respondent has taken to comply.
Dated
Appendix A
Bench Decision
This decision is issued pursuant to Section
102.35(a)(10) and Section 102.45 of the Board’s Rules and Regulations. I conclude that Respondent violated Section
8(a)(5) and (1) of the Act by making certain unilateral changes in terms and
conditions of employment without first notifying the Union and offering an
opportunity to bargain, and by failing and refusing to provide the Union with
certain requested, relevant, and necessary information.
Procedural History
This case began on November 13, 2003, when
UNITE HERE, CLC, a labor organization, filed its initial charge in Case
12–CA–23524. For brevity, I will refer
to UNITE HERE, CLC, as the “
The
On November 20, 2006, the
On February 16, 2007, the
On February 23, 2007, the
On July 31, 2007, the Regional Director for
Region 12 of the Board issued an order consolidating cases, consolidated complaint
and notice of hearing in Cases 12–CA–25198, 12–CA–25286, and 12–CA–25305. Respondent filed an answer on August 13,
2007.
On August 30, 2007, the Regional Director
issued an order further consolidating cases, consolidated complaint and notice
of hearing in Cases 12–CA–23524, 12–CA–25198, 12–CA–25286, and
12–CA–25305. For brevity, I will refer
to this pleading simply as the “complaint.”
The Regional Director amended it on October 2, 2007. Respondent filed timely answers to the complaint
and the amendment.
In issuing the complaint, the Regional
Director acted for, and with authority delegated by the Board’s General
Counsel, whom I will refer to as the “General Counsel” or the Government.
A hearing opened before me in
Background
Respondent argues, as an affirmative defense
to the 8(a)(5) allegations, that it lawfully withdrew recognition from the
In Goya Foods of Florida, 347 NLRB 1118
(2006), the Board made findings and reached conclusions binding in this
proceeding. Those findings and
conclusions include the following, which I adopt as res judicata in the present case:
1. Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. UNITE HERE, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. On October 26, 1998, the Board certified
the
All full-time and regular part-time drivers, forklift operators, production, maintenance and warehouse employees, employed by the Employer at its facility located at 1900 NW 92nd Avenue, Miami, Florida 33172; excluding all other employees, employees employed by outside agencies and other contractors, office clerical employees, managerial employees, guards and supervisors as defined in the Act.
4. On December 4, 1998, the Board certified
the
All sales
representatives and merchandising employees employed by the Employer at its
facility located at
5. In December 1999, Respondent withdrew
recognition from the
Although Respondent has admitted that it
withdrew recognition from the
In Goya Foods of Florida, 350 NLRB No.
74 (2007), the Board made further findings and reached further conclusions
which, to some degree, are relevant here.
The Board rejected Respondent’s argument that it had lawfully withdrawn
recognition from the Union as the exclusive representative of the bargaining
units of sales employees and warehouse employees described in the present complaint
and in Goya Foods of Florida, above. The Board also rejected Respondent’s
argument that it lawfully could assign unit employees to routes and stores
without notifying and bargaining with the
In Goya Foods of Florida, 351 NLRB No.
13 (2007), the Board again rejected Respondent’s argument that it had lawfully
withdrawn recognition from the
Admitted Allegations
In its answer, Respondent admits a number of
allegations. Based on those admissions I
make the following findings. Respondent
has admitted that the unfair labor practice charges were filed and served as
alleged in complaint paragraphs 1(a) through (h) and I so find.
Respondent also admits that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act. In keeping with this admission and
the Board’s conclusions in the earlier Goya Foods cases, I so find.
Additionally, based on Respondent’s
admissions, I find that the individuals named in complaint paragraph 4 are
Respondent’s agents within the meaning of Section 2(13) of the Act, and that
all but Carlos Unanue, president, Goya of Puerto Rico, are Respondent’s
supervisors within the meaning of Section 2(11) of the Act.
Respondent has admitted, and I find, that the
Respondent has admitted the allegations in complaint
paragraph 8 that on about November 13, 2006, it announced to its employees, in
writing, that its retirement and 401(k) savings plan excluded union employees,
and since that date has maintained this exclusion of union employees from its retirement
and 401(k) savings plan. Based on this
admission, I find that the General Counsel has proven the allegations in complaint
paragraph 8.
Respondent’s Answer admits that in about the
second week of October 2003, it notified its employees that it would be
changing its group health insurance, as alleged in complaint paragraph
9(a). I so find.
Contested Allegations
Changes in Group Health Insurance
Complaint paragraph 9(b) alleges that on about
December 1, 2003, Respondent changed its group health insurance for employees
in both collective-bargaining units.
This paragraph further alleges that the changes included but were not
limited to changes in providers, copayments, coverage, out-of-pocket maximums,
premiums, out-of-network coverage, prescription coverage, and prescription
copayments. Complaint paragraph 9(c)
alleges that Respondent made similar changes on January 1, 2005.
The parties have stipulated that until
November 30, 2003, Respondent offered group health insurance to its bargaining
unit employees through Blue Cross/Blue Shield, which I will refer to as “Blue
Cross” and that it was an HMO (health maintenance organization) plan. They further stipulated that effective
December 1, 2003, Respondent changed the group health insurance coverage from
Blue Cross to Neighborhood Health Partnership, which I will refer to as “Neighborhood,”
and that it was an HMO plan. This plan
remained in effect through December 31, 2004.
I so find.
Additionally, the parties stipulated that
effective January 1, 2005, Respondent changed the health insurance coverage
from Neighbor to AvMed Health Plans, which I will call AvMed, and that this
coverage continued in effect at the time of the stipulation. I so find.
Based on the parties’ stipulations, I conclude
that the General Counsel has proven the allegations set forth in complaint
paragraphs 9(b) and (c).
Complaint paragraph 9(e) alleges that
Respondent made these changes without prior notice to the Union and without affording
the
Complaint paragraph 9(d) alleges that the
subjects described in complaint paragraphs 9(a), (b), and (c) are mandatory
subjects of bargaining, which Respondent denies. However, the Board has held that like wages,
health insurance is a mandatory subject of bargaining. See Wire Products Mfg.
Corp., 329 NLRB 155 (1999); and Dynatron/Bondo Corp., 323 NLRB 1263
(1997). Further, like wages, it is considered an important term and condition
of employment. KSM Industries, 336
NLRB 133 (2001). Accordingly, I conclude
that the General Counsel has proven the allegations set forth in complaint paragraph
9(d).
In sum, Respondent has admitted that it made
changes in health insurance without notifying and bargaining with the
Accordingly, Respondent’s conduct violated the
Act if the caused a material, substantial and significant change in terms and
conditions of employment. Comparing the
provisions of the Blue Cross, Neighborhood, and Avmed health plans, Respondent
argues that the change was not material, substantial, and significant.
The terms of these three health plans are not
identical, but Respondent argues, in effect, that on balance the terms are
equivalent. For example, the Blue Cross
plan required a covered individual to go to a primary care physician first
before being referred to a specialist, but the Neighborhood plan allowed the
person to go directly to the specialist.
An unlawful unilateral change can cause two
kinds of harm. In all cases, such an
unlawful change damages the union’s ability to negotiate concerning the terms
and conditions of employment of the employees it represents. This primary harm deprives employees of their
voice in determining their working conditions.
An unlawful unilateral change also may cause
secondary harm if it adversely affects unit employees’ working conditions. This secondary harm certainly must be
remedied. However, the absence of such secondary
harm does not legitimize the unlawful change.
Suppose, for example, that an employer granted
employees a $10-per-hour wage increase without notifying the exclusive
bargaining representative. That change
does not adversely affect employees’ paychecks but it does deny them the right
to have their union represent them concerning a basic condition of employment,
their pay. Thus, such a change is
profoundly significant.
As the Board observed in Crittenton
Hospital, 342 NLRB 686 (2004), a
change is measured by the extent to which it departs from the existing terms
and conditions affecting employees.” Southern California Edison Co., 284 NLRB 1205 fn. 1 (1987), enfd. mem.
852 F.2d 572 (9th Cir. 1988).
As noted, Respondent argues that changing to
an open access health insurance plan, one that did not require referral by a
primary care physician, was “in itself, is a very high level benefit which
offsets any increase in out-of-pocket expenses.” That argument, however, makes an assumption
about what unit employees would desire, and Respondent is not in a position to
make such an assumption. Respondent’s
argument that changing to an open access plan was a “very high level benefit”
effectively admits that this change was material, substantial, and significant. Accordingly, I conclude that it did
constitute an unlawful unilateral change.
Respondent’s contention that it was just
continuing a well-established past practice essentially repeats the argument
which the Board rejected in previous cases.
Respondent cannot use what it did as a past practice before the
Additionally, I reject the argument that
Respondent had no choice in the matter.
It could have done several things besides switch health plans, provided
that it bargained with the
The complaint also alleges that Respondent
failed and refused to provide the
In the certification of bench decision, I will
address additional allegations in the complaint pertaining to the announcement
described in complaint paragraph 8, that union employees would be excluded from
a retirement and 401(k) plan.
Additionally, I will address in that certification the General Counsel’s
request that the remedy include compound interest.
When a transcript of this proceeding has been
prepared, I will issue this certification, which will attach as an appendix the
portion of the transcript reporting this bench decision. The certification also will include
provisions relating to the findings of fact, conclusions of law, remedy, order,
and notice. When that certification is
served upon the parties, the time period for filing an appeal will begin to run.
Throughout this proceeding, counsel had
displayed the highest standards of civility and professionalism, which have
been noted and appreciated. The hearing
is closed.
APPENDIX
B
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 interfere with, restrain or coerce our
employees in the exercise of these rights guaranteed to them by Section 7 of the
Act.
We will not inform our employees that union members may
not participate in an employee benefit plan, such as a retirement and 401(k)
plan, in which other employees participate.
We will not fail and refuse to provide information
requested by the Union, UNITE HERE, CLC, which is relevant to and necessary for
the Union to perform its duties as exclusive bargaining representative.
We will not change the terms and conditions of employment
for bargaining unit employees without providing the Union with prior notice of
the proposed changes and giving the
We will not in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
We will furnish to the Union, forthwith, the
information which the
We will restore to bargaining unit employees the
pension plan which was in effect before Respondent discontinued it at the end
of calendar year 2006.
We will, at the
We will make bargaining unit employees whole, with
interest, for all losses they suffered because we unlawfully eliminated the
pension plan and unlawfully changed their health insurance coverage.
Goya Foods of