Capay, Inc. d/b/a Farm Fresh to You

National Labor Relations Board - Unpublished Board Decisions

Aug 1, 2019

20-CA-215451 (N.L.R.B. Aug. 1, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CAPAY, INC. D/B/A FARM FRESH TO YOU
and Cases 20-CA-215451
20-CA-215489
20-CA-215497
20-CA-222184
20-CA-224294
BAKERY, CONFECTIONARY, TOBACCO
WORKERS & GRAIN MILLERS UNION, LOCAL 85
DECISION AND ORDER
Statement of the Cases
On February 21, 2019, Capay, Inc. d/b/a Farm Fresh to You (the Respondent),
Bakery, Confectionary, Tobacco Workers & Grain Millers Union, Local 85 (the Union),
and the General Counsel of the National Labor Relations Board entered into a Formal
Settlement Stipulation, subject to the Board’s approval, providing for the entry of a
consent order by the Board and a consent judgment by any appropriate United States
Court of Appeals. The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations Act and the
Board’s Rules and Regulations, and the Respondent waived its right to contest the entry
of a consent judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C.,
for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
1. The Respondent’s business
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(a) At all material times, the Respondent has been a California corporation with
an office and place of business in West Sacramento, California and has been engaged
in the packaging, shipping and retail sale of produce.
(b) During the calendar year ending December 31, 2017, the Respondent, in
conducting its business operations, derived gross revenues in excess of $500,000 and
purchased and received at its West Sacramento, California facility goods valued in
excess of $5,000 directly from sources outside the State of California.
(c) At all material times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization involved
At all material times, the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that:
The Respondent, Capay, Inc. d/b/a Farm Fresh to You, West Sacramento,
California, its officers, agents, successors, and assigns, shall:
A. Cease and desist from:
1. Suspending, discharging, demoting, or making unilateral changes to the terms
and conditions of employment of the employees in the following appropriate unit (the
unit) without first giving notice and an opportunity to bargain in good faith with the
Bakery, Confectionery, Tobacco Workers & Grain Millers Union, Local 85 (the Union) as
the exclusive collective-bargaining representative of the unit:
All full-time and regular part-time warehouse employees employed
by Respondent at its facility located at 3880 Seaport Boulevard,
West Sacramento, California, including packers, lead packers,
prepping, and lead prepping employees, and excluding
maintenance, shipping, clerical, supervisory, and guard employees
as defined by the Act.
2. Changing Personnel Policies without first giving the Union notice and an
opportunity to bargain about the change.
3. Issuing discipline to employees based on inconsistent application of the
Bathroom Break Policy.
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4. Inconsistently applying the number of errors an employee is allowed to make
per week prior to receiving discipline (Error Policy) without first giving the Union notice
and an opportunity to bargain.
5. Issuing discipline to employees based on the inconsistent application of the
Error Policy.
6. Discharging, suspending or demoting employees without first giving the Union
notice and an opportunity to bargain over the discharge, suspension, or demotion.
7. Denying injured employees modified duty because of their union membership
or support, or because they engage in protected concerted activity.
8. Maintaining a policy that denies off-duty employees access to the worksite
without prior authorization from their supervisor.
9. Denying off-duty employees access to the worksite because of their protected
concerted activity.
10. Interfering with employee Section 7 rights by directing employees not to
speak with other employees on break time, directing employees not to speak about non-
work-related matters, denying employees the right to speak with other employees,
interfering with employee break times, sequestering employees from other employees,
or imposing more onerous working conditions on employees.
11. Engaging in surveillance of employees’ protected concerted activity, not to
include the legitimate use of video cameras throughout the facility to preserve food
safety.
12. Threatening employees with reprisals for engaging in protected concerted
activity.
13. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights.
B. Take the following affirmative action necessary to effectuate the policies of
the Act.
1. Upon the Union’s request, rescind the prohibition against unit employees
using the restroom when their Lead is not in the production area to grant permission,
and provide the Union the opportunity to bargain over the Bathroom Break Policy.
2. Remove from the Respondent’s files all references to the discipline issued to
Leticia Aracely Bribiesca and any other employees based on the inconsistent
application of the Bathroom Break Policy and notify the employees in writing that this
has been done and that the discipline will not be used against them in any way.
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3. Upon the Union’s request, revert the Error Policy to allow unit employees four
(4) errors per week before being subject to discipline and provide the Union an
opportunity to bargain over the Error Policy.
4. Remove from the Respondent’s files all references to discipline issued under
the inconsistent application of the Error Policy to employees who made four (4) or less
errors per week, including, but not limited to, the discipline referenced in subparagraph
7(g) of the Consolidated Complaint, and notify the employees in writing that this has
been done and that the discipline will not be used against them in any way.
5. Immediately, and no later than five (5) days from the approval of this
Stipulation, provide the Union with an opportunity to bargain over paycheck distribution
dates until agreement or impasse is reached.
6. Provide advance notice to the Union and, upon the Union’s request, bargain
in good faith with the Union before discharging, suspending or demoting any unit
employees, unless exigent circumstances prevent such notice.
7. Remove from the Respondent’s files all references to the Respondent’s
January 24, 2018, suspension of Leticia Aracely Bribiesca without giving the Union
notice and an opportunity to bargain, make her whole for any wages and other benefits
she may have lost because the Respondent suspended her without giving the Union
notice and an opportunity to bargain about the suspension, and notify her in writing that
this has been done and that the suspension will not be used against her in any way.
Bribiesca did not lose any wages or benefits as a result of her suspension.
8. Within fourteen (14) days of the issuance of the Board’s Order, make
Rosalba Cecilia Reyes whole for any wages and other benefits she may have lost
because the Respondent denied her modified duty, which has been offset by the
temporary disability benefits she received through the Workers’ Compensation Appeals
Board, by paying her $2,105.81, less appropriate withholdings. The Respondent
shall complete and file with the Regional Director for Region 20 a report for the
Social Security Administration provided by Region 20 allocating the backpay to
the appropriate calendar year, which Region 20 will transmit to the Social
Security Administration.
9. Revise the policy that denies off-duty employees access to the worksite
without prior authorization from their supervisor to make it consistent with current Board
law and give the Union notice and the opportunity to bargain over the revision.
10. Within fourteen (14) days of service by the Region, post at its facility in West
Sacramento, California, copies of the attached Notice (Notice) marked "Appendix A."
Copies of the Notice, on forms provided by Region 20, after being signed by the
Respondent's authorized representative, shall be posted for a period of sixty (60) days,
in conspicuous places, including all places where notices to its employees are normally
posted. The Respondent will take reasonable steps to ensure that the notices are not
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altered, defaced or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed its
facility in West Sacramento, California, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former unit employees
employed by the Respondent at any time since October 1, 2017.
11. Within twenty (20) days of the issuance of the Board 's Order, file with the
Regional Director of Region 20 of the Board, a sworn affidavit from a responsible official
describing with specificity the manner in which the Respondent has complied with the
terms of the Board's Order, including the locations of the posted documents.
Dated, Washington, D.C., August 1, 2019.
___________________________________
John F. Ring, Chairman
___________________________________
Lauren McFerran, Member
___________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative 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 do anything to prevent you from exercising the above rights.
WE WILL NOT suspend, discharge, demote, or make unilateral changes to the terms
and conditions of employment of you employees in the following appropriate unit (the
unit) without first giving notice and an opportunity to bargain in good faith with the
Bakery, Confectionery, Tobacco Workers & Grain Millers Union, Local 85 (the Union)
as the exclusive collective-bargaining representative of the unit:
All full-time and regular part-time warehouse employees employed by
Respondent at its facility located at 3880 Seaport Boulevard, West
Sacramento, California, including packers, lead packers, prepping, and
lead prepping employees, and excluding maintenance, shipping, clerical,
supervisory, and guard employees as defined by the Act.
WE WILL NOT change our Personnel Policies applicable to you without first giving the
Union notice and an opportunity to bargain about the change.
WE WILL NOT discipline you based on inconsistent application of our Bathroom Break
Policy.
WE WILL NOT inconsistently apply the number of errors you are allowed to make per
week prior to receiving discipline (Error Policy) without first giving the Union notice and
an opportunity to bargain.
WE WILL NOT discipline you based on the inconsistent application of the Error Policy.
WE WILL NOT discharge, suspend, or demote you without first giving the Union
notice and an opportunity to bargain over the discharge, suspension, or demotion.
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WE WILL NOT deny you modified duty because of your union membership or support,
or because you engage in protected concerted activity.
WE WILL NOT maintain a policy that denies off-duty employees access to the worksite
without prior authorization from their supervisor.
WE WILL NOT deny you access to the worksite because of your protected concerted
activity.
WE WILL NOT interfere with your Section 7 rights by directing you not to speak with
other employees on break time, directing you not to speak about non-work-related
matters, denying you the right to speak with other employees, interfering with your
break times, sequestering you from other employees, or imposing more onerous
working conditions on you.
WE WILL NOT engage in surveillance of your protected concerted activity (not to
include the legitimate use of video cameras throughout the facility to preserve food
safety).
WE WILL NOT threaten you with reprisals for engaging in protected concerted activity.
WE WILL NOT, in any like or related manner interfere with, restrain, or coerce you in
the exercise of your Section 7 rights.
WE WILL, upon the Union's request, rescind the prohibition against unit employees
using the restroom when their Lead is not in the production area to grant permission,
and provide the Union the opportunity to bargain over the Bathroom Break Policy.
WE WILL remove from our files all references to the discipline issued to Leticia
Aracely Bribiesca and any other employees based on the inconsistent application of
the Bathroom Break Policy and notify the employees in writing that this has been done
and that the discipline will not be used against them in any way.
WE WILL, upon the Union's request, revert the Error Policy to allow unit employees
four errors per week before being subject to discipline and provide the Union an
opportunity to bargain over the Error Policy.
WE WILL remove from our files all references to discipline issued under the
inconsistent application of the Error Policy to employees who made four (4) or less
errors per week, including, but not limited to, the discipline referenced in
subparagraph 7(g) of the Consolidated Complaint, and we will notify the employees in
writing that this has been done and that the discipline will not be used against them in
any way.
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WE WILL immediately, and no later than five (5) days from the approval of this
Stipulation, provide the Union with an opportunity to bargain over paycheck distribution
dates until agreement or impasse is reached.
WE WILL provide advance notice to the Union and, upon the Union's request, bargain
in good faith with the Union before discharging, suspending or demoting any unit
employees, unless exigent circumstances prevent such notice.
WE WILL remove from our files all references to the January 24, 2018, suspension of
Leticia Aracely Bribiesca without giving the Union notice and an opportunity to
bargain, make her whole for any wages and other benefits she may have lost because
we suspended her without giving the Union notice and an opportunity to bargain about
the suspension, and notify her in writing that this has been done and that the
suspension will not be used against her in any way.
WE WILL make Rosalba Cecilia Reyes whole for any wages and other benefits she
may have lost because we denied her modified duty, to be offset by any temporary
disability benefits she received through the Workers' Compensation Appeals Board.
WE WILL revise the policy that denies off-duty employees access to the worksite
without prior authorization from their supervisor to make it consistent with current
Board law, and give the Union notice and the opportunity to bargain over the revision.
WE WILL NOT, in any like or related manner, interfere with your rights under Section
7 of the Act.
CAPAY, INC. D/B/A FRESH FOOD TO YOU
The Board’s decision can be found at www.nlrb.gov/case/20-CA-215451 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
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