MONDELEZ INTERNATIONAL

National Labor Relations Board - Board Decisions

Mar 31, 2020

369 N.L.R.B. 46 (N.L.R.B. 2020)

369 NLRB No. 46
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mondelez Global, LLC and Bakery, Confectionery,
Tobacco Workers and Grain Millers Interna-
tional Union, Local 719, AFL–CIO. Cases 22–
CA–174272, 22–CA–178370, 22–CA–178591, 22–
CA–179007, 22–CA–180206, 22–CA–180213, 22–
CA–181423 and 22–CA–183609
March 31, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On January 7, 2019, Administrative Law Judge Ken-
neth W. Chu issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and the Charging Party Union filed answering
briefs, and the Respondent filed a combined reply brief to
the answering briefs. The General Counsel also filed lim-
ited exceptions and a supporting brief, the Respondent
filed an answering brief, and the General Counsel filed a
reply.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.2
The judge found, among other things, that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by suspend-
ing and then discharging employees Claudio Gutierrez,
Bruce Scherer, and Nafis Vlashi because of their union ac-
tivities at its Fair Lawn, New Jersey plant. The judge also
found that, after the parties’ collective-bargaining agree-
ment had expired, the Respondent violated Section 8(a)(5)
and (1) by unilaterally (1) lengthening the time required
for employees to return to work from short-term disability
(STD) leave, (2) eliminating the Union’s right to meet sep-
arately with newly hired unit employees during their ori-
entations, and (3) modifying the work schedules of Bro-
ken and Refused Product (B & R) department employees
in June 2016 and, again, in December 2016. The judge
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility determinations. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s dismissal of alle-
gations that the Respondent violated Sec. 8(a)(5) and (1) by ceasing to
honor new employee authorizations for dues deductions and Sec. 8(a)(3)
also found that the Respondent violated Section 8(a)(5)
and (1) by failing to furnish or timely furnish two sets of
presumptively relevant information that the Union first re-
quested on May 13, 2016, and July 7, 2016, respectively.
The Respondent excepts to each of these violation find-
ings.
The judge dismissed an allegation that the Respondent
violated Section 8(a)(5) and (1) on or about April 11,
2016, by unilaterally departing from the use of seniority
when selecting employees for temporary layoff by retain-
ing eight newly hired employees who were in the shop-
floor observation phase (second week) of their orientation.
The General Counsel excepts to that dismissal.
We affirm all of the judge’s findings of violations and
dismissals, with the following clarifications.
1. Unlawful Suspension and Discharge Findings. The
Respondent contended that Gutierrez, Scherer, and Vlashi
were suspended and then discharged because a study of
the Fair Lawn plant’s high overtime costs revealed that
they had falsified time records and had left their work ar-
eas without permission. The General Counsel and the Un-
ion countered that the three were suspended and dis-
charged because of their open and forceful union activi-
ties. Because the reason for the suspensions and dis-
charges was disputed, the judge applied the Wright Line3
framework to determine whether those actions were un-
lawfully motivated.
Under Wright Line, the General Counsel bears the ini-
tial burden of establishing that an employee’s union or
other protected concerted activity was a motivating factor
in the employer’s adverse employment action. Id. at 1089.
The Board has held that the General Counsel can meet this
burden by establishing (1) union or other protected activ-
ity by the employee, (2) employer knowledge of that ac-
tivity, and (3) antiunion animus, or animus against pro-
tected activity, on the part of the employer. See, e.g., Con-
solidated Bus Transit, 350 NLRB 1064, 1065 (2007),
enfd. 577 F.3d 467 (2d Cir. 2009).4 After the judge issued
his decision in this case, the Board clarified the animus
element of this test in Tschiggfrie Properties, Ltd., 368
NLRB No. 120, slip op. at 5–8 (2019). There, the Board
explained that the General Counsel “does not invariably
sustain his burden of proof under Wright Line whenever,
and (1) by suspending employee Richard Nazzaro.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and to our amended remedy. We
shall substitute a new notice to conform to the Order as modified.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
4 We adopt the judge’s finding, for the reasons he stated, that the
General Counsel proved that Gutierrez, Scherer, and Vlashi engaged in
union activity and that the Respondent knew of that activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
in addition to protected activity and knowledge thereof,
the record contains any evidence of the employer’s animus
or hostility toward union or other protected activity.” Id.,
slip op. at 7 (emphasis in original). “Instead, the evidence
must be sufficient to establish that a causal relationship
exists between the employee’s protected activity and the
employer’s adverse action against the employee.” Id., slip
op. at 8.
The judge found that the Respondent harbored anti-
union animus against Gutierrez, Scherer, and Vlashi. For
the reasons that follow, we find that the evidence cited by
the judge amply establishes that a causal relationship ex-
isted between these employees’ union activities and the
Respondent’s adverse action against them, consistent with
the principles stated in Tschiggfrie.
Gutierrez and Scherer had been union stewards for two
decades; Vlashi was formerly a union steward for 8 years
and had been president of the Union since January 2016.
All three had been prominent advocates for the Union and
were sometimes locked in heated disputes with the Re-
spondent. For example, Gutierrez had protested the Re-
spondent’s unlawful unilateral changes. Scherer had chal-
lenged, successfully, its use of outside contractors to per-
form overtime work belonging to unit employees. In his
role as union president, Vlashi had participated in difficult
negotiations for a successor contract and had opposed the
Respondent’s outsourcing of unit work to Mexico. As a
protest measure, Gutierrez, Scherer, and Vlashi hung an
American flag at the entrance to the employee locker
room. The Respondent ordered them to remove it. There-
after, Gutierrez and Scherer, along with other employees,
added union logos to the back of company-issued t-shirts
and wore them to work. The Respondent directed these
employees, including Gutierrez and Scherer, to remove
and return the shirts. These protests, and the Respondent’s
reactions to them, took place within a few months of the
Respondent’s decision to suspend and discharge the three
employees. This temporal proximity provides some evi-
dence of a causal link between the employees’ union ac-
tivities and their loss of employment. See, e.g., Velox Ex-
press, Inc., 368 NLRB No. 61, slip op. at 10–11, 29 (2019)
(affirming judge’s finding that timing supported prima fa-
cie case); Napleton 1050, Inc. d/b/a Napleton Cadillac of
Libertyville, 367 NLRB No. 6, slip op. at 15 (2018) (citing
cases).
The Respondent attempts to explain the timing of the
three employees’ suspensions in June 2016 by asserting
that, in May, it had begun compiling evidence of time theft
by certain employees as part of its inquiry into excessive
overtime at the Fair Lawn plant. That explanation fails,
however, for several reasons.
First, at the hearing, the Respondent’s witnesses
repeatedly testified that the purpose of the overtime study
was not to create grounds for discipline but rather to assess
and rectify the plant’s unacceptably high overtime costs.
Yet once the Respondent had discharged Gutierrez,
Scherer, and Vlashi, it immediately halted the study with-
out taking any action with regard to its overtime cost prob-
lem. As the judge found, the Respondent failed to offer a
credible reason for this sudden change of course. The Re-
spondent’s abrupt and insufficiently explained abandon-
ment of the overtime study at the Fair Lawn plant, contrary
to its stated purpose, suggests that, whatever the initial rea-
son for the study, in practice it devolved into a pretext for
ridding the Respondent of three high-profile and com-
bative union representatives. See, e.g., GATX Logistics,
Inc., 323 NLRB 328, 335–336 (1997) (inconsistent ration-
ales and failure to address asserted problem underlying
discharge indicate pretext), enfd. 160 F.3d 353 (7th Cir.
1998).
Second, the judge found, and we agree, that the Re-
spondent’s investigations of the three employees’ alleged
misconduct were truncated and that neither the employees
nor the Union had a reasonable opportunity to respond.
The Board, with court approval, has often found similar
evidence probative of unlawful animus. See, e.g., Airgas
USA, LLC, 366 NLRB No. 104, slip op. at 3 fn. 12 (2018)
(employer’s failure to conduct a meaningful investigation
was proof of discriminatory intent), enfd. 916 F.3d 555
(6th Cir. 2019); New Orleans Cold Storage Co., 326
NLRB 1471, 1477 (1998), enfd. 201 F.3d 592 (5th Cir.
2000).
Third, the Respondent suspended and discharged
Gutierrez, Scherer, and Vlashi for falsifying time records,
while taking no action against other employees who en-
gaged in the same misconduct, some of whom were more
egregious offenders than the discriminatees. In the course
of its overtime study, the Respondent compiled two lists:
employees with the most turnstile swipes (indicating en-
trances into and exits from the plant) over the course of 16
weeks, and employees with the most overtime during
those same 16 weeks. The idea was that employees with
the most overtime would be inside the plant, working, and
therefore should not have many turnstile swipes. As a re-
sult, the assumption was that working high overtime hours
and having numerous turnstile swipes would be indicative
of not working while on overtime—i.e., of stealing time.
The Respondent determined that five employees had
both high overtime hours and high turnstile swipes. The
high number for one of the five, Tommy Jacobs, was ex-
plained by the nature of his duties. Of the four remaining
employees, however, the Respondent took action against
only one: Vlashi. With regard to those employees who
only had a high number of turnstile swipes, the
MONDELEZ GLOBAL, LLC 3
Respondent compiled a “high turnstile swipes” list and,
thereafter, reviewed the video records from a security
camera located at the turnstiles. However, even though
Vlashi was sixth on the “high turnstile swipes” list,
Scherer was thirteenth, and Gutierrez did not even appear
on list, the Respondent chose to examine only the video
evidence pertaining to those three employees.5 The judge
found that the Respondent never credibly explained why
it targeted Vlashi, Scherer, and Gutierrez in this way. The
judge also detailed other evidence of the Respondent’s
disparate treatment of these three employees.
This evidence supports an inference that stealing time
was not the real reason why Gutierrez, Scherer, and Vlashi
were discharged. See, e.g., Ozburn-Hessey Logistics, LLC
v. NLRB, 833 F.3d 210, 223–224 (D.C. Cir. 2016) (lack of
evidence that employer discharged others for similar of-
fenses shows pretext); Tschiggfrie, supra, 368 NLRB No.
120, slip op. at 5 (same); La Gloria Oil & Gas Co., 337
NLRB 1120, 1124 (2002) (finding that disparate treatment
evidences pretextual motive), affd. 71 Fed. Appx. 441 (5th
Cir. 2003). As recognized in Electrolux Home Products,
368 NLRB No. 34 (2019), “the Board may infer from the
pretextual nature of an employer’s proffered justification
that the employer acted out of union animus, ‘at least
where . . . the surrounding facts tend to reinforce that in-
ference.’” Id., slip op. at 3 (quoting Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (empha-
sis in Electrolux)). The surrounding facts here serve to
reinforce that inference, including the Respondent’s cur-
sory investigations and, especially, its sudden and insuffi-
ciently explained abandonment of the overtime study after
Vlashi, Scherer, and Gutierrez were discharged, without
addressing the systemic overtime issue at Fair Lawn, con-
trary to the study’s stated purpose.
In sum, for the reasons stated above and by the judge,
we affirm the judge’s finding that the General Counsel met
his initial Wright Line burden.6 We also agree, for the rea-
sons stated by the judge, with his finding that the Respond-
ent failed to prove that it would have suspended and dis-
charged Vlashi, Scherer, and Gutierrez even absent their
union activities. Accordingly, we affirm the judge’s find-
ing that the Respondent violated Section 8(a)(3) and (1)
by suspending and discharging Nafis Vlashi, Bruce
Scherer, and Claudio Gutierrez.
2. Unilateral Increase in Time to Return to Work from
5 In all, there were nine employees who ranked higher on the list than
Gutierrez; number one on the list had retired and number four was Ja-
cobs, whose unique circumstances are discussed above.
6 We also note that the Respondent’s unlawful unilateral changes and
refusals to furnish relevant information, discussed below, provide addi-
tional support that the General Counsel met his prima facie case to
demonstrate that the Respondent harbored union animus. See, e.g.,
STD Leave. We affirm the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
increasing the time required for employees to return from
short-term disability leave to active, paid work. Employ-
ees historically had been able to return to active duty
within about a day after being medically cleared to work.
Under its revised policy, the Respondent extended that
timeframe from at least 2 to as many as 7 workdays. It did
so without giving the Union notice and opportunity to bar-
gain. The Respondent defended this admittedly unilateral
change by invoking the “sound arguable basis” standard.
Under this standard, an employer’s unilateral action may
be lawful if it is based on a reasonable interpretation of
language contained in a collective-bargaining agreement.
That standard, however, applies only to allegations that an
employer has unlawfully modified a provision of a collec-
tive-bargaining agreement during its term in violation of
Section 8(a)(5) of the Act within the meaning of Section
8(d). It is inapplicable where, as here, the allegation is that
the employer has unilaterally changed a term and condi-
tion of employment after the collective-bargaining agree-
ment has expired. See, e.g., Bath Iron Works Corp., 345
NLRB 499, 501–503 (2005) (explaining the difference be-
tween contract modification cases to which the “sound ar-
guable basis” test applies and unilateral change cases),
affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB,
475 F.3d 14 (1st Cir. 2007). Under the principles stated
in NLRB v. Katz, 369 U.S. 736 (1962), the General Coun-
sel establishes an unlawful unilateral change by showing
“that there is an employment practice concerning a man-
datory bargaining subject, and that the employer has made
a significant change thereto without bargaining.” Bath
Iron Works, 345 NLRB at 501 (emphasis in original).
Consequently, in affirming the judge’s violation finding,
we do not rely on the “sound arguable basis” test but rather
on his finding that the increase in STD return time unilat-
erally changed the status quo.
3. Unilateral Changes in B & R Department Schedules.
We affirm the judge’s finding that the Respondent’s uni-
lateral changes in the B & R department shift schedules
violated Section 8(a)(5) and (1) but find that a clarification
of his legal analysis is required. In June 2016, the Re-
spondent changed the shift start times in that department
from 6 a.m., 2 p.m., and 10 p.m. to 7 a.m., 3 p.m., and 11
p.m., respectively, without first giving the Union
Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 12
(2018) (employer’s bargaining violations “further demonstrate its ani-
mus”); Circle City Asphalt, LLC, 330 NLRB 282, 285 (1999) (Board
adopts judge’s Wright Line violation finding based, in part, on his con-
clusion that Section 8(a)(5) violations “constitute[d] evidence of union
animus”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
reasonable advance notice of the change and an oppor-
tunity to request bargaining. In December 2016, after the
Union had filed an unfair labor practice charge, the Re-
spondent changed those start times back, again without
giving the Union notice and opportunity to bargain. The
Respondent defended these changes as based on a plausi-
ble interpretation of an article in the expired collective-
bargaining agreement, and the judge rejected the defense
in part on the basis that the Respondent’s interpretation of
the agreement was not plausible. To this extent, the judge
applied the “sound arguable basis” standard in deciding
this allegation, which is inapplicable for the reasons stated
above. Applying the unilateral change standard, there is
no dispute that the B & R department shift schedules had
been fixed for some time until the Respondent altered
them twice in 2016. Likewise, there is no question that
the Respondent changed the shift schedules materially
without giving the Union notice and opportunity to request
bargaining. On this basis, we affirm the judge’s finding
that the Respondent violated Section 8(a)(5) and (1).
4. Dismissal of Allegation of Unilateral Departure from
Use of Seniority When Selecting Employees for Layoff.
The judge dismissed the allegation that the Respondent
unilaterally changed its layoff-by-seniority policy in vio-
lation of Section 8(a)(5) and (1) when, in April 2016, it
laid off 44 employees for 1 week while retaining eight
newly hired employees who were in their second week of
orientation and were observing, but not performing, work
on the shop floor. In so ruling, the judge found the Re-
spondent’s interpretation of the expired contract to be
“reasonable and plausible,” and he relied on the “sound
arguable basis” standard. Again, this test is inapplicable
for the reasons stated above.
We nevertheless agree with the judge’s dismissal of this
complaint allegation because the General Counsel failed
to prove a status quo of laying off new employees in their
second week of orientation before more senior employees.
There is no record evidence involving the treatment, for
layoff purposes, of new employees in week two of orien-
tation. However, there is evidence that the Union had al-
lowed the Respondent to exclude newly hired employees
in week one of orientation from a previous layoff. There
was also testimony that the Union filed but then withdrew
a grievance regarding another layoff that excluded newly
hired employees. Accordingly, in affirming the judge’s
dismissal of this allegation, we rely on the General Coun-
sel’s failure to prove that including employees still in ori-
entation in layoffs determined by seniority was an estab-
lished term or condition of employment. Without proof of
such an established practice, the General Counsel has
7 To avoid unfavorable consequences for affected employees,
failed to establish a unilateral change. See, e.g., Sunoco,
Inc., 349 NLRB 240, 244 (2007).
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative actions designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and (1)
by suspending and discharging employees Claudio
Gutierrez, Bruce Scherer, and Nafis Vlashi, we shall order
the Respondent to offer them full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed,
and to make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in rel-
evant part 859 F.3d 23 (D.C. Cir. 2017), we shall also or-
der the Respondent to compensate Gutierrez, Scherer, and
Vlashi for their reasonable search-for-work and interim
employment expenses regardless of whether those ex-
penses exceed interim earnings. Search-for-work and in-
terim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra.
Additionally, we shall order the Respondent to compen-
sate Gutierrez, Scherer, and Vlashi for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards,
and to file with the Regional Director for Region 22,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
of them. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016). We also shall order the Respondent to remove
from its files any references to the unlawful suspensions
and discharges of Gutierrez, Scherer, and Vlashi and to
notify them in writing that this has been done and that the
unlawful suspensions and discharges will not be used
against them in any way.
Further, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by making certain unilateral changes
to employment terms and conditions, we shall order the
Respondent to rescind the unilateral changes7 and restore
remedies affecting B & R department work schedules are conditioned on
MONDELEZ GLOBAL, LLC 5
the status quo. We also shall order the Respondent to
make employees whole for any losses sustained as a result
of the unlawful changes in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as set forth in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra. In addition, in accordance
with AdvoServ, supra, we shall order the Respondent to
compensate employees for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and to file
with the Regional Director for Region 22, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
award to the appropriate calendar years for each em-
ployee.
Moreover, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to provide the Union
with relevant information that was first requested on May
13, 2016, and July 7, 2016, and by unreasonably delaying
in furnishing requested information, we shall order the Re-
spondent to timely provide that information to the Union
to the extent it has not already done so.
Finally, the judge’s recommended order included a
broad order to cease and desist from violating the Act “in
any other manner,” and a provision requiring the Re-
spondent to mail copies of the notice to Gutierrez, Scherer,
and Vlashi. The judge did not justify these remedies, and
although the Respondent did not relevantly except, the
Board has broad discretion under Section 10(c) of the Act
to fashion appropriate remedies and may exercise its dis-
cretion to do so even in the absence of exceptions. See,
e.g., Indian Hills Care Center, 321 NLRB 144, 144 fn. 3
(1996).
A broad cease-and-desist order is warranted when a re-
spondent has been shown to “have a proclivity to violate
the Act or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the
employees’ fundamental statutory rights.” Hickmott
Foods, 242 NLRB 1357, 1357 (1979). The General Coun-
sel has not established that the Respondent is a recidivist.
Additionally, the violations we have found in this case are
not so egregious or widespread as to warrant a finding that
the Respondent has evinced a general disregard for em-
ployees’ rights under the Act. Consequently, we have sub-
stituted a narrow cease-and-desist order for the broad or-
der recommended by the judge.
As to the notice-mailing remedy, the Board does not
typically require notices to be mailed to unlawfully dis-
charged employees. Since the Respondent will be
a request by the Union.
8 We also have corrected several inadvertent errors in the judge’s
required to offer reinstatement to the three discriminatees
within 14 days from the date of the Order, and since it
must post the remedial notice within 14 days after service
by the Region and must keep it posted for 60 days there-
after, Vlashi, Scherer, and Gutierrez will have the oppor-
tunity to read the posted notice, assuming they accept the
offer of reinstatement and do so reasonably promptly. We
have stressed that, like other extraordinary relief, notice
mailing not conditioned on a plant closing is “rarely”
granted. See Delta Sandblasting Co., 367 NLRB No. 17,
slip op. at 1 fn. 3 (2018) (emphasis in original). The judge
offered no reason for departing from this long-settled
Board norm, and we have omitted the recommended no-
tice-mailing remedy.8
ORDER
The National Labor Relations Board orders that the Re-
spondent, Mondelez Global, LLC, Fair Lawn, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against employees because of their support for the Un-
ion or because they have otherwise engaged in protected
concerted activities.
(b) Unilaterally changing terms and conditions of em-
ployment of its unit employees, including increasing the
amount of time required to return to work from short-term
disability leave, eliminating the Union’s right to meet pri-
vately with newly hired unit employees during their orien-
tations, and modifying the work schedules of unit employ-
ees in the B & R department.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees and by un-
reasonably delaying in furnishing requested information.
(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. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Claudio Gutierrez, Bruce Scherer, and Nafis Vlashi 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) Make Claudio Gutierrez, Bruce Scherer, and Nafis
Vlashi whole for any loss of earnings and other benefits
recommended order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
suffered as a result of the discrimination against them, in
the manner set forth in the amended remedy section of this
decision.
(c) Compensate Claudio Gutierrez, Bruce Scherer, and
Nafis Vlashi for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the
Regional Director for Region 22, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years for each of them.
(d) Within 14 days from the date of this Order, remove
from its files any references to the unlawful suspensions
and discharges, and within 3 days thereafter, notify Clau-
dio Gutierrez, Bruce Scherer, and Nafis Vlashi in writing
that this has been done and that the suspensions and dis-
charges will not be used against them in any way.
(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, 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, neces-
sary to analyze the amounts of backpay due under the
terms of this Order.
(f) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
The baking, packing, warehouse, environmental,
maintenance and repair, distribution and garage employ-
ees working at the Fair Lawn facility, excluding super-
visors.
(g) Rescind the increase in the amount of time required
to return from short-term disability leave that was unilat-
erally implemented on or about March 15, 2016.
(h) Restore the Union’s right to meet privately with
newly hired employees during their orientations that was
unilaterally eliminated in or around March 2016.
(i) On request by the Union, rescind any unilateral
changes to the work schedules of B & R department em-
ployees.
(j) Make whole affected employees in the above-de-
scribed unit for any loss of earnings or other benefits re-
sulting from the unlawful unilateral changes.
9 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
(k) Compensate such affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for Re-
gion 22, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar years
for each employee.
(l) Furnish to the Union in a timely manner the infor-
mation that it first requested on or about May 13, 2016,
and July 7, 2016, to the extent it has not already done so.
(m) Within 14 days after service by the Region, post at
its Fair Lawn, New Jersey facility copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, the notice 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 such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If 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 em-
ployees employed by the Respondent at its Fair Lawn fa-
cility at any time since March 15, 2016.
(n) Within 21 days after service by the Region, file with
the Regional Director for Region 22 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. March 31, 2020
_____________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
MONDELEZ GLOBAL, LLC 7
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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 ac-
tivities.
WE WILL NOT discharge, suspend, or otherwise discrim-
inate against you for supporting the Union or otherwise
engaging in protected concerted activities.
WE WILL NOT unilaterally change terms and conditions
of employment of our unit employees, including increas-
ing the amount of time required to return to work from
short-term disability leave, eliminating the Union’s right
to meet privately with newly hired unit employees, and
modifying the work schedules of unit employees in the B
& R department.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees or by unreasonably
delaying in furnishing requested information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Claudio Gutierrez, Bruce Scherer, and Nafis
Vlashi 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.
WE WILL make Claudio Gutierrez, Bruce Scherer, and
Nafis Vlashi whole for any loss of earnings and other ben-
efits resulting from their suspensions and discharges, less
any interim earnings, plus interest, and WE WILL also make
them whole for any reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate Claudio Gutierrez, Bruce Scherer,
and Nafis Vlashi for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and WE WILL file
with the Regional Director for Region 22, within 21 days
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
award to the appropriate calendar years for each of them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the unlaw-
ful suspensions and discharges of Claudio Gutierrez,
Bruce Scherer, and Nafis Vlashi, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the suspensions and discharges will not be
used against them in any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
The baking, packing, warehouse, environmental,
maintenance and repair, distribution and garage employ-
ees working at the Fair Lawn facility, excluding super-
visors.
WE WILL rescind the increase in the amount of time re-
quired to return from short-term disability leave to active,
paid work.
WE WILL restore the Union’s right to meet privately
with newly hired employees during their orientations.
WE WILL, on request by the Union, rescind any unilat-
eral changes to the work schedules of B & R department
employees.
WE WILL make whole affected employees in the above-
described unit for any loss of earnings or other benefits
resulting from our unlawful unilateral changes.
WE WILL compensate such affected employees for the
adverse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 22, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years for each employee.
WE WILL furnish to the Union in a timely manner the
information that it first requested on or about May 13,
2016, and July 7, 2016, to the extent we have not already
done so.
MONDELEZ GLOBAL, LLC
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-174272 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.
Tara Levy, Esq., for the General Counsel.
Donald D. Gamburg, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), for the Respondent.
Joshua B. Shiffrin, Esq. and Julie A. Donahue, Esq. (Bredhoff &
Kaiser, P.L.L.C.), for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was
tried in Newark, New Jersey, on November 28, 30, December 1,
2017, March 12, 13, 14, and 15, 2018. The Bakery, Confection-
ery, Tobacco Workers, and Grain Millers International Union,
Local 719, AFL–CIO (Union) filed charges on April 15, June 14,
17, 23, July 14, August 3, and September 1, 2016,1 with the Na-
tional Labor Relations Board (NLRB). A consolidated com-
plaint was issued by Region 22 on December 30 alleging viola-
tions of the National Labor Relations Act (Act). Mondelez
Global, LLC (Respondent), timely filed an answer denying the
material allegations in the complaint (GC Exh. 1).2
On the entire record, including my assessment of the wit-
nesses’ credibility and my observation of their demeanor at the
hearing and corroborating the same with the adduced evidence
of record, and after considering the posthearing briefs filed by
the General Counsel, the Union and the Respondent,3 I make the
following
JURISDICTION AND UNION STATUS
The Respondent operates a business of a bakery production
plant with a warehouse facility and office in Fair Lawn, New
Jersey, where it derived gross revenue in excess of $250,000 and
purchased and received goods in the course and conduct of its
1 All dates are in 2016 unless otherwise indicated.
2 The exhibits for the General Counsel are identified as “GC Exh.,”
“Charging Party’s exhibits are identified as “CP Exh.,” and Respond-
ent’s exhibits are identified as “R. Exh.” The closing briefs are identified
as “GC Br.” and “R. Br.” for the General Counsel and the Respondent,
respectively and “CP Br.” for the Charging Party Union. The hearing
transcript is referenced as “Tr.”
3 The counsel for the Charging Party Union and the General Counsel
moved to submit a “corrected version” of CP Exh. 15 posthearing and
operations valued in excess of $50,000 directly from points out-
side the State of New Jersey. The Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It is not disputed, and I
find that the Bakery, Confectionery, Tobacco Workers, and
Grain Millers International Union, Local 719, AFL–CIO, is a la-
bor organization within the meaning of Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
The enumerated paragraphs in the consolidated and amended
complaint state that
23. On or about June 13, 2016, Respondent, by its agent, Don
Kalemba, suspended its employee, Richard Nazzaro.
24. a. On or about June 15, 2016, Respondent, by its agent,
Erica Clark-Muhammad,suspended its employee, Claudio
Gutierrez.
b. On or about July 1, 2016, Respondent, by its agent,
Erica Clark-Muhammad, terminated its employee, Claudio
Gutierrez.
25. a. On or about June 15, 2016, Respondent, by its agent,
Erica Clark-Muhammad,suspended its employee, Bruce
Scherer.
b. On or about July 1, 2016, Respondent, by its agent,
Erica Clark-Muhammad, terminated its employee, Bruce
Scherer.
26. a. On or about June 15, 2016, Respondent, by its agent,
Erica Clark-Muhammad, suspended its employee, Nafis
Vlashi.
b. On or about July 1, 2016, Respondent, by its agent,
Erica Clark-Muhammad, terminated its employee, Nafis
Vlashi.
28. a. On about March 15, 2016, the Respondent changed the
length of time an employee must wait after submitting a doc-
tor’s note before returning to work from an absence of five or
more days;
b. In about April 2016, the Respondent selected employ-
ees for layoff who were not the most junior employees, con-
trary to the employer’s policy of laying off employees by sen-
iority;
c. In about April 2016, by Human Resources Manager
Erica Clark-Muhammad, the Employer began refusing access
by the Union representatives to new hires during their orienta-
tion;
d. In about June 2016, the Respondent changed the work
schedules of the B and R Processors who work in its ware-
house;
e. In about December 2016, the Respondent changed the
work schedules of the B and R Processors who work in its
the Respondent opposed the submission on June 11, 2018. Inasmuch as
the record was closed on March 15 except for posthearing briefs, I find
that it would be inappropriate to reopen the record without the oppor-
tunity for the counsel for the Respondent to examine and inquire about
the documents and potentially subpoena witnesses named in the docu-
ments in the “revised” CP Exh. 15. In addition, I agree with the argument
of the Respondent’s counsel that the evidence contained in the “corrected
version” of CP Exh. 15 is not newly discovered evidence.
MONDELEZ GLOBAL, LLC 9
warehouse;
f. In about May 2016, by Human Resources Assistant Ta-
sha McCutcheon, the employer began having one of its repre-
sentatives accompany the Union representative when he met
with employees at new orientation; and
g. In about August 2016, the Respondent began requiring
employees to complete “Behavior Observation Sheets” de-
scribing the behavior of a coworker.4
31. a. Since about May 13, 2016, the Union requested that
the Respondent provide it with the names of anyone disciplined
for violations of its clock-in-clock-out policy from March 1,
2006 through March 1, 2016.
b. Since about July 7, 2016, the Union requested that the
Respondent provide it with information concerning new hires.
32. The information requested by the Union as described in
paragraph 31(a) and (b) is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collective-
bargaining representative of the Unit.
33. a. Since about May 2016, Respondent has failed and re-
fused to provide the Union with the information described in
paragraph 31(a).
b. Since about July 2016, Respondent has failed and re-
fused to provide the Union with the information described in
paragraph 31(b).5
35. In and after May 2016, the Respondent failed to continue
in effect all the terms and conditions of the collective-bargain-
ing agreement by ceasing to honor employee authorizations for
dues deductions.
The complaint alleges that Respondent engaged in the conduct
described above in paragraphs 23 through 26 because the named
employees of Respondent assisted the Union and engaged in
concerted activities, and to discourage employees from engaging
in these activities in violation of Section 8(a)(3) and (1) of the
Act.
The complaint alleges that Respondent engaged in the conduct
described in paragraphs 28(a) through (g), 30, and 33 without
affording the Union an opportunity to bargain collectively with
Respondent with respect to the conduct in violation of Section
8(a)(5) of the Act.
Finally, the complaint alleges that by the conduct described in
paragraph 35, the Respondent failed and refused to bargain with
the Union in violation of Section 8(d) of the Act.
FINDINGS OF FACT
a. Background
The Respondent operates a business of a bakery production
plant with a warehouse facility and office in Fair Lawn, New
Jersey. The facility produces Ritz crackers, Oreo cookies, and
4 At the hearing, the counsel for the General Counsel withdrew the
allegation in paragraph 28(c) (“In about April 2016, by Human Re-
sources Manager Erica Clark-Muhammad, the Employer began refusing
access by the Union representatives to new hires during their orienta-
tion”) and corrected the year when the allegations occurred from 2006 to
2016 in par. 33(a) of the complaint (Tr. 10). The General Counsel also
withdrew the allegation in pars. 28(g) (“In about August 2016, the
other baked products. The Bakery, Confectionery, Tobacco
Workers, and Grain Millers International Union (BCTGM), Lo-
cal 719, AFL–CIO represents the baking, packing, warehouse,
environmental, maintenance and repair, distribution and garage
employees (excluding supervisors) working at the facility. Local
719 has been the exclusive bargaining representative of the pro-
duction employees in the facility since 1958. The Respondent’s
predecessor, Kraft Foods Global, Inc., and the Union were par-
ties to a collective-bargaining agreement, effective February 29,
2012, through February 29, 2016 (GC Exh. 3). In conjunction
with BCTGM and other BCTGM locals, Local 719 began nego-
tiations with the Respondent for a successor contract in spring
2016. According to the Union, negotiations have not been suc-
cessful and the BCTGM and its affiliates began a national boy-
cott campaign against the Respondent for outsourcing produc-
tion work to Mexico.
b. The Local 719 union activities in Spring 2016 and the
Respondent’s antiunion animus
As part of the publicity campaign against the outsourcing and
the failure to reach a contract, Local 719 engaged in several un-
ion activities, such as holding union rallies in front of the Fair
Lawn plant in April and May; distributed union literature at Re-
spondent sponsored events; posted union activities, such as the
rallies, on Facebook; organized a day where all union members
wore T-shirts with a defiant union logo while working in the
plant; placed an American flag by the employees’ locker rooms;
and distributed union literature in the employee cafeteria and
other areas in the plant (further discussed below). As of the date
of trial, a successor agreement has not been reached. The coun-
sel for the General Counsel contends that the Respondent was
not happy with the union activities and engaged in antiunion an-
imus conduct during this spring timeframe.
Stanley Milewski (Milewski) testified that he is the financial
secretary treasurer and business agent for the Union for the past
5 years. Milewski handles contracts, financial matters, dues re-
mittances from members, and other administrative matters for
the Union. Milewski also served as the union local president
from 2006 to 2012.
Milewski testified that the Union and Respondent met to ne-
gotiate a new contract from February through April 2016 (Tr.
107). As part of the campaign for a new contract and to protest
the outsourcing of production to a foreign country, the Union
held rallies in front of the Fair Lawn plant on April 25 and 26.
Milewski stated that the rallies were publicized on his Facebook
page and pictures of the union members at the rallies were posted
on Facebook (CP Exh. 3). Milewski believed that Respondent’s
management and supervisors had knowledge of the rallies since
they were held in front of the plant.
Milewski complained of antiunion sentiments against the Lo-
cal. Milewski recalled an incident when he was refused
Respondent began requiring employees to complete Behavior Observa-
tion Sheets describing the behavior of a coworker”) in the consolidated
and amended complaint (Tr. 661).
5 At the hearing, the counsel for the General Counsel amended pars.
33(a) and 33(b) to read as follows: “Respondent has unreasonably de-
layed, failing and refusing to provide the Union with the information”
(Tr. 10).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
attendance by Erica Clark-Muhammad (Clark-Muhammad),6 the
human resources director, at a labor management meeting on
March 20 because Milewski was wearing a union logo shirt to
the meeting. Milewski was told to take off his shirt for the meet-
ing and when he refused, a guard escorted Milewski out.
Milewski said that a guard later told him that he could return to
the meeting after Clark-Mohammad said the shirt was not offen-
sive to management.
Richard Nazzaro (Nazzaro) testified that he was employed as
a welder mechanic for the past 9 years and had previously served
as a shop steward and has served as the Union local vice presi-
dent since 2016. Nazzaro said he was involved in the February-
May contract negotiations and attended the April union rallies in
front of the plant. Nazzaro recalled a total of four rallies on May
9, 12, April 25 and 26. Nazzaro said that he was coordinating
the rallies and directing the union members during the rallies.
Nazzaro said he spoke at the rallies and believed his supervisor
saw him at the rallies.
Nazzaro also recalled an incident when most of the workers
wore T-shirts with the union logo on the back of the shirt to the
plant and were told by the plant manager to return their T-shirts
to the Respondent. Nazzaro said that the T-shirts were issued by
the Respondent, but once the shirts were received by the work-
ers, they were kept and maintained by the employees (CP Exh.
17). Nazzaro believed that this incident occurred just prior to the
February contract negotiations.
Claudio Gutierrez (Gutierrez) testified that he has been a shop
steward for over 20 years and is involved in preparing the over-
time schedule on behalf of the Respondent for the weekend and
on overtime nights. Gutierrez is supervised by Jerry Luchansky
and is informed by the supervisor whenever there is a need to
have workers for overtime. Gutierrez would, in turn, canvas the
workers to assess who would want overtime and prepare their
overtime schedules in accordance with seniority.
Gutierrez complained about an incident in January 2016 when
Luchansky used a contractor to perform overtime work on a Sat-
urday. Gutierrez informed the supervisor that the contractor was
not qualified to perform the work and there were employees who
could do the work on Sunday. Luchansky rejected the sugges-
tion and Gutierrez elevated the situation with John Lissi, who
was the safety coordinator at the time; because Gutierrez be-
lieved that there was a safety issue with the unqualified contrac-
tor. According to Gutierrez, Lissi agreed and told the contractor
to stop the work because they were not trained to clean the pro-
duction equipment.
Gutierrez recalled a second incident involving utility workers
in March 2016. He again told management that they were not
qualified to do the work. Gutierrez said he was informed by the
Shift Manager, Dan Calibrese, that the utility workers would re-
main to perform the work because the “union did not have a con-
tract.” Gutierrez also said that Dawn Sprague told him and other
workers in March/April 2016 that they did not have a contract
and if “they don’t do what is told, they will be fired.” Sprague
was the HR supervisor at the time. Gutierrez told Sprague that
the Union still has a contract under the expired contract.
6 Clark-Muhammad was the former human resources manager for the
Respondent at the time of these events. Clark-Muhammad was not called
Gutierrez was aware of the union rallies but did not participate
in them. Gutierrez was involved in the union logo T-shirt inci-
dent in February and was told by Charlotta Kuratli, the plant
manager at the time, to return his shirt.
THE ALLEGED UNILATERAL CHANGES IN VIOLATION OF
SECTION 8(A)(5) OF THE ACT
The General Counsel alleges that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing changes
to the terms and conditions of the workers without first bargain-
ing with the Union (GC Br. at 8). The consolidated and amended
complaint alleges that Respondent violated Section 8(a)(5) and
(1) of the Act when (1) On about March 15, 2016, the Respond-
ent changed the length of time an employee must wait before
returning to work after submitting a doctor’s note when absent
for 5 or more days; (2) In about April 2016, the Respondent
selected employees for layoff who were not the most junior em-
ployees, contrary to the employer’s policy of laying off employ-
ees by seniority; (3) In about May 2016, the Respondent by HR
Assistant Tasha McCutcheon, demanded the employer have one
of its representatives accompany Milewski when he met with
employees at new orientation; and 4) In about June and Decem-
ber 2016, the Respondent changed the work schedules of the B
and R Processors who work in its warehouse (GC Br. at 6–8).
Applicable Legal Standards
Section 8(a)(5) of the Act requires an employer to provide its
employees’ representative with notice and an opportunity to bar-
gain before instituting changes in any matter that constitutes a
mandatory bargaining subject. NLRB v. Katz, 369 U.S. 736
(1962); Toledo Blade Co., 343 NLRB 385 (2004). The duty to
bargain in good faith includes a duty to abstain from unilaterally
changing terms and conditions of employment without first bar-
gaining to impasse with the designated representative regarding
the changes. NLRB v. Katz, above. In a unilateral-change case,
“the relevant inquiry . . . is whether any established employment
term on a mandatory subject of bargaining has been unilaterally
changed.” Daily News of Los Angeles v. NLRB, 73 F.3d 406, 411
(D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997). An unlawful
unilateral change “frustrates the objectives of Section 8(a)(5),”
because such a change “‘minimizes the influence of organized
bargaining’ and emphasizes to the employees ‘that there is no
necessity for a collective bargaining agent.’” Pleasantview Nurs-
ing Home v. NLRB, 351 F.3d 747, 755 (6th Cir. 2003) (quoting
Katz, supra at 744, and Loral Defense Systems-Akron v. NLRB,
200 F.3d 436, 449 (6th Cir. 1999)); Mercy Hospital of Buffalo,
311 NLRB 869, 873 (1993).
Under the unilateral change doctrine, an employer’s duty to
bargain under the Act includes the obligation to refrain from
changing its employees’ terms and conditions of employment
without first bargaining to impasse with the employees’ collec-
tive-bargaining representative concerning the contemplated
changes. The Act prohibits employers from taking unilateral ac-
tion regarding mandatory subjects of bargaining such as rates of
pay, seniority, wages, hours of employment and other conditions
of employment. Notably, an employer’s regular and
to testify by the Respondent (Tr. 1189).
MONDELEZ GLOBAL, LLC 11
longstanding practices that are neither random, nor intermittent
become terms and conditions of employment even if those prac-
tices are not required by a collective-bargaining agreement.
Mike-Sell’s Potato Chip Co., 360 NLRB 131, 138–139 (2014),
enfd. 807 F.3d 318 (D.C. Cir. 2015) (noting that the party assert-
ing the existence of a past practice bears the burden of proof on
the issue, and that the evidence must show that the practice oc-
curred with such regularity and frequency that employees could
reasonably expect the practice to continue or reoccur on a regular
and consistent basis).
Further, a unilateral change in a mandatory subject of bargain-
ing is unlawful only if it is a “material, substantial, and signifi-
cant change.” Flambeau Airmold Corp., 334 NLRB 165 (2001),
quoting Alamo Cement Co., 281 NLRB 737, 738 (1986).
In order to establish a violation of a unilateral change, the
General Counsel must establish what the terms and conditions of
employment were before the alleged change, and then establish
what the terms and conditions of employment were after the
change, and then compare the two. Golden Stevedoring Co., 335
NLRB 410, 435 (2001). A unilateral change is measured by the
extent to which it departs from the existing terms and conditions
affecting employees. Crittenton Hospital, 342 NLRB 686
(2004); Southern California Edison Co., 284 NLRB 1205 fn. 1
(1987). The unilateral changes are discussed in seriatim below.
1. The alleged unilateral change to the short-term
disability leave policy
The Respondent has a short-term disability (STD) policy that
required a worker on medical leave for 5 or more workdays to
bring a medical note with no restrictions from the doctor before
resuming work (GC Exh. 4). The worker must be cleared
through the medical department at least 24 hours before the be-
ginning of the worker’s scheduled shift. The policy specifically
states
When you are able to return to work, you must “clear” through
the Medical Department. You will need a note from your Doc-
tor stating that you can return to work with “no restrictions.”
You are required to “clear” through the Medical Department at
least twenty four (24) hours before the beginning of your
scheduled shift.
It is not disputed that this policy of requiring the worker to be
clear for work at least 24 hours before the start of the worker’s
scheduled shift has been in effect at least since 2012 since the
policy referenced the Kraft Foods Company, the former em-
ployer.
On about March 15, 2016, the Respondent issued a revised
policy (GC Exh. 5) that stated the following
When you are coming back to work, your doctor’s note must
be brought in to our Medical Department BEFORE 10:00 a.m.
on the Wednesday prior to the week that you are cleared to re-
turn to work. Failure to bring your note to Medical before 10
a.m. will result in you not being added back to the schedule for
the following week.
Vlashi testified that he was on short- and long-term disability
leave in 2009 and 2014. He stated that on both occasions, he was
allowed to immediately work after returning with a medical
clearance. Vlashi stated that on the 2009 occasion, he returned
to work on a Friday and was allowed to begin working on Mon-
day. Vlashi also stated that in 2014, he was out for 6 weeks; he
was cleared by the medical department on a Wednesday and re-
turned to work the following day on Thursday. Vlashi recalled
that another worker was told in March 2016 that she couldn’t
return to work although she was cleared to work by the medical
department within the 24-hour window period. Vlashi com-
plained to Clark-Muhammad as to whether she cleared the policy
change with the Union. Vlashi demanded that she needed to talk
to the union over the change. According to Vlashi, Clark-Mu-
hammad subsequently told him that the worker could return to
work immediately. Vlashi was also informed at that moment that
the policy was changed and that workers would be informed of
the new policy in their next paycheck. Vlashi testified that the
STD return policy was discussed at the April labor-management
meeting. Vlashi and Milewski were told by Clark-Muhammad
that “they (the Union) don’t have a contract.”
Gutierrez said that he argued with Clark-Muhammad in April
2016 on behalf of another returning employee from disability
when he could not begin work after he was cleared to work the
day before. Gutierrez said the worker was cleared the day before
but was told he could not begin work in the middle of the week
and needed to be cleared 5 days before starting work.
Milewski described his understanding of the return policy that
was in place since 2012. He stated that once a doctor clears a
worker, the worker would visit the medical department with the
doctor’s note. Milewski testified that if the worker is cleared on
a Thursday, that worker could begin work on Friday. He also
stated that if you are cleared to work on a Friday, the worker
would begin work on Monday. Milewski said he had no
knowledge of the revised policy until it was implemented on
about March 15, 2016.
Milewski confirmed that there was an April 28 labor-manage-
ment meeting about the new STD return policy. He told Clark-
Muhammad and Plant Manager Kuratli that the policy change
needed immediate attention. Milewski complained that the Un-
ion never had the opportunity to bargain over the change.
Milewski testified he was told by Clark-Muhammad that the Re-
spondent had the right to change the policy because too many
employees were on disability and it was tough to schedule people
to work. Milewski responded that scheduling workers for work
was never a problem because the Respondent always needed
people to work.
Discussion and Analysis
The counsel for the General Counsel argues that changing the
short-term disability leave policy was a unilateral change that
should have been bargained over with the Union prior to imple-
mentation. The Respondent counters that there was no “real”
change to a policy that had always required 24 hours’ notice be-
fore the next scheduled shift. The counsel for the Respondent
argues that the March 2014 restatement of the policy was to clar-
ify the fact that a worker returning from STD would necessarily
have to be cleared by Wednesday in order to be scheduled by
Thursday to begin work the following Monday. It is not disputed
that shift schedules to begin on the Monday are done by the pre-
vious Thursday (R. Br. at 44).
It is obvious that when a worker is permitted to return to work
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
affects a term and condition of employment and is a mandatory
subject for bargaining. It is also obvious that any change to the
employer’s return-to-work policy is a significant and material
change. Contrary to the position of the Respondent, I find that
there was indeed a change in the STD return policy and the
change was much more than a clarification of the existing policy.
I find that the policy under the Kraft Company allowed work-
ers to return from short-term disability leave if they are cleared
by their physician at least 24 hours before the beginning of their
scheduled shifts. This language is plain and not subject to inter-
pretation. The only dispute over the language of this policy
raised by counsel for the Respondent is that a worker returning
from STD would not have a scheduled shift since that worker has
been out of work for an indefinite period of time. As a conse-
quence of not having a scheduled shift, a returning worker could
not start until the following Monday. However, in my opinion,
a reasonable reading of this policy means that a worker, who had
a scheduled shift before being placed on STD, could return to
that same shift upon being medically cleared to work, which was
the past practice.
I credit the testimony of Milewski on this point when he testi-
fied that Clark-Muhammad told him that it was difficult to
schedule so many workers returning from disability leave. So,
the policy was changed in March to the advantage of the em-
ployer by not allowing any workers to begin work until the fol-
lowing Monday. Milewski’s testimony was not rebutted because
Clark-Muhammad did not testify. Even so, the testimony of
Milewski on this point is reasonable and consistent with the cor-
roborating testimony provided by Vlashi and Gutierrez. Vlashi
testified that he represented a worker who was not allowed to
work on Thursday after being cleared to return 24 hours before
her scheduled shift. Gutierrez was told by Clark-Muhammad
that another employee was not allowed to work for 5 days from
the time he was medically cleared to return.
In both instances, the change in policy was substantial and
material since it affected the amount of wages that worker would
earn. “The vice involved in [a unilateral change] is that the em-
ployer has changed the existing conditions of employment. It is
this change which is prohibited and which forms the basis of the
unfair labor practice charge.” Daily News of Los Angeles, 315
NLRB 1236, 1237 (1994) (Board’s brackets) (quoting NLRB v.
Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970) (court’s em-
phasis)), enfd. 73 F.3d 406 (D.C. Cir. 1996), cert. denied 519
U.S. 1090 (1997).
As such, I find that the Respondent violated Section 8(a) (5)
and (1) of the Act when it unilaterally changed its short-term dis-
ability policy without providing notice to the Union and an op-
portunity to bargain over the change.
2. The unilateral change in the layoff seniority policy
On about the week of April 11, 2016, the Respondent tempo-
rarily laid-off 44 employees for 1 week (GC Exh. 15). Under
article 5 of the expired contract in the event of a layoff, “employ-
ees on the M & R Department seniority list will be laid off in
reverse order of seniority” (GC Exh. 3 at art. 5 at p. 8).
Prior to the laid-off, the Respondent hired eight employees
(GC Exh. 10). The eight employees were not part of the Union
during the first 30 days on the job (GC Exh. 10, art. 2-
Membership). The eight employees were given classroom in-
structions during the 1st week and were on the floor to observe
first-hand the plant’s operations during their 2nd week of train-
ing. The new employees did not actually perform work and only
shadowed the activities of the work force during this time.
Milewski testified that 45−55 employees were laid-off by the
Respondent on April 11, 2016. He complained that eight junior
employees were allowed to stay over the more senior employees
who were laid-off. Milewski admitted that article 5 of the con-
tract never applied to the new recruits but maintained that if an
employee is on the production floor, that worker would be
counted for purposes of the layoff. Milewski noted that once in
the past, the Union allowed the Respondent to retain the junior
employees during a layoff because they were still in their class-
room training. He testified that the Union would allow junior
employees to stay if they were in a training class but not when
placed on the work floor (Tr. 105−107; 194).
Pamela DiStefano (DiStefano), who was the director of labor
relations for the North America region at the time, testified that
the layoffs were consistent with the CBA and past practices.
DiStefano stated that during the second week of training, the new
hires are only observing and still in orientation as to what their
positions would entail. She testified that a grievance had been
filed over retaining the newly hired in a similar situation in 2014
and the Union withdrew that grievance. (Tr. 1187, 1188, 1220;
R. Exh. 2.)
Discussion and Analysis
The counsel for the General Counsel argues that the eight
newly hired employees should have been laid-off in seniority or-
der before the Respondent reached other employees for layoff.
The General Counsel contends that retaining the new hires was
a unilateral change of a mandatory subject for bargaining. The
Respondent argues that there were no changes in the layoff pol-
icy and that its action was consistent with past practices.
Layoff policy and seniority are mandatory subjects for bar-
gaining. The decision to lay off employees for economic reasons
is clearly a mandatory subject of bargaining. Thus, absent ex-
traordinary situations involving “compelling economic circum-
stances,” an employer must provide notice to and bargain with
the union representing its employees concerning both the layoff
decision and the effects of that decision. Lapeer Foundry & Ma-
chine, Inc., 289 NLRB 952, 954–955 (1988), citing numerous
authorities, including NLRB v. Advertisers Mfg. Co., 823 F.2d
1086 (7th Cir. 1987). See also: Pan American Grain Co., 351
NLRB 1412 (2007); Tri-Tech Services, 340 NLRB 894, 895
(2003).
Here, the dispute is over the effects of the decision as to which
employees would be laid-off for 1 week. Milewski testified that
new hires while in classroom training are not counted towards
the layoffs. Milewski further testified that the new hires would
be counted towards the number of layoffs when the trainees are
on the work floor. DiStefano testified that new hires should not
be counted in a layoff situation because they are not working and
when on the work floor, the new hires are merely shadowing or
observing the activities of the regular work force. DiStefano
noted that a grievance filed by the Union in 2014 (R. Exh. 2)
complained of new hires not being laid-off was withdrawn by the
MONDELEZ GLOBAL, LLC 13
Union. However, that grievance does not shed any light as to
whether the Union had acquiesced to the employer in not laying
off new hires during the second week since the grievance only
complained about the first week of training.
The parties agreed that the first week (or classroom training)
did not count towards the number of employees to be laid off.
The dispute is over the second week of training when the new
hires are on the work floor since there was never a past practice
as to whether new hires are retained during a layoff while on
their second week of orientation. The counsel for the General
Counsel argues that new hires on the work floor are working and
therefore, subject to the layoff policy. The counsel for the Re-
spondent argues that the new hires are still in training while on
the work floor and its position is a reasonable (plausible and
sound) interpretation of the expired contract. Since neither party
could definitely point to a past practice in the manner new hires
have been laid-off in past situations, it would be reasonable to
look at the expired contract for guidance.
I agree with the counsel for the Respondent. Under the ex-
pired contract, the workers on the M&R department seniority list
will be laid-off in reverse order of seniority. I find that the Re-
spondent has presented a “plausible interpretation” of the con-
tract as to which employees should be laid-off. The parties
agreed that the premise in retaining new hires while in class-
room training during a layoff is because they are not workers
engaged in a productive manner. In other words, the new hires
were only learning new skills while in a classroom setting. Sim-
ilarly, when placed on the work floor, these same new hires were
still learning new skills, but in a production line setting.
DiStefano credibly testified that the new hires were on the
work floor to observe the workers on the production line. There
has been no evidence proffered by the General Counsel that the
new hires were given a shift schedule or had actually replaced
the regular work force on the production line. As such, I find
that the Respondent’s rationale in identifying the employees to
be laid-off as a reasonable and plausible interpretation of the
contract. As in Monmouth Care Center, 354 NLRB 11, slip op.
at 58 (2009).
Such a finding is insufficient to find a violation of the Act, since
as long as Respondents have a “sound arguable basis,” for its
interpretations of the contract, no violation will be found. Ver-
izon, 350 NLRB 542, 568 (2007); Bath Iron Works, 345 NLRB
499, 502 (2005), enfd. 475 F.3d 14, 22 (1st Cir. 2007); Intrepid
Museum, 335 NLRB 1117 (2001); Westinghouse Electric, 313
NLRB 452, 453 (1993); Atwood & Morill, 289 NLRB 794, 795
(1988); NCR Corp., 271 NLRB 1212, 1213 (1984).
Here, I find that the Respondent had a “sound arguable basis”
for its interpretation of the contract, and that the General Counsel
has not established that the Respondent violated the Act. Ac-
cordingly, I recommend that this allegation in the complaint be
dismissed.
3. The unilateral change in the joint orientation training
of new hires
The counsel for the General Counsel alleges that the Respond-
ent has periodically conducted 1-week orientations of new hires
and, as a practice, would permit union representatives to meet
separately with the new hires for approximately 1 hour during
orientation week. The counsel for the General Counsel argues
that this practice was changed when Clark-Muhammad refused
to allow Milewski and other union representatives to meet pri-
vately with the new hires and the employer insisted on being pre-
sent during the Union’s portion of the orientation. It is argued
that the change occurred without notice and bargaining with the
Union.
The Respondent maintains that there have been several differ-
ent practices in the past with the Union meeting separately with
the new hires and on other occasions, in the presence of an em-
ployer representative. The Respondent argues that the past prac-
tice of having only the Union meet with the new hires was not a
joint meeting and therefore, inconsistent with the contract.
Article 40 (GC Exh. 3 at p. 42) of the expired contract states
that
The Company and Union agreed to utilize a job orientation
presentation for newly hired employees that will encompass,
but not be limited to, the parties’ commitment to quality,
productivity, attendance, and the BCT-Nabisco Brands part-
nership. The details surrounding said presentation will be dis-
cussed and resolved on a local basis and will be implemented
no later than January 1, 1991.
Milewski testified that orientation for new hires would usually
start on a Monday for 5 days and at mid-week, the Union would
have the opportunity to come in and meet in private with the new
hires for 1 hour to collect employee information, union applica-
tions, have dues check-offs completed, and provide political ac-
tion information. Milewski stated that the Union does not sit in
during the management orientation of the new hires.
Milewski stated that this was the practice for 12 years until
2016 when Clark-Muhammad told him in March that the con-
tract had expired and therefore the Union would not be permitted
to speak separately with the new hires. Milewski also com-
plained that management sat in during the Union’s orientation
session at the May 12 orientation. Milewski said he was in-
formed by the Assistant HR Manager, Tasha McCutcheon and
another HR representative, that they will attend the Union’s
meeting with the new hires. Milewski protested and was told by
McCutcheon that is how the meeting will be conducted in the
future. Milewski was informed that they were staying and he
was told that this was the way it should have been done in the
past and would be done in the future. Milewski complained that
the Respondent never negotiated the change with the Union.
Milewski stated that he did not participate in any orientation
meetings after May 2016. According to Milewski, his under-
standing was that joint meetings in the expired contract meant
that the employer and union would meet with the new hires but
not necessarily at the same time (Tr. 215−218).
DiStefano testified that there were varying degrees of success
in holding joint management and labor orientation meetings and
admitted that prior to the expiration of the contract, joint and sep-
arate meetings had occurred. She was aware in 2013 or 2014
that union representatives were having closed-door meetings
with new hires without management presence. After the expira-
tion of the contract, DiStefano directed Clark-Muhammad to re-
turn to the practice of holding joint meetings during orientation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
with the new hires. DiStefano said that after the contract expired,
the Respondent will follow the letter of the contract with joint
orientation of new hires and demand joint meetings throughout
the orientation week. DiStefano stated that any past practice in-
consistent with the contract did not survive the expiration of the
contract. DiStefano insisted that Milewski did attend some joint
meetings but under protest.
Discussion and Analysis
I find that there was indeed a unilateral change when the Re-
spondent insisted on joint meetings throughout the entire 1-week
training for the new hires. First, the expired contract did not state
that there would be joint meetings throughout the 1-week train-
ing. The contract specifically stated that “The Company and Un-
ion agreed to utilize a job orientation presentation for newly
hired employees…” This did not mean that the employer and
the Union would be present at all times during this 1-week pe-
riod. It was not disputed by the Respondent when Milewski tes-
tified that the Union was not present when the employer had its
own private meeting(s) with the new hires.
An employer’s regular and longstanding practices that are nei-
ther random nor intermittent become terms and conditions of em-
ployment, even where such practices are not expressly set forth
within a collective-bargaining agreement. Sunoco, Inc., 349
NLRB 240, 244 (2007); Garden Grove Hospital, 357 NLRB
653, 657 (2011). As such, past practices survive the expiration
of the contract even though they were not expressly set forth
within the expired contract. The party asserting the existence of
a past practice bears the burden of proof on the issue; specifi-
cally, the evidence must show that the practice occurred with
such regularity and frequency that employees could reasonably
expect the practice to reoccur on a consistent basis. Palm Beach
Metro Transportation, LLC, 357 NLRB 180, 183–184 (2011),
enfd. 459 Fed. Appx. 874 (11th Cir. 2012).
The contract never called for joint meetings. The section in
Article 40-Miscellanous Clauses of the expired contract is cap-
tioned “New Employee Orientation,” but the contract language
only calls for the company and Union to hold a job orientation.
Nothing in the language in this section suggests that the meetings
must be held jointly in the presence of the employer and the Un-
ion. This is evident when Milewski credibly testified that man-
agement would conduct its own private meetings with the new
hires. The contract language called for “The details surrounding
said presentation will be discussed and resolved on a local ba-
sis…” The Respondent proffered no evidence of any local mem-
orandum of understanding that was reached with the Union on
conducting the meetings. I credit Milewski’s testimony that the
consistent practice for the past 12 years was to have private ac-
cess to the new hires by both the Respondent and the Union.
Consequently, the practice for the past 12 years of holding sepa-
rate employer and union meetings with the new hires was the
understanding between the parties.
This past practice changed in March when DiStefano in-
structed Clark-Muhammad to follow the letter of the expired
contract (which did not specifically allow for joint meetings) and
7 The counsel for the Respondent also argued that the “change” was
not material, substantial, and significant. I disagree and credit
Milewski’s testimony that having a management representative attend
to insist on joint meetings. This change was also evident when
McCutcheon told Milewski that she and another HR representa-
tive would insist on attending the Union’s meeting with the new
employees and told Milewski that this was the way it was going
to be done in the future.
Accordingly, I find and conclude that the Respondent violated
Section 8(a)(5) and (1) of the Act when it insisted on eliminating
the past practice of the Union holding exclusive and private
meetings with the new hires and insisted in having management
representatives attend the union held-meetings with the new
hires.7
4. The unilateral change to the work schedules of the B and R
processors in June 2016 and in December 2016
The counsel for the General Counsel argues that the Respond-
ent changed the work schedules of the B & R (Broken and Re-
fused products) shifts in June 2016 and in December 2016, when
it reverted to the schedules prior to the change without bargain-
ing with the Union over the changes. The Respondent admitted
that changes were made and that it did not provide notice or bar-
gain over the changes with the Union.
Joe Bevacqua (Bevacqua), business unit leader since April
2016 was responsible at the time, for the daily operations of the
supervisors and employee schedules at the distribution center
and warehouse. Bevacqua noticed that the warehouse start times
were staggered and varied with different job classifications. He
stated that before the change, warehouse shifts were 6 a.m., 2
p.m., and 10 p.m. He stated that the rest of the production lines
at the plant facility started at 7:30 a.m., 3:30 p.m., and 11:30 p.m.
Bevacqua decided that all shifts should be consistent with a start
time at 7 a.m., 3 p.m., and 11 p.m. He stated that he reviewed
the applicable section in the CBA with other supervisors and dis-
cussed his planned changes with human resources.
Article 6, Section 2 of the expired contract (GC Exh. 3 at p.
11) states
The Company will endeavor to keep the starting time of all em-
ployees as uniform as possible, consistent with the operation of
the bakery and other locations covered by the Agreement.
Bevacqua admitted that there was no prior notice to the Union
and no negotiations with the Union over the shift change. Bevac-
qua believed that this section of the contract was still in effect
even though the contract had expired but maintained that his de-
cision for the shift change was consistent and in compliance with
the contract (Tr. 1154). Bevacqua testified that the shift schedule
was changed in June/July and reverted to the previous schedule
in about December.
Discussion and Analysis
The counsel for the General Counsel argues that the unilateral
change in work hours of the B&R workers is a mandatory subject
of bargaining. The Respondent maintains that its efforts to keep
the shift times as uniform as possible is an equally plausible in-
terpretation of article 28 (noted above) and that reverting the
shift schedule to the original hours in December was also a
meetings held by the Union with the new hires had a chilling effect on
soliciting contributions to the Union’s political action activities and other
union-related discussions (Tr. 69).
MONDELEZ GLOBAL, LLC 15
plausible interpretation of the article (R. Br. at 46, 47).
I find that the Respondent violated Section 8(a)(5) and (1) of
the Act when it changed the shift of the B&R workers without
notice and an opportunity to bargain with the Union. Clearly,
the Board has consistently held that hours, including work sched-
ules, are mandatory bargaining subjects. Weston & Brooker Co.,
154 NLRB 747 (1965). In limited circumstances, the employer
may institute changes in work hours without bargaining, such
when it caused only minimal inconvenience to the employees.
However, the Board has held that the unilateral extension of em-
ployees’ breaks by 15 minutes was a substantial change in their
working conditions in violation of Section 8(a)(5). Setrafilm, At-
las Microfilming Div., 267 NLRB 682 (1983).
The Respondent was obligated to maintain the status quo of
the terms and conditions of employment after the expiration of
the contract pending negotiation of a new contract. Where the
parties are negotiating a collective-bargaining agreement, the
employer has an obligation to refrain from implementing unilat-
eral changes unless and until agreement or an overall impasse is
reached. Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
For the Respondent to assert that a reasonable interpretation of
Article 6 would allow for changes in the workers’ schedules is,
by itself, a violation of the Act and therefore not a plausible in-
terpretation of article 6.
Moreover, an employer is obligated to notify the employees’
exclusive collective-bargaining representative and afford the
representative an opportunity to bargain about the changes.
Here, the Respondent did not notify and did not afford the Union
an opportunity to bargain about the schedule changes.
Accordingly, I find that the Respondent violated Section
8(a)(5) and (1) of the Act when it unilaterally changed the B&R
work schedules in June/July and December 2016 without notify-
ing the Union of the change and affording it the opportunity to
bargain over the changes.
5. The delay, failure and refusal in providing the Union’s
request for information
The complaint alleges that the Respondent unreasonably de-
layed, failed and refused to provide the Union with the infor-
mation requested of (1) The names of any worker disciplined for
violations of the Respondent’s clock-in-clock-out policy from
March 1, 2006, through March 1, 2016; and (2) The names of
Respondent’s new hires from June 2015 to the present (Tr. 10;
GC Exh. 1; complaint at par. 31 (a) and (b)).
On March 28, the Union filed a grievance regarding the
change in the Respondent’s clock-in-clock-out policy that had
resulted in the discipline of several workers (GC Exh. 12). On
May 13, the Union made an information request for all discipline
associated with clock-in-clock-out violations from March 1,
2006, through March 1, 2016. The information request to Clark-
Muhammad asked that the information be provided no later than
May 27 and/or that the Respondent provide an explanation as to
what information was available, not in existence or denied (GC
Exh. 13).
Milewski testified that the information request going back 10
years on any discipline regarding workers violating the clock-in-
clock-out policy was needed in a grievance filed on this issue
because he believed that the Respondent had recently amped-up
discipline on workers not properly clocking in and out. Milewski
believed that there were recent problems with the turnstile and/or
the swipe cards that had resulted in the workers being disciplined
(Tr. 221).
Milewski stated that some information on the disciplinary rec-
ords was provided by the employer on September 9, 2016 (CP
Exh. 1). There was also some additional follow-up information
that the Respondent provided to the Union on January 5, 2017,
regarding information on grievances filed on behalf of several
workers (R. Exh. 3).
Milewski also testified that the Union made a request for in-
formation on new hires to the Respondent. On July 7, Milewski
emailed Clark-Muhammad and requested contact information on
all new hires from June 2015 to the present for the purpose of
conducting his new employee orientation. Milewski explained
that the Union had not been receiving a new hire list from the
Respondent after the workers’ first 30 days on the job as was the
standard policy (GC Exh. 10). Milewski also wanted to ensure
that union dues were properly being deducted for the new hires
(Tr. 225−228).
In response, Clark-Muhammad forwarded Milewski’s email
on July 12 to Melissa Lochansky to prepare the information (GC
Exh. 9). Milewski testified that he never received the new hire
list. In contrast, the Respondent contends that Milewski received
a list of all hires from January 1, 2014, to March 1, 2016, on May
24 and that a list of all employees hired in June and July 2016
was provided on September 2, 2016, to Milewski (Tr. 232−234;
R. Exh. 4). The Respondent further argues that it provided the
same information on the new hires to the Union a second time in
January 2017 (R. Exh. 3; R. Br. at 48).
Applicable Legal Standards
The counsel for the General Counsel alleges that the infor-
mation request for disciplinary records and for the new hire list
was unreasonably delayed or not provided. The Respondent ar-
gues that the information request for the disciplinary records was
an attempt at discovery in support of the Union’s pending unfair
labor practice charge on this same issue. The Respondent further
argues that the list of new hires and disciplinary records were
provided to Milewski.
It is well settled that an employer is obligated to furnish infor-
mation requested by its employees’ collective-bargaining agent
that is relevant and necessary to the Union’s bargaining respon-
sibilities and contract negotiations. Detroit Edison Co. v. NLRB,
440 U.S. 301, 303 (1979). The Respondent has a statutory obli-
gation to provide the Union with requested information that is
relevant and necessary to the Union’s performance of its duties
as collective-bargaining representative—including deciding
whether to process grievances. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967); Centura Health St. Mary-Corwin
Medical Ctr., 360 NLRB 689, 689 (2014). As to information
regarding the unit employees, there is a presumption that the in-
formation is relevant to the Union’s bargaining obligation. The
burden is on the employer, once relevance is established, to pro-
vide an adequate explanation or valid defense to its failure to
provide the information in a timely manner. Woodland Clinic,
supra; Coca-Cola Bottling Co., 311 NLRB 424, 425 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Discussion and Analysis
First, upon my review, I find that the information request for
the disciplinary records of workers was reasonable, appropriate,
and necessary for the Union in its capacity as the exclusive bar-
gaining representative of unit employees. As credibly testified
by Milewski, the disciplinary records of workers affected by this
change in policy was information necessary to determine
whether there was an increase in disciplining workers subse-
quent to the policy change as compared to employees disciplined
prior to the policy change. I also credit Milewski’s testimony
that the Union appropriately requested information on a list of
new hires to ascertain whether new hires were receiving their
union orientation.
In my opinion, the information sought on the grievances is rel-
evant. Had the information been provided to the Union at the
start of the grievance process, the Union would have been in a
better position to perform its duties as the collective-bargaining
representative, including negotiating better settlement agree-
ments for its employees. Without the information requested, the
Union was at a disadvantage in not knowing if a less severe dis-
cipline would have been appropriate under similar situations
prior to the clock-in-clock-out policy change.
Second, I find that the Respondent unreasonably delayed in
providing the information request on the disciplinary records of
workers under the previous clock-in-clock-out policy. The in-
formation request was made on May 13 to Clark-Muhammad
(GC Exh. 13). The Respondent provided a partial response to
the information request on the disciplinary records of workers on
September 9 (CP Exh. 1) and provided more information on this
request on January 5, 2017 (R. Exh. 3). Clark-Muhammad ex-
plained in her September 9 response that “…due to the burden-
some requirement of having to manually search files for respon-
sive records, it has taken the Company an unusually long amount
of time to investigate these requests in order to respond” (CP
Exh. 1).
The failure to timely provide the information requested is a
separate 8(a)(5) violation of the Act. An employer must timely
respond to a union’s request seeking relevant information even
when the employer believes it has grounds for not providing the
information. Regency Service Carts, 345 NLRB 671, 673 (2005)
(“When a union makes a request for relevant information, the
employer has a duty to supply the information in a timely fashion
or to adequately explain why the information will not be fur-
nished”); Kroger Co., 226 NLRB 512, 513–514 (1976). Absent
evidence justifying an employer’s delay in furnishing such infor-
mation, such a delay is violative of the Act. In my opinion, I
believe the Respondent is obligated to inform the Union as to the
status in providing the information.
Here, the request on the disciplinary records was made on
May 13 and the Respondent did not substantially comply with
the request until January 5.8 Clark-Muhammad indicated to
Milewski on September 9 that the record compilation was time-
consuming, but she never requested additional time to produce
the documents or to inform the Union as to how much time she
8 I would conclude that the January submission of documents by the
Respondent fully complied with the information request for the discipli-
nary records. Milewski testified that the Union did not assert that the
needed. Clark-Muhammad also failed to inform the Union
whether her September 9 response was complete or was missing
information.
In such circumstances, I conclude that Respondent did not
make a good-faith effort to respond as promptly as circumstances
allow and has violated Section 8(a)(5) and (1) of the Act by fail-
ing to respond in a timely manner. Woodland Clinic, 331 NLRB
735 (2000) (delay of 7 weeks unreasonable, absent explanation);
Bundy Corp., 292 NLRB 671, 672 (1989) (delay of 2-1/2 months
unreasonable, and explanation offered for delay inadequate);
Quality Engineered Products, 267 NLRB 593, 598 (1983) (em-
ployer replied within 2 weeks, supplying some information, but
did not supply rest of information required until 6 weeks later.
No explanation given for “foot dragging” on request); Pennco,
Inc., 212 NLRB 677, 678 (1974) (union made two requests on
May 13 and 23. Information not supplied until June 29, a few
days after the union filed amended charge with Region. Board
concludes that delay was unreasonable and violative of 8(a)(5)
of the Act); Local 12 Engineers, 237 NLRB 1556, 1558–1559
(1978) (information supplied 6 weeks after request, and only af-
ter charge filed with the Board); International Credit Service,
240 NLRB 715, 718 (1979) (unexplained delay of 6 weeks un-
reasonable). As such, I find that the delay was unjustified and
that the Respondent never adequately explained if there was
missing information or when more information would be forth-
coming.
Third, I find that the information request for a list of new hires
from June 2015 to the present was also necessary and reasonable
for the Union to perform its duties as the exclusive representative
of unit employees. The information request on the new hires is
obviously relevant and necessary for contract negotiations and,
therefore, a mandatory subject of bargaining. Hen House Market
No. 3, 175 NLRB 596 (1969). It is a violation of 8(a)(5) and (1)
of the Act when an employer fails or refuses to provide infor-
mation requested for contract negotiations. NLRB v. Truitt Mfg.,
Co., 351 U.S. 149 (1956).
The record shows that the Respondent never provided a com-
plete list of new hires as requested by the Union on July 7.
Milewski requested the list of new hires from June 2015 to the
present. On July 12, Clark-Muhammad forwarded Milewski’s
information request to Melissa Lochansky and requested that she
prepare the list for Milewski. On September 8, Milewski re-
peated his request to Clark-Muhammad by attaching his initial
request for the information from July 7 (GC Exh. 9). There is
nothing in the record to show that Milewski’s September 8 reaf-
firmation of his request was acknowledged or followed-up by
Clark-Muhammad.
The counsel for the General Counsel argued that the infor-
mation was never received by the Union and there is no evidence
to the contrary (GC Br. at 17). The counsel for the Respondent
argued that Milewski received a list of all hires from January 1,
2014, to March 1, 2016, on April 12, 2016 (R. Exh. 4) and all
new hires from June and July 2016 were produced on September
2. In addition, Respondent contends that it provided the same
Respondent’s production of documents was incomplete after January
(Tr. 224).
MONDELEZ GLOBAL, LLC 17
information to the Union in January 2017 (R. Exh. 3).
Contrary to the Respondent’s arguments, I agree with the Gen-
eral Counsel to the extent that the Respondent never provided a
complete record of the new hires from June 2015 to the present.
I find that the record shows that Clark-Muhammad sent an email
to Milewski and Vlashi on March 24 of a list of new hires as of
January 2014 (R. Exh. 4). This was, at most, a partial list of new
hires through the beginning of 2014. In subsequent emails,
Clark-Muhammad continued to add other items to her list that
were not included in her March 24 response, such as her email
of April 12 to include the addresses of workers that the Union
had requested (R. Exh. 4 at 5); a list of addresses and phone num-
bers of new hires in her April 13 email (R. Exh. 4 at 14); and an
updated address list of new hires for June (R. Exh. 4 at 28).
However, nowhere in the record is there a document showing a
full list of new hires from June 2015 to the present. The Re-
spondent argues that the full list of new hires was provided a
second time to the Union in January 2017 (R. Br. at 48). How-
ever, the HR manager did not attach that list in her January re-
sponse, she merely stated that “…the request for info. on new
employees sent to you on 7-7-16” (R. Exh. 3 at 2). As noted
above, no such list existed as of July 7 because Clark-Muham-
mad was still attempting to provide the list of new hires to
Milewski as of July 12 and Milewski had again made his request
for the same information on September 8 with nothing in the rec-
ord showing that the Respondent had subsequently acknowl-
edged or responded to his repeated requests.
Further, I find nothing to support the Respondent’s argument
that the information request for disciplinary records and for the
new hire list was an attempt by the Union at discovery. The in-
formation request for the disciplinary records made on May 13
was made pursuant to a grievance filed on March 28 that alleged
the Respondent made a unilateral change in the clock-in-clock-
out policy without notifying and bargaining with the Union (GC
Exh. 12). The charge alleged that the Respondent failed and re-
fused to provide the Union with an information request of work-
ers disciplined by the new clock-in-clock-out policy. This
charge was filed with the NLRB on June 23, 2016 (GC Exh. 1g).
Consequently, the information request pre-dated the NLRB
charge. There could not have been “discovery” on the NLRB
charge since the charge was not filed until more than a month
later.
I also find merit in the argument by the counsel for the General
Counsel that the charge filed on June 23 regarding the alleged
unilateral change in the clock-in-clock-out policy was subse-
quently withdrawn by the Union and approved by the Regional
Director, and as such, it is nonsensical for the Respondent to ar-
gue that the information request was for discovery of a charge
that no longer existed (GC Exh. 1x). I would also note that
Clark-Muhammad had raised certain objections to Milewski and
the Union on September 9 on this information request, but she
never asserted that the information request was an attempt at dis-
covery by the Union for an NLRB charge (CP Exh. 1).
The Respondent also contends that the information request for
the new hire list was an attempt at discovery for an NLRB charge
filed on June 14 by the Union (GC Exh. 1c; R. Br. at 48). I find
no merit for this argument.
The information request for the new hire list was made by
Milewski on July 7 (GC Exh. 9). The NLRB charge filed by the
Union on June 14 (as cited by the Respondent in GC Exh. 1c)
alleges, among other items, the unilateral refusal to deduct union
dues from new employees’ pay. Milewski’s rationale for the in-
formation request on July 7 for the new hire list was
In order to have a new employee orientation with the new hires
I am requesting that the company provide me contract infor-
mation on all new employees hired from June 2015 to present
with their names, addresses, and phone numbers, etc.
While Milewski did indicate in his testimony that the new em-
ployee hire list could be used to determine whether union dues
were being deducted, the specific reason cited in his information
request on July 7 was to ensure that new hires received orienta-
tion from the Union. The Union may have been motivated by
several factors in making this request, but clearly, the Union’s
primary focus was to ensure that new hires receive their union
orientation, especially in light of the fact that the Respondent had
just denied the Union in May, the opportunity to conduct sepa-
rate meetings with the new hires. This request for information
on new hires was for the purpose of ensuring they receive union
orientation and not expressly for “discovery” on the Respond-
ent’s unilateral refusal to deduct union dues.
Accordingly, I find that the Respondent violated Section
8(a)(5) and (1) when it unreasonably delayed or failed and re-
fused to provide the information requested by the Union.
6. In and after May 2016, the Respondent failed to continue in
effect all the terms and conditions of the collective-bargaining
agreement by ceasing to honor employee authorizations for
dues deductions
Milewski testified that at a May 2016 union orientation meet-
ing, the Union collected dues authorization cards and the cards
were subsequently provided to the Respondent (Tr. 70−76; GC
Exh. 7). It is not disputed that the dues of the new hires were
collected by the Respondent (GC Exh. 8). The counsel for the
General Counsel alleges that the Respondent did not remit the
collected dues to the Union until November and still had not re-
ceived all the collected dues at the time of this hearing (Tr. 74,
237).
The Respondent argues that the dues were collected for over
2 years and that it did not unilaterally fail to continue deducting
union dues for new employees after the expiration of the con-
tract. Milewski testified that the Union received the collected
dues from the May 2016 orientation meeting except for a couple
of instances (Tr. 237, 242). Milewski also admitted that there
have been clerical errors in the past regarding outstanding dues
not yet received by the Union that may account for other poten-
tially missing dues from employees (Tr. 238).
It is clear under article 3 at p. 6 of the expired contract (GC
Exh. 3), the Respondent has a contractual obligation to remit
dues to the Union. Under Lincoln Lutheran of Racine, 362
NLRB 1655 (2015), the Board has held that employers could not
unilaterally end dues check-off at the expiration of a collective-
bargaining agreement. The Respondent argues that the Admin-
istrative Law Judge should reconsider this holding when the
Board overturned 50 years of precedential history under Bethle-
hem Steel Co., 136 NLRB 1500 (1962) (R. Br. at 50−52).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Upon my review, I find it unnecessary to address whether an
employer has a legal obligation to continue remitting union dues
after the expiration of the contract. Here, the complaint alleges
that the Respondent ceased to honor new employee authoriza-
tions for dues deductions. I find that the Respondent continued
to honor new employee authorizations for dues deductions. To
be clear, the complaint did not allege that the Respondent refused
to remit or timely remit the collected union dues.
The record shows that the Respondent continued to deduct
dues of new employees from the May 2016 union orientation.
While there were some delays in the remittance of the dues to the
Union, Milewski clearly testified that he had received all the
dues from that orientation by November, except for “a couple”
and he surmised that mistakes could be possible since there had
been clerical errors in the past when dealing with dues deduc-
tions of over 500 workers (Tr. 240). As such, the Respondent
never stopped collecting dues deductions from the May union
orientation and had remitted most if not all of the dues to the
Union by November.
Accordingly, I find that the Respondent did not violate Sec-
tion 8(d) of the Act when it allegedly ceased to honor employee
authorizations for dues deduction. I recommend that this allega-
tion in the complaint be dismissed.
THE ALLEGED DISCHARGES AND DISCIPLINE IN VIOLATION OF
SECTION 8(A)(3) OF THE ACT
The counsel for the General Counsel alleges that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by suspending and
discharging Nafis Vlashi (Vlashi), Bruce Scherer (Scherer), and
Claudio Gutierrez (Gutierrez) because they engaged in union or
protected concerted activity (GC Br. at 18). The counsel for the
Respondent argues the three employees were discharged for fal-
sifying company records, leaving the work area without author-
ization, taking excessive breaks and/or using the time badge of
another employee or permitting another employee to use their
time badge (R. Br. at 2, 31).
1. The analysis of overtime usages by Rogelio Melgar
Rogelio Melgar (Melgar) testified he held the position of sen-
ior supply planning manager at the Respondent’s East Hanover,
New Jersey facility starting in March 2018. Prior to that time,
Melgar was the continuous improvement manager from January
2017 to March 2018 at the Fair Lawn plant. Melgar was previ-
ously employed with the Respondent in Australia as a continu-
ous improvement engineer from 2015 until his reassignment to
the Fair Lawn Plant in January 2017.
Melgar said his responsibilities were to maximize production
output on the line and to ensure a smooth processing of opera-
tions in the systems. When Melgar arrived at the Fair Lawn
plant, he was surprised to see labor costs, in particular the over-
time costs, to be disparately different to what he had observed in
other factories within the production network in North America.
Melgar testified that overtime at the Fair Lawn plant was around
36 or 37 percent whereas other factories had overtime in the sin-
gle digits (Tr. 806). Melgar testified he did a “Timestamps”
study in April/May 2016 with data starting from September 2015
to understand the productivity of the plant.
9 Naumoski retired before any discipline was taken against him.
Melgar said he was concerned that excessive overtime was af-
fecting productivity and safety. Melgar deemed that working
over 80−100 hours per week adversely affects cost, safety of the
workers, production output, and job performance. Melgar
brought his concerns about overtime hours to Plant Manager Ku-
ratli in fall 2015. Kuratli instructed Melgar to give overtime a
closer inspection. Melgar began by reviewing how manual
punch-outs correlate with overtime hours. Melgar defined a
punch-out as when a worker leaves the facility without punching
out and the payroll record is adjusted manually by the supervisor.
Melgar discovered that high manual punch-outs correlated di-
rectly with high overtime hours accrued by the workers. Melgar
reached this conclusion by analyzing the payroll records with the
turnstile records of facility entries of the workers. Melgar also
reviewed the available video records from the security system of
workers entering and exiting the plant.
Melgar thought that overtime hours could be reduced if only
one supervisor was in charge of the manual punch outs. In No-
vember/December 2015, Supervisor Nick Giulianelli was desig-
nated as the only supervisor who would be doing the manual
punch-outs. However, Melgar discovered that there was no re-
duction in the number of overtime hours and decided to delve
deeper into the issue in May 2016.
Melgar prepared a “Timestamps Summary” data report (GC
Exh. 19), wherein he selected 16 random weeks from October
2015 and May 2016. His report looked at three factors. The first
factor was the number of times a worker goes in and out of the
facility per each day worked. He said this would give him a total
measure of elapsed time (work time) in the facility. He looked
at payroll patterns of 59 workers as a second factor. Melgar said
he selected 59 employees with in excess of 80 hours of overtime
per week in the 16 random weeks. Finally, he reviewed for any
discrepancies between the entries and exits records on the turn-
stile and the payroll records of the employees as the third factor.
He would record that number of entries and exits of each em-
ployee or would notice if there were multiple exits but no entries
by the same worker (Tr. 813).
Melgar gave an example of how he used the three factors with
a worker named Zoran Naumoski (Naumoski) with high hours
worked per week. Naumoski had entered and exited the plant
almost 6 times per day during his work shift during a 51-day pe-
riod. Melgar rated Naumoski as a worker with the highest num-
ber of turnstile entries for the number of workdays. Melgar tes-
tified that Naumoski was out of the facility for over 90 minutes
on October 13, 2015 and out almost 60 minutes on October 14
while on a work shift (Tr. 853).9 Melgar concluded that Nau-
moski was on extended and unauthorized breaks when he should
have been working.
A snapshot of the “Ratio of Turnstile Entries and Days
Worked” in the Timestamps Summary report (GC Exh. 19 at 3)
shows the first 21 out of 59 workers with the highest turnstile
entries (either arriving or leaving the plant) in the given 16 weeks
as complied by Melgar:

MONDELEZ GLOBAL, LLC 19
Naumoski had the highest ratio, followed by Jory Stith, Semin
Hadzi, Tommy Jacobs, John Moody, and then Nafis Vlashi.10
Vlashi had an average of 3.76 turnstile entries during the random
16-week period. There were 6 more workers with the highest
ratio before reaching Bruce Scherer. Scherer had an average
2.02 for the same period. Claudio Gutierrez is not listed as one
of the 59 workers with a high turnstile ratio.
Melgar tabulated the 59 workers with the highest 80+ over
time hours during the random 16-week periods (GC Exh. 19 at
4). The following is a list of the 13 workers with the highest 80+
over time hours:
Nafis Vlashi was the third highest, but neither Scherer nor
Gutierrez were on this list of workers with 80+ hours of work in
a given week. Melgar insisted that the stated purpose of his data
review was to understand the true nature of overtime use and
which positions were driving most of the overtime activity. Mel-
gar admittedly never completed his data review and had only re-
viewed the discrepancies of four workers, Nafis Vlashi, Bruce
Scherer, Nove Koroskoski, and Claudio Gutierrez, of the 59 em-
ployees (Tr. 899; CP Exh. 20 at p. 12).
2. The discharge of Claudio Gutierrez
Claudio Gutierrez (Gutierrez) was suspended and discharged
after Melgar reviewed the overtime hours worked by another em-
ployee named Nove Koroskoski (Koroskoski). Melgar ex-
plained that Koroskoski was reviewed because he averaged 1.53
turnstile entries on days worked and was one of the workers with
80+ overtime hours in a 4-week period out of the 16-week period
(noted in the above “Overtime Pattern chart) (Tr. 860). In his
review, Melgar noticed on May 6 that Koroskoski had a turnstile
entry record but no record of a departure. Melgar said that
Koroskoski had clocked out at 11:30 p.m., but had no turnstile
10 Tommy Jacobs’ position as a forklift operator required him to have
departure for that day. The only turnstile entry for a departure
around 11:30 p.m. was recorded by Gutierrez. There was no
turnstile exit recorded for Koroskoski. Melgar stated that the
video security camera at the turnstile showed Koroskoski leaving
the plant. Melgar could not understand how he left the facility
when there was no turnstile swipe record of Koroskoski leaving
the plant. Melgar concluded that Koroskoski clocked out using
his own card, clocked Gutierrez out for the day with Gutierrez’
badge, and then swiped the turnstile using Gutierrez’ badge at
around 11:30 p.m. to leave the plant. Both Koroskoski and
Gutierrez were on overtime hours on May 6.
The screen shot of the security camera video shows Koros-
koski departed at 11:30 p.m. but the turnstile record reflected
only Gutierrez’ card (GC Exh. 13 at 9).
Melgar admitted that Gutierrez ended up as collateral damage
because Gutierrez did not have 80 hours of overtime and was
only discovered when Melgar was looking for manual punch
outs for Koroskoski who was one of the 80+ overtime hour work-
ers. Melgar concluded that
My conclusion is that Mr. Nove (Koroskoski), he used
multiple entries and exits during his work shift.
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Claudio’s (Gutierrez) card to punch Claudio out of the payroll
system. And accidently, the turnstile system picked up this mis-
take at Nove’s exit. As well as, there is no record of Claudio
leaving. So, which it means that Claudio left somewhere be-
fore 11:30. And as -- and somehow, like, gave the card to Nove
(to use) (Tr. 825).
Gutierrez started working for the Respondent in 1990 as a
floor help and was discharged on July 1. Gutierrez worked the
second shift 3:30 p.m.-11:30 p.m. and was supervised by Jerry
Luchansky. Gutierrez also held the position of shop steward for
the past 20 years. Gutierrez was involved in arranging the union
rallies, although he did not participate in them. Gutierrez was
also present when Shift Supervisor, Dan Calibrese, told him,
Vlashi and Scherer to take down the flag in front of the locker
room and with the union logo T-shirt incident in April/May when
the plant manager told them to return the shirts.
Gutierrez was also involved in another incident involving util-
ity workers in March 2016. He told management that the work-
ers could not cross crafts because they were not qualified to do
the work of the floor help. He was told by Shift Manager Dan
Calibrese to leave them there because the Union did not have a
contract. Gutierrez heard similar remarks made by the HR Su-
pervisor, Dawn Sprague, in March/April 2016 telling workers
that they did not have a contract and if they don’t do what is told,
they will be fired. Gutierrez replied that the Union still has a
contract to work under the old contract. As noted above,
Gutierrez was involved as the union representative when a re-
turning worker from short-term disability in April 2016 was not
permitted to work by Clark-Muhammad.
On a routine basis, Gutierrez is on official union business to
prepare the schedules for the overtime workers on the weekends
and any overtime work needed on a daily basis. Gutierrez stated
that a supervisor would inform him as to the need for overtime
workers. In addition to his work on union business with the
scheduling of overtime, Gutierrez also ensures that the workers
receive their fair share of overtime and that workers are not in-
structed to cross crafts to perform work for the Respondent.
Gutierrez was involved in the January 2016 incident when the
Respondent attempted to hire a subcontractor to perform work
on the weekend. Gutierrez complained that there may not have
been enough workers to perform overtime work on Saturday, but
they could have worked on Sunday. According to Gutierrez, the
Respondent brought in a contractor to work on Saturday.
Gutierrez testified that he informed the management and safety
coordinator, John Lissi and, in turn, Lissi told the contractor to
stop working because they were not trained to clean the equip-
ment.
Gutierrez was summoned by Clark-Muhammad on June 15 to
her office. Present at the meeting were Clark-Muhammad, a cor-
porate security officer, later identified as Mike Keenan, the Re-
spondent’s security director for North America, and a shop stew-
ard. Gutierrez was told by Clark-Muhammad that he falsified
timecards by having another worker punch his timecard. He was
also charged with falsifying medical records. Gutierrez admitted
to her that someone used his timecard to get out of the plant
11 The discharge of Leon Koroskoski for violating the Act was not an
allegation in the complaint. Koroskoski did not testify as to his
because of a problem with the turnstile on May 6.
Gutierrez recalled being told by Clark-Muhammad that he
clocked in at 8:41a.m. and never clocked out. Gutierrez replied
that he was on overtime and a supervisor would manually clock
a worker in and out when on overtime. Gutierrez testified that
since he worked the 3:30 p.m. shift as his routine shift, he was
on overtime at 8:41 a.m. and a supervisor would have manually
clocked him out of overtime and a supervisor would have
clocked him in for his regular shift (Tr. 723).
Gutierrez recalled being told by Clark-Muhammad that some-
one used his timecard to clock him out and to swipe the turnstile
on May 6. Gutierrez stated that he left the plant and never came
back and another worker, Leon (Nove) Koroskoski, punched him
out for the day. According to Gutierrez, he was outside the plant
at that time to solicit employees to work overtime. Gutierrez
stated that he finished the union work and left to go to a drug
store while still on union time. By that time, Gutierrez realized
he forgot his wallet and called Koroskoski to retrieve it for him.
He said that his wallet contained his ID badge for clocking out
and for swiping the turnstile. He instructed Nove to bring down
his wallet so that he could go back in to punch out, but Nove did
not do that (Tr. 689−692; 724−730). Instead, Koroskoski
clocked Gutierrez out at the end of the shift and used his badge
to swipe himself out. Gutierrez stated this had never happened
before. Gutierrez denied that he instructed Koroskoski to clock
him out or to use his badge to swipe the turnstile.
Gutierrez was suspended after his interview with Clark-Mu-
hammad and discharged on July 1 (CP Exh. 8). Gutierrez was
charged with
-Falsifying, making material omissions from or tampering with
any Company records, this includes obtaining employment
based on false or misleading information; falsifying medical
records, time records, product records, quality records, etc.
-Leaving the work area without authorization.
Gutierrez stated that there is progressive discipline and he
should not have been discharged since he only had one prior in-
fraction for which he received a warning for walking around the
plant with a cup of coffee, more than 7 years ago, another warn-
ing and an absenteeism infraction prior to 2009 that he received
counseling.11
3. The discharge of Bruce Scherer
Melgar also review the turnstile entries and overtime hours of
employee Bruce Scherer (Scherer). Melgar testified that Scherer
had consecutive exits with no corresponding entries into the
plant on May 5 and 6. Melgar reviewed the security video on
those dates and noticed that Scherer bypassed the turnstile on
May 5 at 5:36 p.m. and there was no turnstile record that he re-
turned to the plant. Scherer then reportedly departed the plant at
11:31 p.m. Melgar testified that on May 6, Scherer had two exits
at 2:57 p.m. and at 7:11 p.m. with no entries back to the plant.
The assumption was that Scherer returned to work at a time after
2:57 p.m. and then left the plant again at 7:11 p.m. Melgar con-
cluded that Scherer intended to hide the fact that he was actually
outside the building for the entire time from 2:57 p.m. until 7:11
knowledge regarding Gutierrez’ discharge.
MONDELEZ GLOBAL, LLC 21
p.m. when he should have been working. Melgar determined
that Scherer had 4 hours of unaccounted time between 2:57 p.m.
and 7:11 p.m. (Tr. 856−859).
Melgar believed his assumption was correct about Scherer af-
ter he reviewed a security camera screen shot that showed
Scherer squeezing between the turnstile bar and the wall in order
to bypass the turnstile and not use his card to enter the plant on
May 5 (GC Exh. 13 at p. 36).
Bruce Scherer (Scherer) testified that he had over 31 years of
employment with the Respondent and 20−25 years as a shop
steward. Scherer also held several union positions for over 20
years, including union delegate, executive board member, and
served on bargaining committees for national contracts. Scherer
served as a shop steward at the time of his termination.
At the time of his discharge, Scherer was an icing mixer on
the 3:30−11:30 p.m. shift and supervised by Jerry Lochansky.
Scherer was suspended on June 15 and discharged on July 1.
Scherer stated he had no prior discipline except for one infraction
“years ago” that he thought was expunged from his personnel
record (Tr. 557).
Scherer described several incidents prior to his termination
that the counsel for the General Counsel alleged demonstrated
the Respondent’s antiunion animus. Scherer had argued with his
supervisor over the Respondent’s attempt to bring a subcontrac-
tor in on Saturday when employees could have worked an over-
time shift. Scherer testified that he complained with Claudio
Gutierrez and Nafis Vlashi to Supervisor Marco Lucci that the
Union had qualified employees to work on the Saturday shift.
Eventually, the site safety coordinator (John Lissi) was called
and Supervisor Lucci was informed that the outside contractor
was not qualified to perform the Saturday clean-up work.
Scherer believed that the Respondent was upset and complained
to him the following Monday that the Union had kicked out the
contractor. Scherer replied that it was not the Union because
Lissi had agreed that the contractor was not qualified to perform
the clean-up work. Scherer stated this to HR Representative
Dawn Sprague and Supervisor John Laten (Laten). Sprague re-
plied that the Union did not have a contract, implying that the
contractor should have been permitted to work.
Scherer described a second incident in February 2016 when
the Respondent instituted a new bakery line. Scherer believed
that it was instituted to reduce overtime work. Scherer com-
plained that the Respondent instructed workers to cross crafts to
perform duties in other workers’ job classification. In this in-
stance, Scherer testified that the Respondent was using utility
workers to perform floor help and line attendant classification
work. Scherer said this was an ongoing problem and he had con-
fronted Supervisors Laten and Henry Trumpataz over this cross-
over classification work. Scherer also spoke to Supervisor Dan
Calibrese over the use of workers in the packing department to
work at another department (Tr. 566).
Scherer was also involved in the T-shirt with the union logo
incident and was instructed by Kuratli, in the presence of Clark-
Muhammad, to remove his union logo T-shirt (Tr. 594). Scherer
stated that other workers were also told to return their T-shirts.
Scherer said that the T-shirts were company property, but the
12 Scherer was never charged with using someone else’s ID card.
shirts are the workers’ own to maintain and he instructed the
workers not to take them off. Scherer was also involved in the
incident with the American flag that he and other union members
had wanted to put up near the employees’ locker room but was
told by Kuratli to take the flag down (CP Exh. 18).
Scherer’s union position also allows him to have designated
days to complete union business, usually full time on Wednes-
days and Thursdays and, on occasions, Fridays. Scherer’s time
clock ins and outs would reflect his union time worked. While
on union business, Scherer would not be performing his routine
work duties. Scherer described that he would deal with Clark-
Muhammad while on union business in areas such as when the
workers being forced to arrive to work 15 minutes earlier than
their scheduled time without paying them on penalty of disci-
pline. Scherer would also assist workers when they are sus-
pended or otherwise disciplined. During the disciplinary inter-
view, as the shop steward, Scherer would routinely receive a
form 101, which is a form used by the Respondent and provided
to the charged worker that described the reason and the facts for
the disciplinary action (See, CP Exh. 15 for examples of the
form).
Scherer testified that he was called to Clark-Muhammad’s of-
fice on June 15 at 2:30 p.m. by Supervisor Gordon Cordasco.
Scherer said that the supervisor did not present him with a form
101. Scherer stated that an alternate shop steward was present in
Clark-Muhammad’s office. Scherer also noted that an unidenti-
fied individual was also present, who he discovered later as the
Security Director Keenan. Scherer was interrogated about his
whereabouts on May 5 and 6 and questioned by Clark-Muham-
mad about his punch ins and outs. Scherer explained that a su-
pervisor would manually punch him in if he was working over-
time and punch him out when overtime is completed. Scherer
also recalled that Clark-Muhammad asked if he had used anyone
else’s badge to clock in or out. Scherer denied using another
worker’s badge.12
Scherer stated that his interview lasted from 5−10 minutes (Tr.
569–577). Scherer stated that he never received a signed copy
of the interview. Scherer was immediately suspended after his
interview and was discharged, effective July 1 (CP Exh. 7).
Scherer was charged with
-Falsifying, making material omissions from or tampering with
any Company records, this includes obtaining employment
based on false or misleading information; falsifying medical
records, time records, product records, quality records, etc.
-Leaving the work area without authorization.
Scherer was not shown any photographs or records by Clark-
Muhammad to support his discharge. Scherer was told by her
that he manually punched in on May 5 at 7:18 but there were no
recorded photographs of him going through the turnstile.
Scherer was also accused of back-to-back departures at 5:36 p.m.
and 11:31 p.m. with no corresponding turnstile records of him
returning to the plant before the 11:31 p.m. departure. For May
6, Scherer was told he had no departures recorded at the turnstile
for 2:57 and 7:11 p.m. (second shift).
Scherer stated that he was scheduled for union business on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
May 5 and 6 (GC Exh. 17; Tr. 617) and would attend to his union
activities throughout the plant, including the outside areas where
there are picnic tables to talk with the workers. Scherer stated
that he would clock in when he arrives to work and when he
leaves at the end of his workday, but would also use his badge to
swipe the turnstile on various occasions to get coffee, take a
break or to talk with employees about overtime work when they
are outside the plant. Scherer stated that it is rare that workers
are terminated for thief of time, maybe only given a warning and
only after numerous warnings and write-ups before a suspension
would be issue (Tr. 581).
Scherer admitted that, on occasions, he could not swipe in or
out when he forgot his badge while on his breaks or to escort
workers to the plant. Scherer testified he would usually notify a
supervisor, including the safety site coordinator when he does
not have his badge. Scherer said he does not sign a security log-
book when he walks in or out without his badge. Scherer also
stated that there are occasions that the turnstiles did not work
even when he has a badge. On the occasions that he fails to take
his badge, Scherer admittedly would walk around the turnstiles
bar through a space that is not blocked by the bar or through the
disability entrance and wave to the security guard (Tr. 591; CP
Exh. 12 at p. 7).
On cross-examination, Scherer admitted to bypassing the
turnstile but was not certain whether it was on May 5 or May 6
at 7:45 p.m. Scherer stated that Clark-Muhammad did not give
him an opportunity to respond to the reason for bypassing the
turnstile (Tr. 618). At the hearing, Scherer testified that the turn-
stile not working on that day (Tr. 626). Scherer stated that he
never informed Clark-Muhammad that he was on union business
during the interview because Scherer was not certain as to what
weekdays were May 5 and 6. At the hearing, Scherer testified
that he was on union business on both days when he had the op-
portunity to look at his time schedule after his interview.
There was no documented evidence at the hearing to show that
Scherer had any prior recent disciplinary action against him.
4. The discharge of Nafis Vlashi
Melgar also reviewed the overtime hours and the ratio of turn-
stile entries and days worked for Nafis Vlashi (Vlashi) for Sep-
tember 28, 29, November 18, 2015, May 5, 6, and 12, 2016.
On September 28, Melgar discovered 2 consecutive entries for
Vlashi. Melgar said that the 2 consecutive entries were within
seconds of each other. He noted a 3:09:30 exit (leaving the plant)
and then a second one at 3:09.37 in (returning to the plant). Mel-
gar also noted an entry entering the plant at 5:42 p.m. Melgar
found it strange that Vlashi would have two “ins” at 3:09 and
5:42 without an exit from the plant. Melgar concluded that
Vlashi had swiped out at 3:09:30 and then swiped back in at
3:09:37, but he was actually not returning to work and was out-
side the facility doing nonwork activities and did not swipe into
the plant until almost 3 hours later at 5:42 p.m. Melgar stated
that Vlashi was missing from work for a total of 4 hours on Sep-
tember 28.
Melgar said there was a similar pattern with Vlashi’s turnstile
entries for September 29. He testified that Vlashi left the plant
with an entry at 9:50:51 a.m. and swiped in at 9:50:55 a.m. Mel-
gar said that Vlashi did not swipe back in until 55 minutes later.
This pattern occurred two more times on September 29. Melgar
said that Vlashi swiped out at 4:51 p.m. but swiped in 3 seconds
later but did not actually work until he swiped in 48 minutes
later. A third incident occurred when Vlashi did not swipe into
the plant until 7:40 p.m. Melgar stated that Vlashi was missing
from work for a total of 150 minutes on September 29 (Tr. 830).
On November 18, Melgar stated that Vlashi was seen on the
security camera going through the turnstile at 11:52:07 by swip-
ing out and then swiping back in. Melgar testified his suspicions
were confirmed that Vlashi would take extended breaks by swip-
ing his card a few seconds later as if he had returned to work.
Melgar stated that Vlashi did not swipe back into the plant (to
work) until 12:47:38 p.m. on November 18 (GC Exh. 13 at 18).
Melgar testified that May 5, 2016, Vlashi exited the plant at
11:55 a.m. and returned at 12:52 p.m. However, the turnstile
entries show that Vlashi had a second return to the plant at 7:45
p.m. but there was no entry that he had left the plant after 12:52
p.m. The entries also reflect that Vlashi finally left work on May
5 at 9:22 p.m. but was manually punched-out at 11:30 p.m., giv-
ing him a total of 25 percent additional overtime while he was
actually absent from work (Tr. 843, 844).
Melgar again discovered a pattern of attendance abuse by
Vlashi on May 6. Melgar said that Vlashi had turnstile entries
showing several quick exits and returns while he was supposed
to be working on overtime. Melgar noted that Vlashi arrived at
work at 7:29:30 a.m. and exited out at 3:10 p.m., returned to
work at 3:15 and departed at 3:32 p.m., returned to the plant at
3:37 p.m. and then out by 3:43 p.m., then returned to work at
7:25 p.m. and exits again at 10:04 p.m. Vlashi returns to work
at 11:17 p.m. in order to clock out for the day at 11:30:31 p.m.
(Tr. 845−846).
Melgar stated that Vlashi was absent from work for 5 hours
even though he was paid for those 5 hours on May 12. Melgar
stated that Vlashi arrived to work at 7:24:24 a.m. (GC Exh. 13 at
21) and an exit by Vlashi at 12:34 p.m. Vlashi did not return
until 1:27 pm. Vlashi then exited the plant at 3:30 p.m. and re-
turns at 6:21 p.m. and left at 6:53 p.m. and did not return to the
plant until 11:11 p.m. and then finally clocking out for the night
at 11:30 p.m. Melgar concluded that Vlashi was absent for 5
hours during his shift and stated that he only returned to the fa-
cility 18 minutes before the end of the shift to punch out (Tr.
851).
Melgar also reviewed Vlashi’s work hours for the following
week and discovered two entries by Vlashi at 6:19 p.m. and 8:55
p.m. on May 21 but Vlashi had no exits recorded during the time
he was on overtime. Melgar also noted that on May 22, Vlashi
was recorded as having exited the plant at 2:31 p.m. and not re-
turning until 6:06 p.m. Melgar concluded that Vlashi had unac-
counted time while on overtime from 2:31 p.m. to 6:06 p.m. (Tr.
873).
Vlashi was employed by the Respondent from 1994 until dis-
charged on July 1. At the time of his employment, Vlashi
worked from Monday to Friday on the 7:30 a.m.−3:30 p.m. shift.
He would often have overtime hours on the weekends from
3:30−11:30 p.m. Vlashi was also president of Union Local 719
since 2016 and was the shop steward for the packing and floor
departments for the past 8 years. Vlashi was involved in the un-
ion campaign to negotiate a new contract and coordinated and
MONDELEZ GLOBAL, LLC 23
spoke at the union rallies in front of the plant on April 25, 26,
May 9, and 12. Vlashi also posted on Facebook pictures of the
union workers wearing the union logo T-shirts that the supervi-
sor demanded they remove (CP Exh. 17).
Vlashi testified that he was on official union time Tuesday,
Wednesday, and Thursday, but may be engaged in union busi-
ness at any time. Vlashi was responsible for scheduling the over-
time hours for the workers on all three shifts on behalf of the
Respondent. While on union time, he could be working in dif-
ferent areas of the plant or even outside of the plant if he was
looking for a worker or supervisor. Aside from his 3 days of
union business in scheduling the overtime for the workers,
Vlashi, as a steward, also dealt with supervisors on potential
grievances and discipline of the workers.
Vlashi testified that he was involved in the January 2016 inci-
dent when the Respondent attempted to bring in a subcontractor
for a weekend shift instead of using the regular workers. Vlashi
said he was informed by Scherer and Gutierrez that the subcon-
tractor was not qualified in safety to clean the lines. Vlashi tes-
tified he met with Supervisor Marco Lucci, who had refused to
listen, and he then elevated the issue to John Lissi, the safety
coordinator. According to Vlashi, Lissi informed Lucci that the
subcontractor could not perform the work because of safety is-
sues. Vlashi said he was involved in a similar incident in Febru-
ary 2016, when the Respondent placed workers in the utility clas-
sification to perform floor help work. Vlashi said he demanded
that Supervisor Dan Calibrese remove the utility workers.
Vlashi also testified to antiunion animus when Supervisor
John Laten informed the packaging department workers in
March 2016 that they had no contract and also recalled Supervi-
sor Mike Goodin telling the same to the mixing department
workers during the April/May time frame.
Vlashi was summoned by Clark-Muhammad on June 15.
Vlashi was represented by alternate shop steward Gail Washing-
ton when he met with Clark-Muhammad. Vlashi demanded a
regular steward because he did not believe Washington was ca-
pable of representing him. His request was denied.
Vlashi testified that he was asked about his schedule on May
6, 12, 21, and 22. Vlashi stated to Clark-Muhammad that he
clocked in and out at his regular time on those dates, but insisted
that the other clock-ins and outs were done manually by a super-
visor because that was how it was done when a worker was on
overtime. Vlashi stated that he did not recall exactly when and
what he did on those dates. He testified that the interview lasted
10−15 minutes and was told by Clark-Muhammad that he was
suspended after the interview. Like Scherer and Gutierrez,
Vlashi received his letter of termination on July 1 (CP Exh. 9)
and stated the following
-Falsifying, making material omissions from or tampering with
any Company records, this includes obtaining employment
based on false or misleading information; falsifying medical
records, time records, product records, quality records, etc.
-Leaving the work area without authorization.
Vlashi received discipline prior to his suspension and dis-
charge, including verbal warnings, counseling, a 5-day suspen-
sion, and seven incidents of absenteeism from 1994 through
2016. His last infraction was on April 11, 2016, for poor work
performance and he was given a verbal counseling (R. Exh. 9).
The Testimony of Michael Keenan
Clark-Muhammad was no longer employed by the Respond-
ent at the time of this hearing and was not subpoenaed to testify.
Michael Keenan (Keenan) testified that he was the Regional
Business and Integrity Officer and Security Director for North
America for the Respondent at the time of the three discharges.
Keenan was responsible for security and compliance in the re-
gion and his duties were a combination of risk assessment, phys-
ical, and procedural security (Tr. 1000).
Keenan stated that he was informed by Clark-Muhammad of
the theft of time by Vlashi, Scherer, and Gutierrez and received
a copy of the time data analysis completed by Melgar (GC Exh
19). Keenan also received the analysis for Koroskoski, Zoran
Naumoski, and John Manevski (R. Exh. 11). Keenan partici-
pated in the investigative interviews of all the named workers
except for Scherer. Keenan did not ask any questions of his own
and said each interview was 20−30 minutes on average.
Keenan was provided an outline of questions that Clark-Mu-
hammad would ask at the interviews. He reviewed the outlines
before the interviews but did not recommend any revisions on
the questions. He said that Clark-Muhammad took the notes and
were reviewed by him (R. Exh. 12). Keenan believed that the
notes were an accurate description of the workers’ responses to
the questions.
Keenan was aware that each worker was suspended after the
interview. Keenan believed the workers were disciplined for be-
ing out of the building for an extended period of time when they
should have been working. He concluded this constituted theft
of time (Tr. 1013).
Applicable Legal Standards
Section 8(a)(1) of the Act prohibits employer interference, re-
straint, or coercion of employees for their exercise of the rights
guaranteed in Section 7 of the Act. Those rights include “the
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.”
Section 8(a)(3) prohibits employers from discriminating in re-
gard to an employee’s “tenure of employment . . . to encourage
or discourage membership in any labor organization.” An em-
ployer violates Section 8(a)(3) by disciplining employees for an-
tiunion motives. Equitable Resources, 307 NLRB 730, 731
(1992). To establish a violation of Section 8(a)(3) and (1) in
cases where a discharge is alleged in a joint employer (or suc-
cessorship) context, the General Counsel has the burden to prove
that the discharge of employees was motivated by employer an-
tiunion animus.
In assessing Respondent’s motive, this case is no different
than any other 8(a)(3) case. The Board requires the General
Counsel to make an initial showing sufficient to support an in-
ference that the alleged discriminatees’ protected conduct was a
“motivating factor” in the employer’s decision. Then the burden
shifts to the employer to demonstrate that the same action would
have taken place even in the absence of protected conduct.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
v. Transportation Management Corp., 462 U.S. 393, 399–403
(1983); American Gardens Management Co., 338 NLRB 644
(2002).
The Wright Line test requires the General Counsel to make a
prima facie showing sufficient to support an inference that the
employee’s protected conduct motivated the employer’s adverse
action by demonstrating that: (1) the employee engaged in union
activity; (2) the employer had knowledge of that union activity;
and (3) the employer harbored antiunion animus. Amglo Kemlite
Laboratories, Inc., 360 NLRB 319, 325 (2014), enfd. 833 F.3d
824 (7th Cir. 2016); Advanced Masonry Associates, LLC, 366
NLRB No. 57 (2018).
Discussion and Analysis
First, addressing the counsel for the General Counsel’s burden
of proof, I find, and it cannot be reasonably disputed, that Nafis
Vlashi, Bruce Scherer, and Claudio Gutierrez engaged in union
activity well known to the Respondent before their respective
discipline was taken. It is also without dispute that the employer
harbored antiunion sentiments against all three union officials.
Various supervisors made antiunion comments to Vlashi,
Scherer, and Gutierrez. None of these comments were rebutted
by any witnesses testifying on behalf of the Respondent as being
untrue or that such comments were not made. As such, I credit
the testimony of Vlashi, Scherer, and Gutierrez that such com-
ments by the supervisors were in fact made.
Nafis Vlashi was employed by the Respondent for over 23
years and was the president of the union local since January 2016
until the time of his termination. Vlashi also served as a steward
for 8 years. Vlashi worked for the Union 3 days per week in
scheduling overtime for the workers and coordinating their over-
time schedule with the Respondent. Vlashi was paid by the Re-
spondent for his union work. Vlashi also participated in negoti-
ations over a new contract, along with Milewski and attended
rallies over a new contract and to boycott the outsourcing of jobs
to a foreign country. Vlashi testified that he spoke at the rallies,
prepared and carried picket signs and distributed union literature.
Vlashi’s rallies and union events were posted on Facebook and
ostensibly seen by several supervisors who were friends on so-
cial media. Vlashi, Scherer, and Gutierrez were involved in a
dispute with management when the Respondent attempted to use
an outside contractor on a January weekend to clean the plant
when regular employees were available to perform the same du-
ties. The three union officials elevated their dispute to John
Lissi, the safety coordinator, who agreed with them and the con-
tractor did not perform the work. Vlashi also testified that Su-
pervisor John Laten told employees that “You guys have no con-
tract” in March and Supervisor Mike Goodin made a similar re-
mark about the workers not having a contract in April. Vlashi
was suspended in June and discharged on July 1.
Bruce Scherer was employed for over 30 years prior to his
termination. At the time of his termination, Scherer was a stew-
ard and had held that position for 20 years. Scherer, like Vlashi,
also performed union business in scheduling workers for over-
time 2 days per week that was sanctioned by the employer.
Scherer was involved in the confrontation over the workers
wearing T-shirts with the union logos when Clark-Muhammad
and Charlotte Kuratli demanded that the workers return their
shirts to the employer. Scherer also testified to his dispute with
Supervisor Dan Calibrese over the use of utility workers in an-
other department. In spring 2016, Calabrese told Scherer that the
workers do not have a contract. Scherer was suspended in June
and discharged on July 1.
Claudio Gutierrez had been employed for over 25 years at the
time of his termination. Gutierrez served as a shop steward for
20 years. Gutierrez was a floor help, but assisted the employer
to find staffing for overtime, as part of his union time. Gutierrez
was also involved in the above incident over the staffing of a
contractor to perform weekend cleanup work at the plant in Jan-
uary and in the employer’s attempt to use utility workers to per-
form work outside of their job classification in March. Gutierrez
testified that Supervisor Calibrese told him there was no contract
and the employer can do whatever it wanted. Gutierrez testified
that he argued with Dawn Sprague, who told employees they had
no contract. Gutierrez also represented an employee who was
not permitted to work until the following week by Clark-Mu-
hammad after his return from short-term disability. Gutierrez
further testified that he was told by Plant Manager Kuratli in May
to return his T-shirt with the union logo and then Calibrese and
Laten told him to take down the American flags that he posted
with Vlashi and Scherer in front of the locker room. Gutierrez
was suspended in June and discharged on July 1.
Having met this requisite showing that the discharged workers
engaged in union activity known to the Respondent and there
was antiunion animus demonstrated on the part of the employer,
the burden now shifts to the Respondent to prove, as an affirma-
tive defense, that it would have discharged the employees even
in the absence of their union activity. To establish this affirma-
tive defense “an employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of the
evidence that the same action would have been taken even in the
absence of the protected activity.” L.B.&B. Associates, Inc., 346
NLRB 1025, 1026 (2006). “The issue is, thus, not simply
whether the employer ‘could have’ disciplined the employee, but
whether it ‘would have’ done so, regardless of his union activi-
ties.” Carpenter Technology Corp., 346 NLRB 766, 773 (2006).
Unlawful motivation is most often established by indirect or
circumstantial evidence, such as suspicious timing and pre-
textual or shifting reasons given for the employer’s actions. Dis-
criminatory motivation may reasonably be inferred from a vari-
ety of factors, such as the company’s expressed hostility towards
unionization combined with knowledge of the employees’ union
activities; inconsistencies between the proffered reason for dis-
charge and other actions of the employer; disparate treatment of
certain employees with similar work records or offenses; a com-
pany’s deviation from past practices in implementing the dis-
charge and proximity in time between the employees’ union ac-
tivities and their discharge. W.F. Bolin Co. v. NLRB, 70 F.3d
863, 871 (6th Cir. 1995).
For the stated reasons below, I find that the Respondent has
not met its burden to show that the same discipline against the
discharged individuals would have been taken in the absence of
their protected activity.
Vlashi, Scherer, and Gutierrez were Singled Out for the
MONDELEZ GLOBAL, LLC 25
Respondent’s Overtime Analysis
Turning to the Respondent’s defense, the Respondent con-
tends that Vlashi, Scherer, and Gutierrez were discharged for es-
sentially not working when they should have been working. All
three were charged with the same infractions, to wit
-Falsifying, making material omissions from or tampering with
any Company records, this includes obtaining employment
based on false or misleading information; falsifying medical
records, time records, product records, quality records, etc.13
-Leaving the work area without authorization.
I find that the so-called nondiscriminatory reason for the dis-
charge of Vlashi, Scherer, and Gutierrez was clearly baseless.
The attempt by the Respondent to reduce overtime hours is laud-
able but the study conducted by Melgar was applied in a dispar-
ate and discriminatory manner to single out the top union eche-
lon.
Melgar said he was concerned over excessive overtime. Mel-
gar selected 16 random weeks from 2015–2016 and selected the
workers who had 80 or more hours of work in a single week.
Melgar then identified a list of 59 workers who appear on this
list at least once and performed an analysis of their ratio of turn-
stile entries and exits per days of work; verified payroll patterns
for all 59 workers, verified manual clock ins; verified turnstile
records to determine time elapsed on the job; and verified any
discrepancies between the turnstile and payroll records.
Melgar determined that Justin Colucci, Richard Smith, Nafis
Vlashi, Paul Moser, Donald Pointer, Tommy Jacobs, Michelle
Barnes, and Jerzy Maciejewski had 5 or more weeks of 80 work
hours or more. Scherer had only 1 week of 80 or more work
hours and was situated towards the bottom of the list of 59 em-
ployees. Gutierrez’ use of overtime hours was not even on the
radar (GC Exh. 19 at 4).
Armed with this information, Melgar then looked at the top
workers with 80 or more work hours and examined their turnstile
ratios. Ostensibly, employees with high work hours would not
have high turnstile entries because the workers would be work-
ing instead of entering and leaving the facility. Similarly, a high
ratio of turnstile entries of workers performing overtime work
would tend to establish that those workers were not working
while on overtime. From the names mentioned above, only
Vlashi, Pointer, Colucci, Smith, and Jacobs had high ratios of
turnstile entries with high overtime hours. The worker with the
highest turnstile ratio was Zoran Naumoski with 5.81, followed
by Jory Stith (5.46), Semin Hadzi (5.37), Tommy Jacobs (5.71),
John Moody (4.06), and Nafis Vlashi. Vlashi had a turnstile ratio
of 3.76 of entries and departures over a 97-day period. Scherer’s
ratio was 2.02 and lower than R. Smith, Pointer, Brown, Simp-
son, Colucci, and M. Smith. Gutierrez was not on the list (GC
Exh. 19 at 3).
The Respondent explained that Naumoski retired before he
was investigated, and Tommy Jacobs’ job required him to have
multiple entries into the facility. Nevertheless, aside from Nau-
moski and Jacobs, no inspection was conducted by Melgar (or
Clark-Muhammad) on the high overtime hours and
13 To be clear, there was no evidence proffered by the Respondent to
show that the discharged workers falsified medical records, product
corresponding high turnstile ratios of Stith, Hadzi, Moody, R.
Smith, M. Smith, Pointer, Brown, Simpson, and Colucci.
I find that Vlashi, Scherer, and Gutierrez were singled out for
disparate and discriminatory treatment in the manner that they
were selected for review of their overtime hours and turnstile en-
tries. Melgar admitted that he only reviewed the turnstile ratios
and the recorded camera pictures of Vlashi, Scherer, and
Gutierrez. Melgar never credibly explained his inspections of
the entries and camera records for Scherer and Gutierrez when
the two workers were not high in their turnstile ratios as com-
pared to other workers. Indeed, Gutierrez did not even make the
list of 59 workers with a high turnstile entries ratio. Further,
Melgar never credibly explained the reason he did not review the
turnstile entries along with any camera pictures for Stith, Hadzi,
and Moody before reaching Vlashi. Melgar also never credibly
explained the reason for not reviewing the turnstile entries and
camera records for R. Smith, Pointer, Brown, Simpson, Colucci,
and M. Smith before reaching Scherer. Melgar explained that he
did not complete his review because of personal reasons and
other work projects. This explanation is simply not worthy of
belief given that overtime usage was a high priority with the
plant manager and Melgar was given the green light to devote
his time to analyze this “problem” of overtime usage.
The Disciplinary Investigation Conducted by the
Respondent was a Sham
I also find that the investigation conducted by Clark-Muham-
mad once she was presented with the analysis done by Melgar
on Vlashi, Scherer, and Gutierrez fell short of a fair and full in-
vestigation. The discharged employees were never provided
with the employer’s form 101, which credible testimony estab-
lishes that the form is presented to the union representative of the
employee charged with discipline and provides a factual narra-
tive of the employee’s alleged infraction (CP Exhs. 2 and 15).
The form would contain valuable information to enable the rep-
resentative to discuss with the worker, such as, the infraction,
time and date of the infraction, reason for the infraction, and in-
formation supporting the infraction, before the meeting with the
HR department. No such forms were provided to Vlashi,
Scherer, and Gutierrez.
Further, Vlashi, Scherer, and Gutierrez were never fully in-
formed of their alleged infractions during their individual meet-
ings with Clark-Muhammad. None received the past practice of
a form 101 that would have provided the reasons and dates for
the alleged infractions. All three workers credibly and consist-
ently testified that the meetings lasted less than 10 minutes, they
were never given specific dates and times of their infractions and
they were not given the opportunity to explain their actions.
Since all three workers testified they were not permitted to take
notes during their interviews, it would have been extremely dif-
ficult for them to provide an explanation after their suspension
but before their discharge for their alleged excessive absences.
Indeed, none of their discharge notices referenced any specific
dates and times of their alleged abuse of time and attendance.
Scherer was interrogated over his turnstile entries for May 5
records or quality records.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
and 6. Scherer was not given an opportunity to review his sched-
ule for those dates. Scherer was immediately suspended after his
interview. Scherer testified he was on union business for his en-
tire shift on May 5 and 6. I credit his testimony on this point and
the record supports his explanation of being on union business
for those dates (GC Exh. 17). Neither Clark-Muhammad nor
Keenan reviewed his work schedule to confirm Scherer’s asser-
tion that he was on union business time on those dates.
Gutierrez’ name only came up in Meglar’s analysis because
Koroskoski was seen on the security camera using a card to
swipe out of the turnstile on May 6 that was subsequently dis-
covered to be Gutierrez’ ID card. Gutierrez was not charged with
any other alleged infractions except for the May 6 incident.
Gutierrez testified that he inadvertently forgot to take his wallet,
which contained his ID badge on that date. Gutierrez called
Koroskoski to bring down his wallet. He denied telling Koros-
koski to clock him out for the day and to swipe him out of the
turnstile. Koroskoski incorrectly believed he was doing
Gutierrez a favor by clocking and swiping him out for the day.
The Respondent did not articulate why Gutierrez’ explanation
was not worthy of belief. As such, I credit Gutierrez’ testimony
that he asked Koroskoski to bring down his wallet but denied
asking him to clock and swipe him out on that day. Gutierrez’
testimony showed that he was honest and had nothing to hide.
There was no reason to single out Gutierrez for discharge.
Gutierrez was never disciplined for past infractions of abusing
time and attendance. Gutierrez had no excessive overtime usage
when analyzed by Melgar. Gutierrez did not have a high turn-
stile ratio.
Vlashi testified that he was asked about his schedule for May
5, 12, 21, and 22. Vlashi testified that he did not recall exactly
when and what he did on those dates. He told Clark-Muhammad
that he clocked in and out at his regular time on those dates but
insisted that the other clock-ins and outs were done manually by
a supervisor because that was how it was done when a worker
was on overtime. I credit Vlashi’s testimony on this point be-
cause Melgar confirmed that a supervisor was indeed the person
who would manually clock-in and out the workers on overtime.
Consequently, the overtime recordation would not be something
that Vlashi would be doing. Melgar also testified that he was
also concerned whether manual punch-outs by a supervisor were
the cause for the excessive overtime. Melgar recommended in
November/December 2015 that only one supervisor (Nick Giu-
lianelli) be assigned to do the manual punch-outs.
Vlashi testified that the interview lasted 10−15 minutes, and
he was told by Clark-Muhammad that he was suspended after the
interview. A thorough investigation was not conducted by either
Clark-Muhammad or Security Director Keenan to determine if
Vlashi was indeed excused from working on those dates in ques-
tion. Elainy Borrero (Borrero) testified that she was and is the
master scheduler for the past 3 years for the Respondent and is
responsible for the schedule of work for the plant workers. Bor-
rero testified that a worker on union business would not need
permission because HR would have already informed her that
the worker was on union business for that entire shift (Tr. 1116,
14 I would note that Donald Kalemba, maintenance and planner su-
pervisor testified below that there was a progressive discipline policy in
1117). Borrero testified that Vlashi was on union business ac-
cording to his work schedule for May 5 and 12 (Tr. 1126, 1127;
CP Exhs. 27, 28). As such, Clark-Muhammad knew that Vlashi
was on union business for May 5 and 12 because her HR depart-
ment would have already informed Borrero of the same. Never-
theless, Clark-Muhammad charged Vlashi for not working on
those 2 days. With regard to May 21 and 22, I credit Vlashi’s
testimony that a supervisor continued to manually punch in and
out Vlashi’s overtime hours. The Respondent proffered no cred-
ible evidence that Clark-Muhammad had investigated the verac-
ity of this explanation or had provided a rebuttal to Vlashi’s ex-
planation.
All three were immediately suspended following the investiga-
tive meeting which one could reasonably conclude that the in-
vestigation was already completed before their meeting and that
the meeting was merely a pro forma exercise by the Respondent.
This is evident since the record is devoid of any credible evi-
dence of a meaningful investigative follow-up that was con-
ducted by the Respondent to determine the veracity of the expla-
nations provided by the workers before they were discharged.
An employer’s failure to conduct a meaningful investigation and
to give the alleged discriminatee an opportunity to explain
demonstrates discriminatory intent. Andronaco, 364 NLRB No.
142 (2016), slip op. at 14, citing inter alia, Ozburn-Hessey Lo-
gistics, LLC v. NLRB, 609 Fed. Appx. 656, 658 (D.C. Cir. 2015),
enfg. 357 NLRB 1632 (2011). Also see Sociedad Esponanola
de Auxilio Mutuo Y Benefencencia de P.R., 342 NLRB 458, 459–
460 (2004), enfd. 414 F.3d 158 (1st Cir. 2005).
The Board has held that an employer’s failure to conduct a fair
and full investigation into the incident causing the employee’s
discharge and to give the employee the opportunity to explain
his action before imposing discipline is a significant factor in
finding discriminatory motivation. Publishers Printing Co., 317
NLRB 933, 938 (1995), enfd. 106 F.3d 401 (6th Cir. 1996).
The Discharges were Inconsistent with the Treatment of Other
Workers with Similar Infractions
The parties argued over whether there was disparate treatment
of the union officials discharged as compared to other similarly
situated employees who were not subject to the same discipline.
The Respondent maintains that it has the full power to discipline
and discharge employees under the CBA (GC Exh. 3: art. 34)
and has the absolute right to determine the level of discipline
(GC Exh. 3: art. 40). The counsel for the General Counsel argues
that discipline is imposed following progressive discipline prac-
tices.14 I do not need to determine whether there was progressive
discipline in place at the facility or that the Respondent has the
absolute power to determine the extent of discipline. It is suffi-
cient to find a violation of the Act when the three workers were
disparately treated, and their discharges were motivated by their
union status and activity in support of the Union.
The counsel for the Respondent argues that there was no dis-
parate treatment of the discharged employees. DiStefano testi-
fied that she was aware of the discharges of Vlashi, Scherer, and
Gutierrez. She indicated that she had reviewed the report of
place at the Fair Lawn plant.
MONDELEZ GLOBAL, LLC 27
overtime pattern prepared by Melgar and the 59 employees with
excessive and multiple turnstile entries. DiStefano was aware
that a worker, John Manevski had excessive time out of the
building during his work shift on February 19, 20, April 25, May
7 and June 4 and 11 (R. Exh. 11) and was subsequently termi-
nated on July 1 for irregularities in his time and attendance. Ma-
nevski was not one of the 59 employees with a high ratio of turn-
stile entries. She was also aware that Koroskoski was terminated
on July 1 for a similar infraction (R. Exh. 14). Koroskoski was
also not one of the 59 employees.15 DiStefano also pointed out
that Christian R. Barreto was also frequently outside of the build-
ing but was not discharged.
Christian R. Barreto (Barreto) testified that he is not a union
official and was indeed questioned by Clark-Muhammad regard-
ing his frequent departures from the building on about June 15.
Barreto replied that he is a frequent smoker and was taking
smoke breaks on that day when he lost his wallet. Barreto ad-
mitted to walking around the turnstile to reenter the building and
was caught on the security camera. Barreto received a 3-day
suspension for going around the turnstile for June 15. Barreto
has also been disciplined before for extended breaks in the past
with a 5-day suspension in 2015 (Tr. 758−770; GC Exh. 18).
DiStefano testified that Barreto was not discharged because there
was no intent to deceive and that he had left the building by sign-
ing in and out of the lobby security log only for a smoke (Tr.
1169−1171).
While DiStefano’s testimony may seem to indicate that work-
ers not holding union positions or engaged in union supported
activity were also discharged (Manevski and Koroskoski) and
discipline was mitigated with a believable explanation as in the
case of Barreto, I am still troubled over the disparity of treatment
of the three discharged employees as compared to literally, hun-
dreds of multiple entries of the 59 employees that were not in-
vestigated further by the HR department. Indeed, the record
shows that since 2014, the discipline imposed for abuse of time
and attendance were mainly counseling, verbal and written warn-
ings and some suspension of 10 days or less (CP Exh. 15). I also
note that DiStefano testified that she did not recall if other names
were raised and that she did not recall if the 59 employees with
multiple turnstile entries were considered for further inspection
or discipline. DiStefano did not instruct Clark-Muhammad to
review turnstile entries of the 59 employees (Tr. 1207, 1208).
Specifically, in the comparison of Gutierrez with Barreto,
Clark-Muhammad did not extend the same benefit of doubt to
Gutierrez’ explanation that he too, like Barreto, forgot his wallet
and that Koroskoski inadvertently used Gutierrez’ badge to
swipe him out. Gutierrez credibly testified that he instructed
Koroskoski to bring down his wallet and not to swipe him out.
Gutierrez was discharged for this single incident. As already
noted, Gutierrez had no prior discipline for time and attendance
abuse; he was not one of the 59 employees filtered by Melgar;
15 According to DiStefano’s testimony, Melgar was instructed by
Clark-Muhammad to inspect the turnstile entries and time out of the
building for Manevski and Barreto. No rationale was provided as to why
other workers with equally high entries were not investigated.
16 It is unclear to me how DiStefano could testify that Barreto had no
intentions to deceive since she was not present during the interview of
and his testimony was equally credible as was the testimony of
Barreto. In contrast, Barreto has been disciplined in the past for
abusing his break time with a 5-day suspension in 2015. DiSte-
fano testified that Barreto had no intent to deceive and therefore,
he received a 3-day suspension.16 However, Barreto had already
served a 5-day suspension in 2015 and therefore his discipline
for a second violation of the same infraction in 2016 should have
been more severe. Further, there is no evidence to suggest that
the Respondent found the testimony of Barreto more credible or
that it doubted the veracity of Gutierrez’ testimony because
Clark-Muhammad did not testify as to her rationale for recom-
mending his discharge. Windsor Redding Care Center, LLC,
366 NLRB No. 127 (2018).
Clark-Muhammad also treated Scherer in a disparate manner
when she failed to consider the objective record that Scherer was
on 100 percent union business on the two dates (May 5 and 6)
that he was charged with abusing his time and attendance. I
credit Scherer’s testimony that while he was on union business,
he would not be working his routine duties and would be free to
enter and leave the building in order to seek out a supervisor or
a worker about overtime work.
With regard to Vlashi, Borrero, who was the master scheduler
for the Respondent, provided undisputed testimony that showed
Vlashi was also on union business according to his work sched-
ule for May 5 and 12 (Tr. 1127, 1128; CP Exhs. 27 and 28). In-
asmuch as Clark-Muhammad did not testify, no explanation has
been provided for the rationale in rejecting the explanation pro-
vided by Vlashi that he was on union business on May 5 and 12
and that a supervisor would manually clock him in and out of
overtime on the other dates in question.
Respondent presented no conclusive evidence that Vlashi,
Gutierrez, and Scherer were treated similarly to other employees
disciplined for bad behavior. Ozburn-Hessey Logistics, LLC v.
NLRB, 833 F.3d 210, 219 (D.C. Cir. 2016), enfd. 361 NLRB 921
(2014), and 362 NLRB 977 (2015) (disparate treatment discus-
sion).17
The Timing of the Discharges Demonstrates Antiunion Animus
I find that the timing of the discharges, shortly after Vlashi,
Scherer, and Gutierrez voiced their support for the Union’s effort
to negotiate a new contract and to protest the outsource of work
to a foreign country supports an inference that the Respondent’s
discipline was motivated by their support for the Union. State
Plaza Hotel, 347 NLRB 755, 755−756 (2006); Toll Mfg. Co.,
341 NLRB 832, 833 (2004); Davey Roofing, Inc., 341 NLRB
222, 223 (2004) (temporal proximity between union activity and
employer’s adverse action is evidence of unlawful motivation).
Vlashi, Gutierrez, and Scherer were discharged in July when
the Union was engaged in contract negotiations with the em-
ployer in the spring. They engaged in rallies in support of a con-
tract and in protests over the outsourcing of work. They con-
fronted Respondent supervisors over violations of the expired
Barreto to ascertain his state of mind.
17 The fact that certain workers not involved in union activity were
also discharged does not rule out a finding that the discharge of Vlashi,
Gutierrez, and Scherer was unlawfully motivated. Flat Rate Movers,
Ltd., 357 NLRB 1321, 1328 (2011).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
contract and were told there was no longer a contract. They wore
and asked workers to wear T-shirts with the union logo and were
instructed to return their T-shirts by the Plant Manager Kuratli
and Clark-Muhammad. This timing represents significant evi-
dence of unlawful motivation. While some supervisors denied
knowledge of the activities in support of the Union by the dis-
charged workers, it is without doubt that Kuratli and Clark-Mu-
hammad were fully aware of their union status and support of the
Union. Such coincidence in time between Respondent’s
knowledge of the employees’ union activity, and their discharge
is strong evidence of an unlawful motive for his discharge.
Trader Horn of New Jersey, 316 NLRB 194, 198 (1995). Indeed,
as recognized by the Board, the “timing alone may suggest anti-
union animus as a motivating factor in an employer’s action.”
Inova Health System v. NLRB, 795 F.3d 68, 82 (D.C. Cir. 2015);
Advanced Masonry Associates, LLC, 366 NLRB No. 57 (2018).
As stated by the administrative law judge in AdvoServ of New
Jersey, 363 NLRB No. 143 slip op. at 31 (2016), “Indeed, “tim-
ing alone may be sufficient to establish that union animus was a
motivating factor in a discharge decision.” Sawyer of NAPA, 300
NLRB 131, 150 (1990); NLRB v. Rain-Ware, 732 F.2d 1349,
1354 (7th Cir. 1084); NLRB v. Windsor Industries, 730 F.2d 860,
864 (2d Cir. 1984); Manor Care Health Services—Easton, 356
NLRB 202, 204, 226 (2010) (Proximity in time between discrim-
inatee’s union activity and discharge supports finding of unlaw-
ful motivation for the termination); LaGloria Oil & Gas, 337
NLRB 1120, 1123, 1132 (2002). (“Discharge shortly after Em-
ployer learned of employee’s union activities, strongly supports
a finding that discharge motivated by union animus”).
Accordingly, I find that the Respondent has demonstrated an-
tiunion animus in violation of Section 8(a)(3) and (1) when it
discharged Vlashi, Scherer, and Gutierrez. I find that their dis-
charge was motivated by their union support and activity for Lo-
cal 179, and that the Respondent failed to meet its burden of per-
suasion to demonstrate the same action would have taken place
even in the absence of the protected conduct. Wright Line, above
at 1089.
5. The Suspension of Richard Nazzaro
The counsel for the General Counsel alleges that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by suspending
Richard Nazzaro because he engaged in union or protected con-
certed activity (GC Br. at 18).
Richard Nazzaro (Nazzaro) has been employed as a welder
mechanic for the past 9 years and is supervised by Don Kalemba,
the senior maintenance supervisor. Nazzaro holds the position
of shop steward and union local vice-president since 2014. Naz-
zaro has been involved with the contract negotiations between
the union and the Respondent. Nazzaro participated in the union
rallies for a new contract during the April-May timeframe. Naz-
zaro was also one of the workers who had worn a T-shirt with
the union logo to work and was told to give up the shirts by the
plant manager.
Nazzaro stated that he works the first shift from 7:30 a.m. to
3 p.m. He is aware that all maintenance and repair workers, ap-
proximately 30 employees would attend a hand-over meeting be-
tween 7 and 7:15 a.m. before the start of the first shift. Nazzaro
testified that the purpose of the morning meeting was for the first
shift supervisor to ask the previous (third) shift supervisor for
any outstanding work issues and then the first-shift workers
would “hand-over” the work that needed to be finished. After it
was determined if there were outstanding or unfinished work, the
first-shift workers would receive their assignments. Similarly,
the purpose of the afternoon hand-off meeting was to have the
workers inform the supervisor of any outstanding or unfinished
assignments and that information would be conveyed to the third
shift supervisor and workers. Nazzaro testified that a supervisor
may not always attend the meetings. On those occasions, the
workers would leave the work orders on the table and leave the
room (Tr. 291).
Joshua Miles (Miles) testified as the maintenance planner and
was responsible for scheduling work, delivering work orders,
and setting up new equipment. Miles testified to the necessity of
having start-up and end of shift meetings in order for accounta-
bility of everyone’s work and to make sure everyone is there to
receive their work orders and to have good communications be-
tween the shifts (Tr. 1087−1088).
Nazzaro was suspended by Supervisor Donald Kalemba fol-
lowing a morning meeting on about June 12. Nazzaro said he
was charged with failing to attend the afternoon meetings on
June 8, 9, and 10. Nazzaro was suspended for 3 days on June 13,
14, and 15 and resumed work on June 18 (Tr. 317, 333; R. Exh.
5).
Nazzaro explained that no one was at the afternoon meeting
except for Mark Sickles and Leon Koroskoski on June 8. Naz-
zaro further testified that he attended a labor-management meet-
ing on June 9 and assumed that the human resource department
would’ve informed his supervisors that he was attending the
management meeting. Nazzaro insisted that he was present at
the June 10 meeting.
Nazzaro said that he had spoken to the maintenance manager,
Ryan Martinez, about conflicts with the meetings and his union
duties. Nazzaro also stated that he is delayed on occasions in
attending the meetings because workers would ask him questions
in his role as a union official. According to Nazzaro, he was told
by Martinez that he had to make the meetings on time and to do
his union work after the meetings.
Nazzaro admitted to missing two meetings in June and was
disciplined with a counseling and verbal warning in 2014 and
2015 for failing to complete his work assignments. Nazzaro had
no prior suspension prior to June (Tr. 337; R. Exhs. 6, 7, and 8).
Mark Sickles (Sickles) has been employed by the Respondent
for over 32 years as a mechanic and started working in building
and trade since April 2016. Sickles has attended hand-off meet-
ings for the past 2 years and knew that attendance was required.
He testified that there is a hand-off meeting after the first shift,
which starts at 7 a.m. and ends at 3 p.m. Sickles testified that the
purpose of the shift meetings was to inform the supervisor(s) of
the work that was accomplished on the shift and the work that
needed to be continued by the following shift. Sickles stated that
there is a hand-off meeting at the beginning of his shift and at the
end of his shift (Tr. 375).
Sickles opined that Nazzaro has been singled out and the su-
pervisors would constantly inquire in the morning and afternoon
hand-off meetings about Nazzaro’s whereabouts. Sickles also
noted that supervisors are “quite often” not present at the
MONDELEZ GLOBAL, LLC 29
afternoon meetings and the workers would then just place their
paperwork on the desk, wait a couple of minutes and leave the
room.
Sickles stated that he was present at the June 10 meeting and
affirmed that Nazzaro was present on June 10. Sickles recalled
that he was standing next to Nazzaro against the wall. Sickles
(who was an alternate shop steward) was aware that Nazzaro was
at a labor management meeting on June 9. Sickles did not testify
whether or not he and Nazzaro were present at the June 8 meet-
ing (Tr. 378, 379).
On cross-examination, Sickles admitted that he has been told
by Kalemba on at least two or three times that he must attend the
morning and afternoon meetings. Sickles, however, said that he
was never disciplined for his non-attendance even though he ad-
mittedly missed the meetings two or three times per week. On
other occasions, Sickles would inform his supervisor that he was
still working on a job. Sickles has received verbal warnings and
counseling for his nonattendance but has never been suspended.
Leon Koroskoski (Koroskoski) has been employed as a
maintenance mechanic/machinist at the Respondent’s Fair Lawn
facility for over 34 years. Koroskoski has been supervised by
Kalemba since 2016. Koroskoski, like Sickles, worked the first
shift from 7 to 3 p.m.
Koroskoski is familiar with the hand-off meetings. He stated
that the first meeting starts before the 7 a.m. shift and the after-
noon meeting is at 2:45 p.m. He stated that the purpose of the
meeting was for the workers to be informed of the work from the
previous shift and to inform the supervisor of the follow-up work
needed for the next shift. Koroskoski stated that Kalemba and
all the supervisors are usually present at the morning shift but
not all during the afternoon shift. Koroskoski testified that if
there are no supervisors present at the afternoon shift, the work-
ers would leave the paperwork on the table and then leave the
room.
Like Sickles, Koroskoski knows Nazzaro and believed that he
was singled out by Kalemba. Koroskoski has observed Kalemba
asking for Nazzaro at the meeting, even on the occasions when
Nazzaro was present. Koroskoski is not aware of any other
workers who are called out by Kalemba for their attendance at
the meeting. Koroskoski was aware that Nazzaro was suspended
for failing to attend the meetings on June 8, 9, and 10. Koros-
koski insisted that he was in attendance with Nazzaro at the June
8 meeting, but no supervisors were present, so they left. Koros-
koski did not recall seeing Nazzaro at the meeting on June 9.
Koroskoski testified that Nazzaro was present in the second
room at the June 10 meeting.
Koroskoski said that he has not attended the meetings when
he is working on an emergency assignment and has never been
disciplined for not showing up at the meeting although he has
missed meetings at least 3 or 4 times. He has also observed that
there have been no supervisors present at the meetings on 4 or 5
occasions in the past year.
Donald Kalemba (Kalemba) has been employed for over 18
years as the maintenance supervisor and planner for the Re-
spondent. It is his responsibility to plan and schedule the work
for the maintenance department. Kalemba supervises up to 30
workers. Kalemba testified that all workers are required to at-
tend the start-up morning meeting and the end-of-shift meeting
for the first shift (7 a.m.-3 p.m.). Kalemba stated that the meet-
ings are usually over within 15 minutes. He stated that the facil-
ity operates on three shifts and the purpose of the meeting is to
…convey the information that happened from the previous
shift over to the next shift. So in our case on first shift, we meet
third shift information. We meet with the supervisor. He con-
veys all of the issues that happened, anything that’s pertinent as
far as machine down time or significant breakdowns. And then
also first shift, we communicate, mean the -- basically, the for-
mat is that we talk about safety first, anything that occurred
during the previous day or any watchouts on regardless -- re-
garding the safety… . And to hand out work orders to for the
day… . The end-of-shift meeting starts at 2:45 p.m. It basically
is a recap of the day. We will review work assignments,
whether they were completed or not. We will collect work or-
ders back from the craftsmen. Also, if there are any outstanding
issues going into second shift that need to be conveyed to them
that they need to follow up on (Tr. 1042–1044).
Kalemba suspended Nazzaro for failing to attend the DMS
(Daily Management System) hand-off meetings. Kalemba noted
that Nazzaro received prior discipline for not attending DMS
meetings (R. Exhs. 6 and 7). Nazzaro received counseling and a
verbal warning in 2014 for not attending the DMS meetings.
Kalemba testified that Nazzaro was also issued a written warning
for not attending a DMS meeting in March 2016 (R. Exh. 8).
Kalemba denied singling out Nazzaro for disparate treatment
and noted that Fred Marshall and Ryan Martinez had previously
spoken to Nazzaro for failing to attend DMS meetings (R. Exh.
13). Kalemba stated that Nazzaro’s attendance did not improve
and was issued a suspension for 3 days because of his non-at-
tendance on June 8, 9, and 10, 2016 (R. Exh. 5). Kalemba testi-
fied that Nazzaro told him that he was at a union meeting on June
9. Kalemba responded that the appropriate procedure is for Naz-
zaro to notify a supervisor.
Fred Marshall (Marshall) testified that Nazzaro worked under
his supervision from June 2012 to 2014. Marshall testified that
he was aware that Kalemba has spoken to Nazzaro about attend-
ing the meetings at the beginning and ending of the shift. Mar-
shall said he has given Nazzaro repeated instructions to attend
the meetings and denied telling Nazzaro that it was alright not to
attend the meetings.
It is noted that Nazzaro was instructed as early as January
2014 by Marshall that it was Nazzaro’s responsibility to inform
his supervisor if he was attending union business and if he cannot
attend the hand-off meetings, he must inform the supervisor the
reason why he cannot attend the meeting (R. Exh. 13).
In contrast to the testimony of Sickles and Koroskoski,
Kalemba disputed that Nazzaro was in attendance on June 8 and
10. He stated that there was no possibility that he would not have
seen Nazzaro at the DMS meeting if he was present. Kalemba
denied that Nazzaro’s union activity or his position in the Union
played a role in the discipline. Kalemba stated that he was not
aware if Nazzaro attended union rallies or had worn a T-shirt
with the union logo prior to his discipline.
On cross-examination, Kalemba explained he was present at
the meetings on June 8, 9, and 10 and would have seen Nazzaro.
Kalemba also stated that Nazzaro was not in the smaller
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
adjourning room because the workers are instructed to attend the
meeting in the larger room and, in any event, Kalemba stated that
there is a cut-out window between the two rooms and he would
have seen Nazzaro if he was in the second room. Kalemba did
not deny that Mike Sickles stated that Nazzaro was in attendance
on June 10 and that Sickles was never disciplined for his non-
attendance. Kalemba testified that Sickles has not been disci-
plined because he was never a frequent offender (like Nazzaro)
in not making the meetings (1074, 1075).
Discussion and Analysis
To establish a violation of Section 8(a)(3) and (1), the General
Counsel has the burden to prove that the suspension of Nazzaro
was motivated by the employer’s antiunion animus. As noted
above, the Board requires the General Counsel to make an initial
showing sufficient to support an inference that the alleged dis-
criminatee’s protected conduct was a “motivating factor” in the
employer’s decision and the burden then shifts to the employer
to demonstrate that the same action would have taken place even
in the absence of protected conduct. Wright Line, above. Upon
my review, I find that the counsel for the General Counsel has
met her burden. I also find that the Respondent articulated a le-
gitimate and nondiscriminatory rationale for suspending Naz-
zaro and that the same discipline would have taken place even in
the absence of his protected conduct. I do not credit Nazzaro’s
testimony with regard to his explanation on his suspension.
First, this is not the first time that Nazzaro has missed the re-
quired meetings in the past 2 years. Nazzaro has a history of
poor performance and work rule violations. As presented by the
Respondent, Nazzaro received counseling for failure to perform
work in a timely manner in July 2014 (R. Exh. 6), a verbal warn-
ing for poor performance in August 2014 (R. Exh. 7), and a writ-
ten warning in March 2016 for failing to attend start-up meet-
ings. On June 8, 9, and 10, 2016, Nazzaro again failed to attend
the start-up meetings and was issued a 3-day suspension (R. Exh.
13). Martinez and Marshall had also spoken to Nazzaro about
his failure to attend the DMS meetings (Tr. 1103−1105; R. Exh.
13). The severity of the discipline in light of his prior transgres-
sions and ample past notice and counseling about his poor at-
tendance at the meetings was progressive and not disparate be-
cause of his union status or protected activity.
Second, Nazzaro testified that he was at the afternoon meeting
on June 8 and that only Sickles and Koroskoski were present
with him, so they left their work orders on the table and departed.
Kalemba testified that there was actually a meeting on June 8,
and he attended the meeting and addressed the workers.
Kalemba testified that at the time Nazzaro was given his suspen-
sion, he made no claim he was in attendance at the June 8 meet-
ing and that they left when no meeting was held (Tr. 1058). I
credit Kalemba’s testimony over that of Nazzaro and Koros-
koski. It is simply nonsensical for Nazzaro and Koroskoski to
testify that no one attended the meeting when the meetings are
usually attended by over 30 workers and supervisors and none
attended the June 8 meeting except for him and Koroskoski. I
would also note that Sickles, who Nazzaro testified was present
with him and Koroskoski on June 8, never testified that he left
when no meeting was held on June 8.
Third, Nazzaro testified that he attended a labor-management
meeting on June 9. At the hearing, Nazzaro claimed that Mar-
tinez and he had an agreement that Nazzaro could miss meetings
to attend to union business. Even if that was true, I credit
Kalemba’s testimony that it was Nazzaro’s obligation to inform
his supervisor that Nazzaro was attending to union business (Tr.
1057, 1058). According to Nazzaro, he was instructed by Mar-
tinez to inform a supervisor if he could not attend a meeting due
to any union business. Sickles testified that he would inform his
supervisor that he was still working on a job and could not attend
the meeting. It would be equally reasonable for Nazzaro to in-
form his supervisor if he was attending to union business and
could not attend the start-up meeting.
Fourth, Nazzaro testified that he was present at the June 10
meeting but standing against the wall in an adjoining room.
Kalemba testified that the workers were instructed to attend the
meeting in the larger room. Kalemba further testified he was
present and did not see Nazzaro, even if Nazzaro was in the ad-
joining room (Tr. 1059). I credit Kalemba’s testimony on this
point inasmuch as Nazzaro, Sickles, and Koroskoski had testi-
fied that Kalemba would frequently call out Nazzaro’s name
even when he was present at the meetings. No such testimony
was provided by the three workers that Kalemba had called out
Nazzaro’s name on June 10 or that Nazzaro had responded in the
affirmative that he was present.
Accordingly, I find that the 3-day suspension of Nazzaro on
about June 13, 2016, by the Respondent was not motivated by
Nazzaro’s union status and/or his activity in support of the Union
and that the same action would have been taken absent Nazzaro’s
protected status and activity. I recommend the dismissal of this
allegation in the complaint.
CONCLUSIONS OF LAW
The Respondent Mondelez Global, LLC is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The Union, Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union, Local 719, AFL−CIO is a la-
bor organization within the meaning of Section 2(5) of the Act.
The Union is, and at all material times, has been the exclusive
bargaining representative for the following appropriate unit:
The baking, packing, warehouse, environmental, maintenance
and repair, distribution and garage employees working at the
Fair Lawn facility, excluding supervisors.
The Respondent violated Section 8(a)(3) and (1) of the Act by
suspending and discharging Claudio Gutierrez, Bruce Scherer,
and Nafis Vlashi.
The Respondent violated Section 8(a)(5) and (1) of the Act
when on about March 15, 2016, the Respondent changed the
length of time an employee must wait after submitting a doctor’s
note before returning to work from an absence of 5 or more days.
The Respondent violated Section 8(a)(5) and (1) of the Act
when in about June 2016, the Respondent changed the work
schedules of the B and R Processors who work in its warehouse.
The Respondent violated Section 8(a)(5) and (1) of the Act
when in about December 2016, the Respondent changed again
the work schedules of the B and R Processors who work in its
warehouse.
MONDELEZ GLOBAL, LLC 31
The Respondent violated Section 8(a)(5) and (1) of the Act
when in March 2016, by Human Resources Director Clark-Mu-
hammad, the Union was told that joint meetings would be held
with the new hires and about May 2016, by Human Resources
Assistant Tasha McCutcheon, the employer will begin having
one of its representatives accompany the union representative
when he met with employees at new orientation.
The Respondent violated Section 8(a)(5) and (1) of the Act
when since May 2016, it unreasonably delayed, failed and re-
fused to provide the Union with the information of the names of
anyone disciplined for violations of its clock-in-clock-out policy
from March 1, 2006, through March 1, 2016.
The Respondent violated Section 8(a)(5) and (1) of the Act
when it unreasonably delayed, failed and refused to provide the
Union since July 7, 2016, with the information concerning new
hires.
The unfair labor practices set forth above affect commerce
within the meaning of the Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
The Respondent did not violate Section 8(a)(3) and (1) of the
Act when it suspended Richard Nazzaro for 3 days on about June
13, 2016.
The Respondent did not violate Section 8(a)(5) and (1) of the
Act when it on about April 2016, selected employees for layoffs
who were not the most junior employees.
The Respondent did not violate Section 8(d) of the Act when
it allegedly ceased to honor employee authorizations for dues de-
duction in and after May 2016.
The Respondent did not otherwise violate Section 8(a)(5), (3),
and (1) of the Act in the manner alleged in the complaint.
REMEDY
Having found that the Respondent Mondelez Global, LLC had
engaged in certain unfair labor practices, I shall order them to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent shall be required to rescind, on the Union Lo-
cal 719’s request, any or all of the unilateral changes to the unit
employees’ terms and conditions of employment made on or af-
ter March 15, 2016.
The Respondent Mondelez Global, LLC shall be required to
offer reinstatement to Claudio Gutierrez, Bruce Scherer, and
Nafis Vlashi for their discriminatory suspensions and discharges
and to make them whole for any loss of earnings and other ben-
efits suffered as a result of their unlawful discharges. Backpay
shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Medi-
cal Center, supra.
The Respondent will also be required to expunge from its files
and records any and all references to the unlawful suspensions
and discharges of Gutierrez, Scherer, and Vlashi and notify the
affected employees in writing that this has been done and that
the disciplines will not be used against them in any way.
18 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
The Respondent additionally shall be ordered to (1) compen-
sate Vlashi, Scherer, and Gutierrez for their suspensions and dis-
charges for their loss of wages caused by the unlawful discipline
and any adverse income tax consequences of receiving their
backpay in one lump sum and (2) file a report with the Social
Security Administration allocating the backpay to the appropri-
ate calendar quarters, as set forth in Don Chavas, LLC d/b/a Tor-
tillas Don Chavas, 361 NLRB 101 (2014). Consistent with the
Board holding in AdvoServ of New Jersey, 363 NLRB No. 143
(2016), the Respondent shall be required within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, to file its report allocating backpay with the Re-
gional Director and not with the Social Security Administration.
The Respondent will be required to allocate backpay to the ap-
propriate calendar years only.
I also shall order the Respondent to post the Board’s standard
Notice to Employees.
ORDER
On these findings of facts and conclusions of law and on the
entire record, I issue the following recommended18
The Respondent Mondelez Global, LLC shall
1. Cease and desist from
(a) Altering the unit employees’ terms and conditions of em-
ployment without first notifying Local 719 and bargaining to
agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
(b) Discriminatorily disciplining employees because of their
union activities or to discourage employees from engaging in un-
ion or other protected concerted activities.
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Make Claudio Gutierrez, Bruce Scherer, and Nafis Vlashi
whole for any loss of earnings and other benefits, including re-
imbursement for all search-for-work and interim-work expenses,
regardless of whether they received interim earnings in excess of
these expenses, suffered as a result of the unlawful discharges,
as set forth in the remedy section of this decision.
(b) Compensate Claudio Gutierrez, Bruce Scherer, and Nafis
Vlashi for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and to file with the Regional Director
for Region 22 within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar years.
(c) Immediately offer full reinstatement to Claudio Gutierrez,
Bruce Scherer, and Nafis Vlashi and if the offer is accepted, re-
instate Gutierrez, Scherer, and Vlashi to their former jobs or, if
the jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(d) Within 14 days from the date of the Board’s Order,
adopted by the Board and all objections to them shall be deemed waived
for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
remove from its files any reference to the unlawful suspensions
on about June 15, 2016, and discharges on about July 1, 2016, of
Gutierrez, Scherer, and Vlashi, and thereafter notify them in
writing that this has been done and that their suspensions and
discharges will not be used against them in any way.
(e) 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.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay. Absent
exceptions 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 due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its ex-
isting property at the Fair Lawn facility, New Jersey, a copy of
the attached notice marked “Appendix.”19 Copies of the notice,
on forms provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places where no-
tices to employees are customarily posted. In addition to physi-
cal posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the no-
tices 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 15, 2016.
(h) Mail a copy of said notice to Gutierrez, Scherer, and
Vlashi, at their last known addresses.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 22, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
(j) If Respondent has gone out of business or closed the facil-
ity involved in this proceeding, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
and former employees employed by the Respondent at its Fair
Lawn, New Jersey facility at any time since March 15, 2016.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
19 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
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT make any unilateral changes to the hours, or
terms and conditions of employment of the unit employees with-
out first notifying the Bakery, Confectionery, Tobacco Workers,
and Grain Millers International Union, Local 719 and giving it a
meaningful opportunity to bargain about such changes to agree-
ment or impasses regarding such changes in the hours and work-
ing conditions of the unit employees.
WE WILL NOT discriminatorily discipline you because of your
union activities or to discourage employees from engaging in un-
ion or other protected activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Claudio Gutierrez, Bruce Scherer, and Nafis Vlashi full re-
instatement to their former jobs or, if the jobs no longer exist, to
substantially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
WE WILL make Claudio Gutierrez, Bruce Scherer, and Nafis
Vlashi whole for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings, plus interest,
including any pay increases made to similarly situated employ-
ees from the date of their discharges to the present, and including
reimbursement for all search-for-work and interim-work ex-
penses, regardless of whether they received interim earnings in
excess of these expenses, or at all, during any given quarter, or
during the overall backpay period.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files all references to the unlawful suspensions
and discharges of Claudio Gutierrez, Bruce Scherer, and Nafis
Vlashi.
WE WILL, within 3 days thereafter, notify Claudio Gutierrez,
Bruce Scherer, and Nafis Vlashi in writing that this has been
done and that their suspensions and discharges will not be used
against them in any way.
WE WILL, upon request of the Union, rescind any or all of our
unlawfully imposed changes and restore the terms and condi-
tions of employment that existed prior to March 15, 2016.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
MONDELEZ GLOBAL, LLC 33
MONDELEZ GLOBAL, LLC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-174272 or by using the QR code be-
low. 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.