EASTLAND FOOD PRODUCTS, INC.

National Labor Relations Board - Administrative Judge Opinions

Mar 1, 2017

01-CA-182772 (N.L.R.B. Mar. 1, 2017)

JD–12–17
Cranston, R.I.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EASTLAND FOOD PRODUCTS, INC.
and Case 01–CA–182772
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, LOCAL 328
Elizabeth Vorro, Esq.,
for the General Counsel.
Thomas McAndrew, Esq.,
for the Respondent
Marc Gursky, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ANDREW S. GOLLIN, Administrative Law Judge. This case was tried before me in
Providence, Rhode Island on January 24, 2017, pursuant to a November 30, 2016 complaint
and notice of hearing issued by the Regional Director for Region 1 (Boston) of the National
Labor Relations Board (the Board).1 The complaint and notice of hearing alleges Eastland Food
Products, Inc. (Respondent or Company) violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by refusing to conduct a scheduled plant tour and by refusing to meet
and bargain with the United Food and Commercial Workers International Union, Local 328
(Union) over an initial collective-bargaining agreement, so long as Adrian Ventura, a community
organizer not employed by Respondent or the Union, remained a member of the Union’s
bargaining committee. Respondent filed a timely answer denying the substantive allegations
and raising a number of affirmative defenses. The facts are largely undisputed.2
As explained more fully below, under Board law, when an employer refuses to bargain
because it objects to a member of the union’s bargaining committee, it bears the heavy burden
of establishing the member poses “a clear and present danger” to the collective-bargaining
process. Respondent contends Ventura poses such a danger because he, as member of the
Union’s bargaining committee, would be privy to confidential, proprietary information about

1 All dates are in 2016, unless otherwise indicated. On December 19, the Regional Director petitioned
the United States District Court for the District of Rhode Island for a temporary injunction under Sec. 10(j)
of the Act. On January 11, 2017, the District Court issued an order granting the Regional Director’s
petition. The District Court ordered Respondent to resume bargaining with the Union.
2 The parties agreed to 24 Joint Exhibits. The Joint Exhibits are identified as “Jt. Exh.” The exhibits for
the General Counsel are identified as “GC Exh.” The briefs are identified as “GC Br.” and “R. Br.” The
hearing transcript is referenced as “Tr.” Specific citations to the record are provided to aid review, and
are not necessarily exclusive or exhaustive.
JD–12–17
2
Respondent’s operations and processes, which if he disseminated would cause Respondent to
lose its competitive advantage. Respondent’s contention, however, is entirely speculative,
because there is no evidence Ventura had any intent or plan to gather or disseminate
confidential or proprietary information. Respondent, therefore, has failed to meet its burden for
cancelling the scheduled plant tour and for refusing to meet and bargain with the Union, so long 5
as Ventura remained part of the Union’s bargaining committee.
All parties were afforded a full opportunity to appear, introduce evidence, examine, and
cross-examine witnesses, argue orally on the record, and file posthearing briefs. After carefully
considering the entire record, including the demeanor of the witnesses and Respondent’s and
the General Counsel’s posthearing briefs, I find that Respondent violated the Act as alleged in 10
the complaint.3
FINDINGS OF FACT
Jurisdiction and Labor Organization Status
Respondent is a Rhode Island corporation with an office and place of business located
at 69 Fletcher Avenue, Cranston, Rhode Island (the Cranston facility), where it engages in the 15
operation of a fresh food processing plant. In conducting its operations, Respondent annually
purchases and receives goods valued in excess of $50,000 directly from points outside the
State of Rhode Island. Respondent admits, and I find, that it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. (GC Exh. 1). Respondent
also admits, and I find, that the Union has been a labor organization the meaning of Section 2(5) 20
of the Act. Based on the foregoing, I find that this dispute affects commerce, and that the Board
has jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
1. Background
At its Cranston facility, Respondent receives, cleans, cuts, and packages ready-to-eat 25
fresh fruit and vegetables, which it then distributes to grocers and retail customers. Respondent
started as a family business over 50 years ago. Antonio (Tony) DeMarco III is a member of the
founding family, and Respondent’s owner and the treasurer. Dayne Wahl is vice president and
general manager. Tom Glasgow is plant manager. There are approximately 125 employees at
the plant. Most of the employees are Spanish-speaking immigrants, primarily from Central 30
American countries such as Guatemala. Some of the Guatemalan employees speak K’iche as
their primary language, but also speak Spanish.4
Centro Comunitario de Trabajadores (CCT) is a nonprofit community-based
organization serving low wage immigrant workers in the greater New Bedford, Massachusetts
area. According to its website, CCT seeks to protect these low wage immigrant workers from 35
unfair and unsafe working conditions. CCT’s board and staff are comprised entirely of Central

3 In making credibility findings, all relevant factors have been considered, including the interests and
demeanor of the witnesses; whether their testimony is corroborated or consistent with the documentary
evidence and/or the established or admitted facts; inherent probabilities; and reasonable inferences that
may be drawn from the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 633 (2001), enfd. 56
Fed.Appx. 516 (D.C. Cir. 2003); and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.
1997), cert. denied 522 U.S. 948 (1997).
4 K’iche is a Mayan language that is indigenous to the central highlands of Guatemala.
JD–12–17
3
American immigrants. Its members primarily work for local seafood processing, garment, and
recycling companies, many through temporary employment agencies. CCT has worked to
“combat flagrant abuses of workers’ rights such as wage theft, health and safety violations,
discrimination, sexual harassment and retaliation against employees who speak up and
organize.” (Jt. Exh. 23.) Adrian Ventura is CCT’s executive director.55
2. Organizing and election
In 2016, a group of Respondent’s employees contacted Ventura, a Guatemalan
immigrant who speaks both K’iche and Spanish, to discuss workplace issues, including
allegations of sexual harassment, safety concerns, and nonpayment of overtime. Ventura met
with the employees and attempted to help them.6 In their discussions, the employees and 10
Ventura talked about organizing a union.
In mid-April, Ventura spoke with Megan Carvalho, the Union’s director of organizing.7
Ventura is not an employee of the Union, but he has helped the Union with other organizing
campaigns, including one of a tire recycling company.8 Following her conversations with
Ventura, Carvalho, and her staff launched an organizing campaign, which included holding 15
meetings for Respondent’s employees. Ventura attended these meetings, and he also
translated what was being said into K’iche.
After the Union filed a representation petition, an election was held on May 19.9 On May
27, the Regional Director for Region 1 certified the Union as the collective-bargaining
representative for the following unit:20
All full-time and regular part-time production, packaging, general preparation,
maintenance mechanics, sanitation, drivers, shipping and receiving, and quality
assurance employees employed by [Respondent] at its Cranston, Rhode Island
facility located at 69 Fletcher Avenue, Cranston Rhode, Island, excluding
managerial and professional employees, clerical employees, guards, and 25
supervisors as defined by the Act.
3. Bargaining sessions
Following certification, the parties exchanged correspondence.10 In June or July, the
parties held an informal “meet-and-greet” breakfast at an area restaurant. Present at the
meeting were DeMarco, Wahl, Respondent’s attorney, Thomas McAndrew, Union President 30

5 Neither Ventura nor any other representative from CCT was called to testify at the hearing in this case.
Aside from pages from the CCT website, there was little evidence introduced regarding this entity.
6 On April 14, Ventura helped one of the employees, Cesario Ixcund, prepare a letter to Respondent
requesting a meeting to discuss these and other issues. The letter was on CCT’s letterhead. (GC Exh.
2.) Ventura also participated, along with union officials, at rallies held outside of Respondent’s facility.
7 CCT has no formal affiliation with the Union. According to Carvalho and Melia, CCT is a community
organization the Union has worked with as part of its organizing efforts.
8 Ventura has since begun working with the Union as a “contractor” or “consultant,” but he was not paid
for any work he performed during the organizing campaign of Respondent or the tire recycling company.
9 Ventura was present for the ballot count, but he was never introduced or identified to any of
Respondent’s managers or supervisors.
10 A number of the Joint Exhibits reflect communication between Respondent and the Union relating to
the Union’s role as collective-bargaining representative, and Respondent’s acknowledgement and
compliance with those obligations. (Jt. Exhs. 2–7, 11, and 14).
JD–12–17
4
Timothy Melia, Union Secretary/Treasurer Domenic Pontarelli, and Carvalho. Ventura did not
attend, nor did any of the employee members of the Union’s bargaining committee. Nothing
substantive was discussed at this meeting. The parties never established any ground rules for
bargaining at this or any other meeting at issue.
On July 22, the parties met for their first bargaining session at the Federal Mediation and 5
Conciliation Services (FMCS) building in Warwick, Rhode Island. Participating on behalf of
Respondent were DeMarco, Wahl, and Attorney McAndrew. Participating for the Union were
Melia, Carvalho, Union Attorney Marc Gursky, Elena Hernandez (employee), Cesario Ixcund
(employee), and Victor Castro (employee).11 Adrian Ventura also was present. Up to this point,
Ventura was never introduced or identified to Respondent’s representatives.1210
There is some dispute, but it appears that everyone, except for Ventura, Ixcund, and
Castro, sat at a large conference room table. Ventura, Ixcund, and Castro sat in chairs on the
side near the table. Ventura limited his communications to the employee members of the
Union’s bargaining committee. He never said anything across the table or to any of
Respondent’s bargaining committee members. The meeting got off to a late start, so there were 15
no formal introductions. But all of the participants signed in, and the sign-in sheet was copied
and given to both sides.
Most of the July 22 meeting was spent with the Union, through Melia, presenting and
explaining its noneconomic contract proposals. The parties caucused separately. Respondent
did not make any proposals or counterproposals. At the end of the meeting, the parties 20
discussed scheduling further sessions. During this discussion, Melia requested that members
of the union bargaining committee be allowed to tour Respondent’s facility to familiarize
themselves with Respondent’s operations to help the Union prepare for bargaining. Wahl
agreed to the tour.13 There was no discussion of confidential or proprietary information, and no
discussion of having anyone sign a confidentiality agreement before taking the tour. Both the 25
tour and the bargaining session were scheduled for August 24. The bargaining session was
scheduled to take place after the plant tour, back at the FMCS’s offices in Warwick.
During the caucuses on July 22, Wahl privately discussed with DeMarco and McAndrew
his discomfort with not knowing who the individual sitting next to Ixcund and Castro was, and
why he was there. McAndrew told him he would address it with the Union’s attorney after the 30
meeting, so as not to embarrass anyone. As planned, at the end of the meeting, Attorney
McAndrew asked to speak with Gursky and Melia. They stepped out of the conference room.
DeMarco and Wahl were nearby.
DeMarco, Wahl, and Melia each testified about this sidebar conversation. DeMarco
recalled McAndrew asked Gursky and Melia who Ventura was and why he was there. DeMarco35
could not recall what was said in response, other than that Attorney Gursky said he did not
know who he was and something like, “Nobody liked the guy.” Although DeMarco could not
recall what was said, he testified he left with the impression that Ventura would not be present
on August 24. (Tr. 158; 181–182.) Wahl recalled that McAndrew asked who Ventura was and

11 The Union also had a translator (Carlos Gonzalez) there to translate what was being said into Spanish
for the employee members of the Union’s bargaining committee.
12 Both DeMarco and Wahl testified that Ventura’s face looked familiar from one or more of the rallies held
outside of Respondent’s facility, but that neither knew who he was.
13 Wahl initially proposed to have the tour on a Friday, but the employees informed the Union that the
plant usually is shutdown or not fully operational on Fridays, so the Union requested, and Wahl agreed, to
have the plant tour on a Wednesday, when the facility would be operating.
JD–12–17
5
why was he there, and Mursky said something like, “Nobody likes him.” Wahl testified that he
too left with the impression that Ventura would not be present on August 24, but he confirmed
no one explicitly said that. (Tr. 204; 228–229). Melia recalled that Attorney McAndrew asked
who Ventura was and why he was there, and Melia told them Ventura was part of the Union’s
bargaining committee. In response to leading questions, Melia testified that neither he nor 5
Attorney Gursky agreed that Ventura would not be present on August 24. (Tr. 109–110.)14
On August 24, Attorney Mursky, President Melia, and Union Secretary/Treasurer
Dominic Pontarelli arrived at Respondent’s facility for the scheduled tour. They were given a
parking pass, told to park, and then Wahl escorted them to the upstairs conference room, where
Attorney McAndrew was already waiting.15 Carvalho then arrived in her car with employee 10
Elena Hernandez. Wahl gave Carvalho a parking pass and told her to park. She parked her
car, and Wahl then escorted Carvalho and Hernandez to the upstairs conference room to wait
with the others. Victor Castro later arrived in the conference room.
At some point, before the tour was set to begin, Wahl saw Ventura walking through the
Company’s parking lot toward the building. He went back into the conference room very upset. 15
He said to Melia and Mursky that he thought they had agreed that Ventura was not going to be
coming. Wahl stated he was not going to allow Ventura into the building, and he made
reference to Respondent’s confidential or proprietary information. But he did not provide any
specifics as to what he was referring to when he made this reference.16
The Union bargaining committee then met outside of the conference room. The 20
employee members of the committee stated they wanted to have Ventura there, and one of the
employees was prepared to call a “strike” if Ventura was not allowed to participate. The Union
committee then went back into the conference room and told Respondent’s representatives that
Ventura was part of their bargaining committee, and they wanted him there. McAndrew made it
clear that Respondent was not going to meet or bargain so long as Ventura was present.17 The 25

14 I credit the testimony of Melia over DeMarco and Wahl about the contents of this conversation. Melia
had a clearer recollection of what was actually said versus the impressions people may have left with
following the exchange. Additionally, DeMarco and Wahl were a few steps away from the others while
the conversation took place. As such, I credit Melia that the Union never agreed Ventura would not be
present for the tour or for bargaining on August 24.
15 There was no evidence presented regarding the security at Respondent’s plant. The only information
is that visitors who drive there obtain a pass in order to park in Respondent’s parking lot and that delivery
drivers are not allowed inside the plant.
16 Respondent did not articulate what specific information Ventura would have access to that is
confidential or proprietary. During his testimony, Wahl generally referred to the proprietary nature of the
facility layout, custom-made equipment, and specialized processes—all of which he considered
proprietary and what made Respondent unique. When DeMarco was asked whether anyone is required
to sign a confidentiality agreement prior to working at the facility, he said only Wahl. When DeMarco was
asked why the employees were not asked to sign such agreements, he said that they were minimum
wage employees and they have limited jobs, and he did not think such agreements would be enforceable
against these hourly employees. He added that these hourly employees do not have access to the
information that he, Wahl and the other upper managers have. When pressed, DeMarco confirmed that if
Ventura were allowed access he would see what these hourly employees see. (Tr. 173-174.)
17 Wahl testified he has no knowledge that Ventura or CCT have ever disclosed information about
companies they have dealt with, and there is no specific situation to which he was referring to justify his
concerns. He said his unfamiliarity with CCT was what concerned him. (Tr. 240–241). Wahl also stated
he was concerned with Ventura being involved in bargaining because he was “friends” with the workers.
(Tr. 209, 236.) But he did not provide any further explanation.
JD–12–17
6
Union representatives then left the plant, and the Union later filed the present charge. There
was no further bargaining prior to the hearing.
ANALYSIS
1. Allegations and Legal Authority5
Paragraphs 13 and 14 of the complaint and notice of hearing allege that since about
August 24, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to conduct
the scheduled tour and by refusing to meet and bargain with the Union, so long as Adrian
Ventura was on the Union’s bargaining committee. The General Counsel argues that 10
Respondent had an obligation to allow access and to meet and bargain with the employees’
chosen bargaining representatives. Respondent does not dispute that it cancelled the tour and
the bargaining session solely because of Ventura’s presence, but contends that it was justified
in doing so because Ventura posed “a clear and present danger” to the bargaining process.
Specifically, Respondent argues that Ventura, a third-party representative of CCT, an unrelated 15
labor organization, has an ulterior motive for participating, which is to “engage in a fishing
expedition designed to educate [him] as to the ‘ins and outs’ of [Respondent’s] sector of the
food preparation industry . . ., with no particularized interest in the work or conditions of
employment of [Respondent’s] employees.” (R. Br. 19–20.)
20
The U.S. Supreme Court recognized that Section 7 the Act affords employees the
“fundamental right” to select representatives of their own choosing for the purposes of collective
bargaining.18 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). In general, parties
have a right to choose whomever they wish to represent them in bargaining, and neither party
can control the other party’s selection of representatives.19 See generally Wellington Industries, 25
357 NLRB 1625 (2011); Palm Court Nursing Home, 341 NLRB 813, 819 (2004); General
Electric Co., 173 NLRB 253, 255 (1968), enfd. General Electric v. NLRB, 412 F.2d 512, 516–
517 (2d Cir. 1969); Minnesota Mining & Mfg. Co. v. NLRB, 415 F.2d 174, 177–178 (8th Cir.
1969).
30
There are a few recognized exceptions to this general rule, but they are rare and
confined to situations so infected with ill-will, usually personal, or conflicts of interest, as to make
good-faith bargaining impractical. See General Electric Co. v. NLRB, 412 F.2d at 517. See also
Pony Express Courier Corp., 297 NLRB 171 (1989) (union agent sought to be included
operated a side business that competed with employer); Bausch & Lomb Optical Co., 108 NLRB 35
1555 (1954) (union established company in direct competition with employer);Sahara Datsun,
278 NLRB 1044 (1986)(employer not obligated to bargain with representative who falsely
accused owner of drug dealing and prostitution); Fitzsimons Mfg. Co., 251 NLRB 375, 379–380
(1980), affd. per curiam United Auto Workers v. NLRB, 670 F.2d 663 (6th Cir. 1982) (no
obligation to bargain with union representative who physically assaulted employer’s personnel 40

18 Sec. 7 of the Act grants employees the right “to bargain collectively through representatives of their
own choosing.” Sec. 8(a)(1) makes it an unfair labor practice “to interfere with . . . the exercise of the
rights guaranteed” in Sec. 7, and Sec. 8(a)(5) makes it an unfair labor practice for an employer “to refuse
to bargain collectively with the representatives of his employees.”
19 There is no dispute that the Union requested the plant tour to prepare for bargaining, and Respondent
agreed to conduct the tour. Respondent does not dispute that the Union had a legitimate reason for the
tour, and that it agreed to give the tour. Respondent’s sole issue was with Ventura’s participation. As a
result, both allegations hinge on whether Respondent has met its burden to lawfully exclude Ventura from
participating as a member of the Union’s bargaining committee.
JD–12–17
7
director during grievance meeting); NLRB v. ILGWU, 274 F.2d 376, 379 (3d Cir. 1960) (ex-union
official added to employer committee to “put one over on the union”); NLRB v. Kentucky Utilities
Co., 182 F.2d 810 (6th Cir. 1950) (union negotiator expressed great personal animosity towards
employer). Cf. Long Island Jewish Medical Center, 296 NLRB 51, 71–72 (1989)(employer
unlawfully refused union representative who had lightly pushed manager, used obscenities 5
toward manager, and blocked manager’s way).
The party seeking to exclude a selected representative from bargaining has a heavy
burden of proving the individual poses a “clear and present danger” to the collective-bargaining
process. See General Electric v. NLRB, 412 F.2d at 519–520; Milwhite Co., Inc., 290 NLRB 10
1150 (1998). To meet this burden, there must be evidence of exceptional circumstances; mere
speculation is not sufficient. Id. The Board has held the inclusion of individuals who do not work
in the unit, who do not work for the employer, and/or who do not work for the union, is, without
more, insufficient to constitute exceptional circumstances. See Indiana & Michigan Electric, 599
F.2d 185 (1979) (fg. Co. v. NLRB, 415 F.2d at 177–178) (union permitted to have participants 15
from other locals); General Electric Co. v. NLRB, 412 F.2d at 517–520 (union permitted to have
participants from other international unions); Standard Oil Co. v. NLRB, 322 F.2d 40, 44 (6th
Cir. 1963) (other locals). See also Vibra-Screw, Inc., 301 NLRB 371 (1991)(union permitted to
have discharged employees on bargaining committee); Colfor, Inc., 282 NLRB 1173 (1987)
(same). Additionally, the Board has held that possible exposure to confidential information, 20
which if disclosed would be detrimental to the employer, is, without more, too speculative to
constitute exceptional circumstances. See Milwhite Co., Inc., 290 NLRB at 1152; Minnesota
Mining and Manufacturing Co., 173 NLRB 275, 278 (1968).20
In CBS, Inc., 226 NLRB 537, 539 (1976), enforced sub nom. IBEW v. NLRB, 557 F.2d 25
995 (2d Cir. 1977), the Board found non-employee bargaining committee member had a
disqualifying conflict of interest because he would have access to confidential, proprietary
information. In that case, CBS was negotiating with the IBEW over a contract covering its
television technicians. At the time, CBS had a monopoly on microwave camera technology,
which allowed it to conduct live remote broadcasts. This technology gave CBS a significant 30
advantage over its competitors, NBC and ABC. CBS intended to disclose certain confidential
information about this technology during bargaining with the IBEW in an effort to negotiate
certain modifications to the existing agreement. After bargaining began, the IBEW added a
representative from the National Association of Broadcast Engineers and Technicians, AFL–
CIO (“NABET”) to its bargaining committee. NABET did not represent any CBS employees, but35
did represent employees at NBC and ABC. CBS refused to bargain with the NABET
representative present, arguing a conflict of interest in light of CBS’ intent to disclose
confidential information about its proprietary camera technology, which, if NABET shared with
NBC and ABC, would cause CBS to lose its competitive advantage.
40

20 Respondent argues in its posthearing brief that Ventura “was not necessary to the collective-bargaining
process as an expert, consultant, translator, or other third-party participate.” (R. Br. 22–24). However, a
union is not obligated to prove to an employer how or why its bargaining committee members will assist or
contribute to the bargaining process. While the Board has articulated circumstances in which an
individual may be disqualified from participating in bargaining, it has not established any prerequisites.
The Act merely requires that the employer bargain with its employees’ chosen bargaining representatives.
The evidence indicates the three employee members of the Union’s bargaining committee believed that
Ventura offered something, and that it was important to have him present, because they insisted he be
allowed to remain for the tour and for bargaining, and at least one was willing to call a strike if he was not.
JD–12–17
8
The Board adopted the administrative law judge’s finding that the NABET representative
posed a “clear and present danger” to the bargaining process. Id. at 539. In reaching its
conclusion, the Board distinguished General Electric v. NLRB, supra, which involved the
inclusion of representatives from other unions that represented the employer’s employees in
other units. The Board noted that, unlike in General Electric, NABET had no connection to CBS5
or its employees; the only connection was that NABET represented “employees of its two
archrivals.” Id. The Board held that, in this “unique” case, it was a disqualifying conflict of
interest to have a committee member who represents employees of direct competitors,
particularly where bargaining will involve confidential, proprietary information that, if shared with
those competitors, would cause the employer to lose its competitive advantage.21 Id.10
2. Application of Legal Authority
Relying on CBS, Inc., Respondent argues Ventura poses a clear and present danger to
the bargaining process because of a similar conflict of interest.22 Respondent contends Ventura 15
is not employed by Respondent or the Union, and he and CCT could represent employees at
other food processing companies. And, as a member of the Union’s bargaining committee,
Ventura would have access to confidential, proprietary information about Respondent’s
operations, which, if shared with others, could cause Respondent to lose its competitive
advantage.20
CBS, Inc. is distinguishable for several reasons. To begin with, while the NABET
representative had no relationship with the employer, the union, or the employees, Ventura
does. The employees came to him first with their concerns and interest in organizing; he
introduced them to the Union; he assisted the Union in communicating with the employees who25
primarily spoke K’iche; he attended organizing meetings; he attended the vote count; and, most
importantly, he is who the employees wanted present for the August 24 tour and bargaining
session, as evidenced by their willingness to strike if he was not allowed to attend. Additionally,
while Ventura did not work for the Union, he had helped the Union in organizing and
representing other employees, including those working at a tire recycling center.30
Second, unlike CBS, Inc., there is no evidence CCT or Ventura has a relationship with
any of Respondent’s competitors.23 Respondent argues Ventura and CCT may, in the future,

21 In CBS, Inc., the administrative law judge discussed whether having a confidentiality agreement would
adequately address the employer’s concerns. The judge concluded such a pledge would be inadequate
because the NABET representative had “a primary allegiance” to the ABC and NBC employees he
represented, and he would have been obligated to disclose to those employees any information he
obtained during the CBS negotiations, thereby violating any pledge of confidentiality to CBS. 226 NLRB
at 538 fn. 2 and 539. In adopting the judge’s conclusions, the Board explicitly stated it was not adopting
‘the judge’s comments with respect to NABET’s duty to disclose information it might receive on a
confidential basis [during the CBS negotiations.]” Id. at 537 fn. 1.
22 Respondent argues in its brief that it has no obligation to allow access to or bargain with Ventura
because neither he nor CCT represents Respondent’s employees, although CCT could represent the
employees because its website indicates that it qualifies as a “labor organization” within the meaning of
Sec. 2(5) of the Act. (R. Br. 20–22.) Whether CCT is a statutory labor organization or not is irrelevant to
deciding this case. CCT has made no claim that it represents Respondent’s employees and has made no
demand to bargain. Ventura’s presence and involvement is as a selected member of the Union’s
bargaining committee, not as a representative of CCT.
23 The closest CCT comes to having such a relationship is that it works with employees at seafood
processing companies. (Jt. Exh. 23.) DeMarco testified he had heard the Union possibly was attempting
JD–12–17
9
seek to represent employees at other food processing companies, including Respondent’s
competitors. Specifically, in its posthearing brief, Respondent claims that “Centro Communitario
de Trabajadores’ true motives remained hidden but they are not difficult to discern. It is a labor
organization as defined by the Act. It intends to expand the scope of its activities into Rhode
Island, and to use Eastland as thin end of that expansion wedge.” (R. Br. 17.) But Respondent’s 5
witnesses acknowledged this is entirely speculative. Respondent presented no evidence that
CCT or Ventura had any intent or plan to begin working with employees at any of Respondent’s
competitors. Regardless, the Board has held that employers cannot refuse to bargain merely
because their collective-bargaining representative's negotiating team may include individuals
that maintain relations with the employer’s competitors. See A.M.F. Incorporated-Union 10
Machinery Division, 219 NLRB 903, 904, 907 (1975); Harley-Davidson Motor Co.,, 214 NLRB
433, 437 (1974); Roscoe Skipper, Inc., 106 NLRB 1238, 1240–1242 (1953).
Third, Respondent contends Ventura would, as part of the Union’s bargaining
committee, have access to confidential or proprietary information, which, if disclosed, would 15
cause Respondent to lose its competitive advantage. Respondent has the burden of identifying
what it considers confidential or proprietary information, and proving that its legitimate and
substantial confidentiality interest outweighs the Union’s need for access or information. See
Detroit Edison v. NLRB, 440 U.S. 301 (1979). See also Holyoke Water Power Co., 273 NLRB
1369, 1370 (1985) (relating to access). A blanket claim of confidentiality will not satisfy the 20
burden of proof. The Earthgrains Co., 349 NLRB 389 (2007).
Respondent has asserted that its facility layout, custom-made equipment, and processes
are trade secrets, proprietary, and/or confidential. Yet, it did not present evidence as how or
why this is so. Nor did Respondent present evidence as to the steps it has taken to protect that 25
information. Respondent was asked whether it has employees sign confidentiality agreements,
and DeMarco testified that only Wahl has such an agreement. When DeMarco was asked why
none of the hourly employees are asked to sign such agreements, he responded that they are
just hourly employees and are usually limited to only parts of the operations. When pressed on
this, DeMarco confirmed that during a tour, Ventura would see the same information that these 30
hourly employees saw. There is no evidence that Ventura had any additional skills or
experience that would allow him to gather or discern information differently than the hourly
employees who work at Respondent’s facility.
Regardless of whether Respondent has met this burden of proving confidentiality, it 35
acknowledges that it has no basis on which to assert that Ventura would disclose the
information at issue. Wahl testified he had no knowledge that Ventura or CCT had previously
disclosed confidential or proprietary information from any of the other companies they dealt with,
and his concerns were based entirely on his unfamiliarity with Ventura and CCT. The Board
has held that mere speculation of possible abuse of information that is shared is not enough. 40
See General Electric Co., 173 NLRB at 255 (the Board majority rejected that “the mere
possibility of such abuse, without substantial evidence of ulterior motive or bad faith, justifies
qualification of a union's right to select the persons who will represent it at the negotiating
table.”); Minnesota Mining & Mfg. Co., 173 NLRB at 278 (The Board held that the “mere
possibility of future abuse (which indeed the Union disclaims), is no justification for an 45
anticipatory refusal to bargain.”). See also Caterpillar, Inc., 361 NLRB No. 77 (2014)(Board
majority held employer failed to articulate specific confidentiality concerns posed by allowing

to organize other area food industry employers (Greencore and Snipped Fresh), but neither he nor Wahl
were aware if Ventura or CCT was attempting to organize these companies. (Tr. 190–191.)
JD–12–17
10
union access for health and safety investigation, negating need to apply Holyoke Water Power
Co. balancing test).
Moreover, Respondent cannot simply deny the Union access or refuse to bargain when
confidential or proprietary information is involved. The Board has held that when the employer 5
has legitimate and substantial confidentiality interests, it must bargain with the union about
possible safeguards, such as a confidentiality agreement, and/or establish why those
safeguards are inadequate to protect the information at issue from dissemination. See generally
Exxon Co. USA, 321 NLRB 896, 898 (1996); Pennsylvania Power Co., 301 NLRB 1104, 1105–
1106 (1991). Respondent never raised or bargained over safeguards to address its concerns. 10
In its post-hearing brief, Respondent argues that requiring Ventura or CCT to sign a
confidentiality agreement would be futile because it would not be enforceable. Respondent,
however, cites no legal authority to support this argument. Instead, it argues that Ventura and
CCT are located 35 miles away, and Respondent would not know if he disclosed information in
violation of such an agreement.15
Finally, Respondent does not dispute it would have conducted the tour and bargained
with the rest of the union bargaining committee, so long as Ventura was not involved. The
Union’s bargaining committee included the union president, the Union’s director of organizing,
the Union’s attorney, and possibly a union translator. Yet, Respondent raised no issues or 20
concerns about any of these individuals having access to its confidential, proprietary
information. Respondent failed to explain why it believed they did not pose a risk, but Ventura
did. The closest Wahl came to distinguishing Ventura from these union representatives was
that Ventura did not work for the Union, and he was “friends” with the workers. Wahl never
explicated how this was significant, or how it justified excluding him.25
Based on the foregoing, I find Respondent has failed to prove Ventura posed a “clear
and present danger” to bargaining to justify cancelling the tour and bargaining on August 24, so
long as he remained part of the Union’s bargaining committee. Without evidence of exceptional
circumstances indicating bad faith on the part of the Union, Respondent was obligated to 30
conduct the tour and to bargain with the Union's bargaining committee, including Ventura.
General Electric, 412 F.2d at 520. Under these circumstances, I find that Respondent refused to
bargain in good faith, in violation of Section 8(a)(5) and (1) of the Act. See id. See also Standard
Oil Co. v. NLRB, 322 F.2d at 44 (employer unlawfully refused to negotiate with union bargaining
committee, which added temporary representatives from affiliated bargaining units in order to 35
improve communication between them); NLRB v. Indiana & Michigan Electric Co., supra,
(employer unlawfully refused to bargain with union negotiating committee because the union
was coordinating the various bargaining efforts).24

24 In its answer, Respondent raised a number of affirmative defenses, which it has the burden of proving.
To begin with, Respondent contends the complaint is barred by Sec. 10(b) of the Act. The charge was
filed and served on or around August 24, the same day that Respondent refused access and to bargain
so long as Ventura remained a part of the bargaining committee. Thus, the defense fails. Respondent
also alleges the complaint fails to state a claim upon which relief may be granted, and that Respondent’s
employment practices are lawful and in good faith under the Act. As stated above, I find the General
Counsel has met its burden of establishing the alleged violations in this case. Respondent also contends
the Union’s claims are barred, in whole or in part, by estoppel or waiver. Specifically, Respondent
contends the claims are barred, in whole or in part, based upon the parties’ agreement on July 22 that
Ventura would not be present on August 24. As stated above, I credit Melia’s testimony that there was no
agreement that Ventura would not be present on August 24. And, as stated above, Respondent failed to
meet its burden of establishing that Ventura posed a clear and present danger. As a result, I find
Respondent has failed to meet its burden regarding any of its affirmative defenses.
JD–12–17
11
CONCLUSIONS OF LAW
1. Eastland Food Products, Inc. (Respondent) is an employer engaged in commerce at
its facility located at 69 Fletcher Avenue, Cranston, Rhode Island (the facility) within the 5
meaning of Section 2(2) of the Act.
2. The United Food and Commercial Workers International Union, Local 328 (Union) is
a labor organization within the meaning of Section 2(5) of the Act.
3. The Union is certified as the collective-bargaining representative of the following 10
appropriate unit:
All full-time and regular part-time production, packaging, general preparation,
maintenance mechanics, sanitation, drivers, shipping and receiving, and quality
assurance employees employed by Respondent at its Cranston, Rhode Island 15
facility located at 69 Fletcher Avenue, Cranston Rhode, Island, excluding
managerial and professional employees, clerical employees, guards, and
supervisors as defined by the Act.
4. Eastland Food Products, Inc. violated Section 8(a)(5) and (1) of the Act by failing and 20
refusing to bargain in good faith with its employees’ exclusive collective-bargaining
representative since August 24, 2016, when it cancelled the scheduled tour of the facility so
long as Adrian Ventura remained a member of the Union’s bargaining committee.
5. Eastland Food Products, Inc. violated Section 8(a)(5) and (1) of the Act by failing and25
refusing to meet and bargain in good faith with its employees’ exclusive collective-bargaining
representative since August 24, 2016, so long as Adrian Ventura remained a member of the
bargaining committee.
6. The aforementioned unfair labor practices affected commerce within the meaning of 30
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall order 35
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent is ordered to cease and desist from failing or refusing to
conduct a tour of its facility if Adrian Ventura remains part of the Union’s bargaining committee.
Respondent is ordered to cease and desist from failing or refusing to meet and bargain with the
Union if Adrian Ventura remains part of the Union’s bargaining committee. Respondent is 40
ordered to cease and desist from 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.
Respondent shall, upon request, provide the Union’s bargaining committee (including Ventura)
a tour of the facility and, upon request, bargain with the Union and its bargaining committee
(including Ventura) as the exclusive collective-bargaining representative of the employees in 45
above-described unit concerning terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
The General Counsel requests remedies in addition to those the Board generally grants
for the above violations. The Board has broad discretion to fashion a just remedy to fit the 50
circumstances of each case it confronts. Maramont Corp., 317 NLRB 1035, 1037 (1995). The
JD–12–17
12
Supreme Court has interpreted Section 10(c) as vesting the Board with discretion to devise
remedies that effectuate the policies of the Act. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-899
(1984).
The complaint also requests an extended bargaining order under Mar-Jac Poultry, 136 5
NLRB 785 (1962). After the Board certifies a union as the employees' representative, Section
9(c)(3) of the Act provides that that the union's presumption of majority status cannot be
challenged by a new election for a period of 12 months. “The Board has long held that where
there is a finding that an employer, after a union's certification, has failed or refused to bargain
in good faith with that union, the Board's remedy therefore ensures that the union has at least 1 10
year of good-faith bargaining during which its majority status cannot be questioned.” Mar-Jac
Poultry, supra. An employer's refusal to bargain with a newly certified union deprives the union
of the opportunity to bargain during the time of its greatest strength. Northwest Graphics, Inc.,
342 NLRB 1288, 1289 (2004), enfd. 156 Fed.Appx. 331 (D.C. Cir. 2005). The appropriate length
of the extension must be determined by considering “the nature of the violations, the number, 15
extent, and dates of the collective-bargaining sessions, the impact of the unfair labor practices
on the bargaining process, and the conduct of the union during negotiations.” Northwest
Graphics, Inc., 342 NLRB at 1289.
In this case, I find that the record provides adequate basis to conclude that an extension 20
of the certification year is warranted based on the Respondent's unfair labor practices.
Respondent does not deny it has refused since August 24, 2016 to conduct the tour and to meet
and bargain with the Union, so long as Adrian Ventura remains part of the bargaining
committee. The parties, therefore, have not met for six months. There are no other alleged
unfair labor practices. Under the circumstances, I believe that extending the certification year 25
for six months is appropriate.
The complaint requests that the notice to employees be read to its employees at a
mandatory meeting, by or in the presence of the managers, during working hours. I decline to
grant this enhanced remedy. The violations at issue are not “so numerous, pervasive, and 30
outrageous” such that this particular additional remedy is required “to dissipate fully the coercive
effects of the unfair labor practices found.” Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995).
See also Federated Logistics, 340 NLRB 255, 258 (2003).
However, Respondent shall be required to post a notice that assures its employees that 35
it will respect their rights under the Act. As the Respondent has a large number of employees
whose primary language is Spanish, the Respondent shall be required to post the paper notice
in both English and Spanish. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such 40
means. J. Picini Flooring, 356 NLRB 11 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended25
45

25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–12–17
13
ORDER
The Respondent, Eastland Food Products, Inc., Cranston, Rhode Island, its officers,
agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Failing or refusing to meet and bargain with the United Food and Commercial
Workers Union, Local 328 (Union), as the exclusive bargaining representative of the employees
in the bargaining unit described in paragraph 2(a) below, so long as Adrian Ventura remained 10
on the Union’s bargaining committee.
(b) Failing or refusing to allow Adrian Ventura and other designated bargaining
committee members of the Union access to tour Respondent’s Cranston, Rhode Island facility.
15
(c) 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.
20
(a) Upon request by the Union, meet and bargain with the Union and its bargaining
representatives, including Adrian Ventura, as the exclusive representative of the employees in
the following appropriate unit on terms and conditions of employment, and permit access to the
Union’s bargaining representatives, including Adrian Ventura, to tour Respondent’s Cranston,
Rhode Island facility; and, if an understanding is reached, embody the understanding in a 25
signed agreement:
All full-time and regular part-time production, packaging, general preparation,
maintenance mechanics, sanitation, drivers, shipping and receiving, and quality
assurance employees employed by Respondent at its Cranston, Rhode Island 30
facility located at 69 Fletcher Avenue, Cranston Rhode, Island, excluding
managerial and professional employees, clerical employees, guards, and
supervisors as defined by the Act.
(b) Upon request by the Union, conduct a plant tour with the Union and its bargaining 35
representatives, including Adrian Ventura.
(c) Within 14 days after service by the Region, post at its facility in Cranston, Rhode
Island, copies of the attached notice marked “Appendix”26 in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director for Region 1, after being signed by the 40
Respondent's authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by 45
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are

26 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–12–17
14
not 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 the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 24, 2016.5
(d) 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.
10
Dated, Washington, D.C. March 1, 2017
15
Andrew S. Gollin
Administrative Law Judge
6.fg. PeL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 fail or refuse to meet and bargain with the United Food and Commercial
Workers Union, Local 328 (the Union), in the following appropriate unit, because the Union’s
chosen bargaining committee includes Adrian Ventura. The appropriate bargaining unit is:
All full-time and regular part-time production, packaging, general preparation,
maintenance mechanics, sanitation, drivers, shipping and receiving, and quality
assurance employees employed by Respondent at its Cranston, Rhode Island
facility located at 69 Fletcher Avenue, Cranston Rhode, Island, excluding
managerial and professional employees, clerical employees, guards, and
supervisors as defined by the Act.
WE WILL NOT fail or refuse to provide the Union’s chosen bargaining committee with a tour of
our Cranston, Rhode Island facility, because the bargaining committee includes Adrian Ventura.
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, on request, bargain with the Union’s chosen bargaining committee as the exclusive
representative of the employees in the above appropriate unit concerning terms and conditions
of employment and, if an understanding is reached, embody the understanding in a signed
agreement.
WE WILL, on request, provide the Union’s chosen bargaining committee with a tour of our
Cranston, Rhode Island facility.
EASTLAND FOOD PRODUCTS, INC
(Employer)
Dated _________________________ By ______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board's
Regional Office set forth below. You may also obtain information from the Board's website:
www.nlrb.gov.
10 Causeway Street, 6th Floor, Boston, MA 02222–1072
(617) 565-6700, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-182772 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (617) 565-6700.