Goya Foods of Florida

National Labor Relations Board - Board Decisions

Jul 25, 2008

352 N.L.R.B. 884 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 109
884
Goya Foods of Florida and UNITE HERE, CLC.
Cases 12–CA–23524, 12–CA–25198, 12–CA–
25286, and 12–CA–25305
July 25, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On January 23, 2008, Administrative Law Judge Kelt-
ner 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 excep-
tions. The Respondent filed a reply brief and an answer-
ing brief to the General Counsel’s cross-exception.
The National Labor Relations Board1 has considered
the bench decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Goya

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 In his cross-exception and supporting brief, the General Counsel
seeks compound interest computed on a quarterly basis for any make-
whole relief awarded. Having duly considered the matter, we are not
prepared at this time to deviate from our current practice of assessing
simple interest. See, e.g., Glen Rock Ham, 352 NLRB 518, 518 fn. 1
(2008).
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and to require the Respondent to
preserve and, on request, make available records necessary to analyze
the amount of reimbursement due unit employees under the terms of
the Order. We shall also substitute a new notice to conform to the
Order as modified.
The recommended Order properly required the Respondent, at the
Union’s request, to restore either the health insurance plan that existed
before the unilateral change in December 2003 or the plan that existed
before the unilateral change in January 2005. See, e.g., Laurel Baye
Healthcare of Lake Lanier, LLC, 352 NLRB 179, 179 fn. 3 (2008).
The Respondent may litigate in compliance whether it would be impos-
sible or unduly or unfairly burdensome to restore either of the two prior
plans. See id. (citing Larry Geweke Ford, 344 NLRB 628, 629 (2005)).
If, however, the Union chooses continuation of the final unilaterally
implemented health insurance policy, then make-whole relief for the
unilateral changes is inapplicable. See id. (citing Brooklyn Hospital
Center, 344 NLRB 404 (2005)). Although Member Liebman dissented
on that point in Brooklyn Hospital Center, supra at fn. 3, she recognizes
that it is extant Board law and, for that reason alone, applies it here.
Foods of Florida, Miami, Florida, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(d).
“(d) In any like or related manner interfering with, re-
straining, 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 admin-
istrative law judge.
APPENDIX B
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 vio-
lated 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 bene-
fit 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 condi-
tions of employment, including your health insurance
coverage and pension plan, without giving the Union
prior notice of such contemplated changes and affording
the Union the opportunity to bargain about them.
GOYA FOODS OF FLORIDA 885
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 informa-
tion which the Union requested on October 6, 2006, to-
gether with any updates necessary to make that informa-
tion current.
WE WILL restore to you the pension plan that was in ef-
fect before we discontinued it at the end of calendar year
2006.
WE WILL, at the Union’s request, restore to you the
health insurance coverage that you enjoyed before we
unlawfully changed such coverage in December 2003
and again in January 2005. Should the Union make this
request, it shall also have the option of deciding whether
we must restore the coverage in effect immediately be-
fore our January 2005 unilateral change or the coverage
in effect immediately before our December 2003 unilat-
eral change.
WE WILL make you whole for any losses you suffered
because of our unlawful unilateral changes, with interest.
GOYA FOODS OF FLORIDA
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 Miami, Florida. After the parties
rested, I recessed the hearing until December 3, 2007, so that
counsel had sufficient time to receive and review the transcript
and exhibits and to prepare oral argument. On December 3,
2007, I heard oral argument, and, on December 4, 2007, issued
a bench decision pursuant to Section 102.35(a)(1) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision. Conclusions of law, remedy, order, and notice
provisions are set forth below.
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 Union’s
performance of its duties as the exclusive collective-bargaining
representative of the employees in the bargaining units.
Respondent denied these allegations.
Complaint paragraph 6(c) alleges that since October 6, 2006,
the Respondent has failed and refused to furnish the Union with
the requested information. Although Respondent’s answer did
not admit this allegation, during the hearing, Respondent
entered into a stipulation which establishes that it never
furnished the Union with the information it sought. Based on
that stipulation (in evidence as Jt. Exh. 1), I find that no
supervisor or agent of Respondent provided the information
which the Union requested in its October 6, 2006 e-mail.
Further, I conclude that the General Counsel has proven the
allegations raised by complaint paragraphs 6(a) and (c).
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 Union had not lost
its majority status and continued to be the exclusive
representative of Respondent’s employees in the same two
bargaining units described in the present complaint. Following
the principle of res judicata, I conclude that the General
Counsel has proven that the Union remains the exclusive
representative of the bargaining unit employees.
The General Counsel also must prove that the requested
information is relevant to the Union’s function as exclusive
representative, and necessary for that purpose. The information
requested by the Union concerns the employees in the two
bargaining units it represents, and therefore is presumptively
relevant. See Otay River Constructors, 351 NLRB 1105, 1108
(2007), citing Postal Service, 332 NLRB 635 (2000). See also
Caldwell Mfg. Co., 346 NLRB 1159 (2006); Certco Food
Distribution Center, 346 NLRB 1214 (2006). No evidence in
the record rebuts this presumption. Therefore, I conclude that
the General Counsel has proven the allegations raised by
complaint paragraph 6(b).
The record also does not disclose any circumstance which
would excuse the Respondent from its duty to provide the
requested relevant information to the Union. Accordingly, I
conclude that the General Counsel has proven that
Respondent’s failure and refusal to furnish the Union with the
requested information violates Section 8(a)(5) and (1) of the
Act, as alleged.
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 Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD886
and affording it the opportunity to negotiate regarding the
proposed changes. These unlawful unilateral actions include
both the changes in health insurance coverage alleged in
complaint paragraph 9 and Respondent’s replacing the existing
pension plan with a retirement and 401(k) savings plan, as
alleged in the various subparagraphs of complaint paragraph 7.
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
Union, Respondent eliminated the pension plan applicable to
bargaining unit employees and substituted a “retirement and
401(k) plan.”
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 Union no longer
represented bargaining unit employees, must be rejected for
reasons already discussed. In three prior cases, the Board
rejected this argument. The record establishes no other
justification for Respondent’s unilateral action. Accordingly, I
conclude that Respondent’s replacement of the pension plan
with a retirement and 401(k) plan violated Section 8(a)(5) and
(1) of the Act.
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. See Hill Park Health Care Center,
334 NLRB 328 (2001); Libby–Owens–Ford Co., 285 NLRB
673 (1987); and Alaska Pulp Corp., 300 NLRB 232 (1990),
enfd. mem. 972 F.2d 1341 (9th Cir. 1992). The present record
does not establish any unusual circumstance which would
justify an exception to this principle.
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 Union. Moreover, as the Board found in
the previous cases, Respondent committed other unfair labor
practices. For example, in Goya Foods of Florida, 347 NLRB
1118 (2006), the Board found that in addition to unlawfully
withdrawing recognition from the Union, the Respondent had
discharged employees because of their union activities, in
violation of Section 8(a)(3), and had made statements which
interfered with, restrained, and coerced employees in violation
of Section 8(a)(1). These unfair labor practices included
interrogating employees about their union activities and
informing employees that it would be futile for them to select a
union or continue to support a union.
Nothing in the present record suggests that Respondent has
remedied these unfair labor practices, which communicate to
employees that Respondent bears hostility towards the Union
and those who support it. In these circumstances, an employee
who read Respondent’s statement that its retirement and 401(k)
plan excluded union employees, likely would not regard it as
merely the result of an inadvertent error by managers who
didn’t know the difference between “union” and “unit.” To the
contrary, they reasonably would understand the statement to be
yet another manifestation of Respondent’s antiunion hostility.
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 Union is a labor organization within the meaning of
Section 2(5) of the Act and, at all times material, has been the
exclusive collective-bargaining representative of the bargaining
units described in complaint paragraphs 5(a) and (b).
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.
GOYA FOODS OF FLORIDA 887
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 Union forthwith the relevant and necessary
information described in complaint paragraph 6(a). The Union
requested this information on October 6, 2006, but the specific
information, such as a seniority list of bargaining unit em-
ployees, may have changed since that date. Respondent must
furnish to the Union both the information which was current on
the date of the request together with any updates necessary to
make the information current at present.
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 Union’s request, Respondent must restore to bargaining unit
employees the health insurance coverage they enjoyed before
Respondent’s unlawful unilateral change in January 2005.
Respondent must also make bargaining unit employees whole,
with interest, for any losses they suffered because Respondent
made the unlawful unilateral changes in health insurance
coverage.
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, Miami, Florida, its
officers, agents, successors, and assigns, shall
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 Union’s request, restore to bargaining unit
employees the health insurance coverage they enjoyed before
Respondent unlawfully changed such coverage in December
2003 and again in January 2005. Should the Union make this
request, it shall also have the option of deciding whether
Respondent must restore the coverage in effect immediately
before the January 2005 unilateral change or the coverage in
effect immediately before the December 2003 unilateral
change.
(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 Miami, Florida, copies of the attached notice
marked “Appendix B.” Copies of the notice, on forms
provided by the Regional Director for Region 12, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD888
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are 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 November 21,
2006.
(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.
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 “Union.” The charge alleged that Respondent,
Goya Foods of Florida, violated Section 8(a)(5) and (1) of the
Act by announcing, about the second week in October 2003,
that it would be changing insurance coverage, without
bargaining with the Union. On January 23, 2004, the Union
amended this charge by adding the allegation that, about
December 1, 2003, Respondent changed its insurance coverage
without bargaining with the Union.
The Union amended this charge again on October 31, 2006,
to add the allegation that Respondent not only changed its
employees’ insurance coverage without bargaining on
December 1, 2003, but did so again on a subsequent date,
which the charge did not specify.
On November 20, 2006, the Union filed the initial charge in
Case 12–CA–25198. It alleged that Respondent, on about
November 13, 2006, violated Section 8(a)(5) and (1) by
notifying employees that it would be implementing a 401(k)
plan to replace its pension plan, without notifying the Union,
and intending not to bargain with the Union. The Union
amended this charge on February 15, 2007, adding the
allegation that in or around January 2007, Respondent
implemented a 401(k) plan to replace its pension plan, without
bargaining with the Union.
On February 16, 2007, the Union filed a charge against
Respondent in Case 12–CA–25286, and amended it on June 22,
2007. As amended, the charge alleged that in November 2006,
Respondent announced, and thereafter made available to
employees, a retirement plan which was restricted to nonunion
employees, in violation of Section 8(a)(1) of the Act.
On February 23, 2007, the Union filed another charge
against Respondent. The charge, docketed as Case 12–CA–
25305, alleged that since on or about October 6, 2006,
Respondent had failed to provided requested information
necessary for collective bargaining, in violation of Section
8(a)(5) and (1) of the Act.
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 Miami, Florida, on
November 5, 2007. Both the General Counsel and Respondent
completed their presentations of evidence on that date and I
recessed the hearing until December 3, 2007, to allow counsel
the opportunity to receive and review the hearing transcript and
exhibits and to prepare oral argument. On December 3, 2007,
the hearing resumed by telephone conference call and counsel
presented oral argument. Today, December 4, 2005, I am
issuing this bench decision.
Background
Respondent argues, as an affirmative defense to the 8(a)(5)
allegations, that it lawfully withdrew recognition from the
Union. The Board considered and rejected this argument in a
prior proceeding, and Respondent has appealed the Board’s
decision. To delineate which issues previously have been
litigated, and which are, therefore, res judicata, it is helpful to
review the Board’s previous decisions.
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 Union as the
exclusive representative of an appropriate collective-bargaining
unit of Respondent’s warehouse employees. That unit is the
same warehouse unit which is described in the present
complaint as follows:
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
GOYA FOODS OF FLORIDA 889
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 Union as
the exclusive representative of an appropriate collective-
bargaining unit of Respondent’s sales and merchandising
employees. That unit is the same “sales representative and
merchandising employee unit” described in the present
complaint as follows:
All sales representatives and merchandising employees
employed by the Employer at its facility located at 1900 NW
92nd Avenue, Miami, Florida 33172, excluding all office
clericals, guards and supervisors as defined in the Act.
5. In December 1999, Respondent withdrew recognition
from the Union as the exclusive representative of both the
warehouse unit and the sales unit, in violation of Section
8(a)(5) and (1) of the Act.
Although Respondent has admitted that it withdrew
recognition from the Union, it denies that it violated the Act.
However, that issue is res judicata in this proceeding.
Accordingly, I conclude that Respondent unlawfully withdrew
recognition from the Union. Therefore, I further conclude that
based upon Section 9(a) of the Act, the Union, since October
26, 1998, in the warehouse employees and drivers unit and
since December 4, 1998, in the sales representative and
merchandising employees unit, has been and remains the
exclusive collective-bargaining representative of the employees
in these units, as alleged in complaint paragraph 5(d).
In Goya Foods of Florida, 350 NLRB [939] (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 Union
because it had a past practice of doing so. Citing its earlier
decision in Goya Foods of Florida, the Board found that
Respondent was relying on “an asserted historic right to act
unilaterally, as distinct from an established past practice of
doing so. [T]hat right to exercise sole discretion changed once
the Union became the certified representative.”
In Goya Foods of Florida, 351 NLRB [94] (2007), the Board
again rejected Respondent’s argument that it had lawfully
withdrawn recognition from the Union as the representative of
the employees in the sales and warehouse units at issue here.
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 Union is a labor
organization within the meaning of Section 2(5) of the Act.
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 Union an opportunity to bargain with respect to
this conduct. The parties stipulated that Respondent made
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD890
these changers in group health insurance providers without
giving the Union notice and an opportunity to bargain.
Accordingly, I conclude that the General Counsel has proven
the allegations set forth in complaint paragraph 9(e).
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
Union and I have concluded, based on Board precedent, that
such changes involved mandatory subjects of collective
bargaining. Although Respondent asserts that it lawfully
withdrew recognition, the Board decided to the contrary in the
earlier proceeding and that conclusion is binding in this
proceeding.
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 Union became the
exclusive bargaining representative to justify unilateral change
afterwards. The argument, therefore, is no more persuasive
than a husband telling his wife that before they married he
dated a lot of people and was just continuing the past practice.
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 Union
to agreement or impasse. In sum, I conclude that Respondent’s
unilateral change violated Section 8(a)(5) and (1) of the Act.
Similarly, I conclude that Respondent violated the Act by its
unilateral changes in pension and retirement benefits.
The complaint also alleges that Respondent failed and
refused to provide the Union with relevant and necessary
information. Stipulations establish that the Union requested
and Respondent failed to provide certain information relevant
to, and necessary for, the Union to perform its function.
Respondent’s defense rests on the argument that it lawfully
withdrew recognition, which the Board has rejected. Accord-
ingly, I conclude that Respondent violated Section 8(a)(5) and
(1).
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.
GOYA FOODS OF FLORIDA 891
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.