Gruma Corporation d/b/a Mission Foods

National Labor Relations Board - Board Decisions

Feb 16, 2018

04-CA-199438 (N.L.R.B. Feb. 16, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GRUMA CORPORATION d/b/a MISSION FOODS
and Cases 04-CA-199438
04-CA-202091
04-CA-209548
UNITED FOOD AND COMMERCIAL WORKERS
LOCAL 1776
DECISION AND ORDER
Statement of the Cases
On January 9, 2018, Gruma Corporation d/b/a Mission Foods (the Respondent),
Charging Party United Food and Commercial Workers Local 1776 (the Union), and the
General Counsel of the National Labor Relations Board entered into a Formal Settlement
Stipulation, subject to the Board’s approval, providing for the entry of a consent order by
the Board and a consent judgment by any appropriate United States Court of Appeals.
The parties waived all further and other proceedings before the Board to which they may
be entitled under the National Labor Relations Act and the Board’s Rules and Regulations,
and the parties waived their rights to contest the entry of a consent judgment or to receive
further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding to
a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C., for
the entry of a Decision and Order pursuant to the provisions of the Formal Settlement
Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board makes
the following
Findings of Fact
1. The Respondent’s business
(a) The Respondent is a Nevada corporation with its principal office in Irving,
Texas. It operates a plant in Mountain Top, Pennsylvania (the Mountain Top plant), where
it is engaged in the manufacture, nonretail sale and distribution of food products.
2
(b) In conducting its business operations at the Mountain Top plant during the 1-
year period ending January 6, 2018, the Respondent sold and shipped from the Mountain
Top plant goods valued in excess of $50,000 directly to points outside the Commonwealth
of Pennsylvania.
(c) The Respondent is now, and has been at all material times, an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization involved
The Union is a labor organization within the meaning of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that the Respondent, Gruma Corporation d/b/a
Mission Foods, Mountain Top, Pennsylvania, its officers, agents, successors and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge for supporting the Union.
(b) Threatening employees with closing the facility for supporting the Union.
(c) Threatening employees with discharge for questioning the Respondent’s
disciplinary investigations of employees who support the Union.
(d) Informing employees that it is futile to support the Union.
(e) Informing employees that the Union was to blame for employees not receiving
wage increases.
(f) Instigating, promoting, assisting, and encouraging employees to sign a petition to
decertify the Union.
(g) Soliciting employees to sign a decertification petition.
(h) Promising benefits to employees to encourage employees to decertify the Union.
(i) Threatening employees with discharge for failing to sign a decertification petition.
(j) Telling employees that they are receiving a pay increase and improved benefits
because they expressed that they no longer wished to be represented by the Union.
(k) Issuing subpoenas demanding information about employees’ union activity and
participation in Board investigations.
3
(l) Suspending or discharging any of its employees or in any other manner
discriminating against employees in regard to hire or tenure of employment or any other
term or condition of employment because of their protected Union support.
(m) Unlawfully withdrawing recognition from the Union.
(n) Bargaining in bad faith with the Union.
(o) Failing and refusing to meet and bargain with the Union at reasonable times.
(p) Failing and refusing to (i) explain to the Union why the Respondent believes the
parties have not reached a collective-bargaining agreement and (ii) meet and bargain with
the Union until the Union agrees that the parties have not reached a collective-bargaining
agreement.
(q) Engaging in surface bargaining or bargaining without the intention to reach an
overall collective-bargaining agreement.
(r) Making changes to employees’ terms and conditions of employment to discourage
employees from supporting the Union.
(s) Making any unilateral changes to employees’ terms and conditions of
employment without notifying the Union and bargaining to agreement or lawful impasse.
(t) In any like or related manner interfering with, restraining or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to join or
assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in other 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) Within 14 days from the date of the Board's Order, offer Dawizon Martinez and
Richard Mondesir full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Within 14 days of the Board's Order, remove from the Respondent’s files any
reference to the suspension or discharge of Dawizon Martinez and Richard Mondesir and
within 3 days thereafter, notify those employees, in writing, that this was done and that the
suspensions and discharges will not be used against them in any way.
(c) Make whole Dawizon Martinez and Richard Mondesir for any losses they may
have suffered by reason of the discrimination against them, by payment of an amount to
4
be determined by the Regional Director for Region Four of the Board at a later date, in
consultation with the parties.
(d) Make whole the above named employees for any additional loss of pay caused
by the Respondent’s failure, if any, to reinstate them in accordance with the provisions of
this Order, within 14 days from the date of this Order, by payment to them of the respective
amounts that they would have earned if properly reinstated, from the 15th day after the
date of this Order to the date of a proper offer of reinstatement, less their net earnings
during such period, said amounts to be computed with interest on a quarterly basis.
(e) Compensate the above-named employees for the adverse tax consequences, if
any, of receiving Iump-sum backpay awards.
(f) File with the Regional Director for Region Four of the Board, within 21 days of the
date the amount of backpay is fixed, a report allocating the backpay awards to the
appropriate calendar years for each employee.
(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Upon request, recognize and bargain collectively in good faith with the Union as
the exclusive collective-bargaining representative of all full-time and regular part-time
production and warehouse employees, sanitation and maintenance employees, quality
control employees, and lead employees employed by the Respondent at its 15 Elmwood
Road, Mountain Top, PA facility; excluding all other employees, including office clerical
employees, professional employees, confidential employees, sales employees, over the
road truck drivers, managers, guards, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment and other conditions of employment, and if an
understanding is reached, reduce it to writing and sign it. On resumption of bargaining, the
Union's status as the exclusive collective-bargaining representative of the unit shall be
extended for 12 months thereafter, as if the initial year of the certification has not expired.
(i) Upon request, bargain collectively in good faith with the Union for at least 24
hours per month, in sessions lasting not less than 6 hours, until an agreement or lawful
impasse is reached.
(j) At the Union's election, rescind the Respondent’s unilateral changes to
employees’ terms and conditions of employment of a 3-percent wage increase, provision
of three paid sick days, and modification of attendance policy.
(k) Within 14 days of service by the Region, post at its Mountain Top, Pennsylvania
plant copies of the attached notice marked “Appendix A” in English, Spanish, and Haitian-
Creole. Copies of the notice, on forms provided by Region Four, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
5
maintained for 60 consecutive days in conspicuous places, including all places where
notices to employees are customarily posted. The Respondent will take reasonable steps
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 June 2016.
(l) Within 10 days of the Board's Order, (i) hold a mandatory employee meeting or
meetings, on working time and at times when the Respondent customarily holds meetings,
and scheduled to ensure the widest possible employee attendance, at which the notice
marked “Appendix A” will be read to employees in English, Spanish and Haitian-Creole by
a responsible Respondent official in the presence of a Board agent or, at the Respondent’s
option, have a Board agent and/or translator read the Order in the presence of a
responsible Respondent official; (ii) announce the meeting(s) for the notice reading in the
same manner it would customarily announce a meeting of employees; and (iii) require that
all employees at the facility involved in this proceeding attend the meeting(s).
(m) 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.
Dated, Washington, D.C., February 16, 2018
___________________________________
Marvin E. Kaplan, Chairman
___________________________________
Mark Gaston Pearce, Member
___________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
6
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
POSTED PURSUANT TO A STIPULATION
FOR A BOARD ORDER AND CONSENT JUDGMENT
OF ANY APPROPRIATE UNITED STATES COURT OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
United Food and Commercial Workers Local 1776 is the employees’ representative in
dealing with us regarding wages, hours and other working conditions of the employees in
the following unit:
INCLUDED: All full-time and regular part-time production and warehouse
employees, sanitation and maintenance employees, quality control employees and
lead employees employed at the 15 Elmwood Road, Mountain Top, Pennsylvania
facility.
EXCLUDED: All other employees, including office clerical employees, confidential
employees, sales employees, over the road truck drivers, managers, guards, and
supervisors as defined in the Act.
WE WILL NOT instigate, promote, assist, or encourage you to sign a petition to decertify
the Union.
WE WILL NOT ask you to sign a petition to decertify the Union.
WE WILL NOT promise you a raise and better benefits to encourage you to decertify the
Union.
WE WILL NOT threaten to fire you for failing to sign a petition to decertify the Union.
WE WILL NOT discipline or fire you because of your Union activity.
7
WE WILL NOT unlawfully withdraw recognition from the Union or refuse to recognize and
bargain with the Union as your bargaining representative.
WE WILL NOT inform you of our unlawful withdrawal of recognition of the Union or say to
you that the Union is no longer your collective-bargaining representative.
WE WILL NOT bargain in bad faith with the Union or bargain without the intention to reach
an overall collective-bargaining agreement.
WE WILL NOT unlawfully fail and refuse to meet and bargain with the Union.
WE WILL NOT unlawfully fail and refuse to meet and bargain with the Union at reasonable
times.
WE WILL NOT tell you that you are receiving a raise and better benefits as a reward for no
longer supporting the Union.
WE WILL NOT threaten to fire you if you choose to be represented by or support a union.
WE WILL NOT threaten to close the plant in order to discourage you from engaging in
union activities.
WE WILL NOT threaten to fire you for questioning disciplinary investigations of employees
who support the Union.
WE WILL NOT tell you that a union cannot help you and that you will only receive benefits
if we want to give them to you.
WE WILL NOT tell you that we will never sign a contract with your union.
WE WILL NOT tell you that the Union is to blame for you not receiving a raise.
WE WILL NOT issue subpoenas demanding information regarding your union activities or
participation in National Labor Relations Board investigations.
WE WILL NOT make changes in wages, hours and working conditions without notifying
the Union and bargaining to agreement or lawful impasse with the Union and WE WILL
NOT make any changes in wages, hours and working conditions to persuade you to stop
supporting the Union.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of
the National Labor Relations Act.
WE WILL offer Dawizon Martinez and Richard Mondesir full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously enjoyed; and WE WILL make
them whole for any loss of earnings and other benefits resulting from their discharges, with
interest.
8
WE WILL compensate Dawizon Martinez and Richard Mondesir for the adverse tax
consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the
Regional Director for Region Four of the Board, within 21 days of the date the amount of
backpay is fixed, a report allocating the backpay awards to the appropriate calendar years
for each employee.
WE WILL remove from our files any reference to the suspensions and discharges of
Dawizon Martinez and Richard Mondesir and WE WILL notify them that we have done so
and that their suspensions and discharges will not be used against them in any way.
WE WILL, on request, bargain in good faith with the Union as the exclusive bargaining
representative of our employees in the unit described above, concerning rates of pay,
wages, benefits and other terms and conditions, and put in waiting and sign any
agreement reached as a result of such bargaining. The Union's certification year shall be
extended for 1 year from the resumption of bargaining.
WE WILL, on request, meet to bargain with the Union for a minimum of 24 hours per
month, for at least 6 hours per session until an agreement or lawful impasse is reached or
until the parties agree to a respite in bargaining.
WE WILL, if requested by the Union, rescind the changes regarding your wages, sick
days, and attendance policy.
GRUMA CORPORATION d/b/a MISSION FOODS
The Board’s decision can be found at www.nlrb.gov/case/04-CA-199438 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 St., S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.