Goya Foods, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 15, 2010

29-CA-029945 (N.L.R.B. Jun. 15, 2010)

JD(NY)–19–10
Bethpage, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GOYA FOODS, INC.
and Case No. 29-CA-29945
DEWYS TAVERAS, An Individual
Ashok C. Bodke, Esq., Counsel for the
General Counsel
Michael R. Cooper, Esq., and Carlos G.
Ortiz, Esq., Counsels for the Respondent
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York
on April 27, 2010. The charge and the amended charge were filed on December 7, 2009 and
January 27, 2010. The Complaint that was issued on February 23, 2010 alleged as follows:
1. That on or about November 29, 2009, the Respondent (a) directed Taveras to cease
participating in a meeting of Local 888, United Food and Commercial Workers International
Union and (b) ejected him from its Bethpage facility because he participated in that meeting.
2. That on or about December 11, 2009, the Respondent suspended Taveras for one
week because he participated in the above described meeting.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
FINDINGS AND CONCLUSIONS
I. Jurisdiction
The parties agree and I find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act. It also is agreed and I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
The Employer is engaged in the manufacture of foods and it operates a warehouse
facility in Bethpage, New York. This facility has two shifts and the employees have been
represented by Local 888, United Food and Commercial Workers International Union. At the
time of these events, its contract with that union expired on October 31, 2009.
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The Charging Party, Dewys Taveras, who used to be a member of the bargaining unit,
was no longer in the unit because of a promotion he received to a non-bargaining unit position.
Although classified by the employer as a Night Shift Assistant Foreman, the Employer does not
contend that Taveras was a supervisor as defined by Section 2(11) of the Act. During the
course of his employment, Taveras had accumulated 10 warnings from February 6, 2004 to
September 20, 2008. The last indicated that it was a final warning and that similar violations
could lead to disciplinary action up to termination.
The contract described above has a visitation clause which permits union
representatives, on notice to the employer, to visit the facility and talk to employees. The
bargaining unit consists of about 45 warehouse employees. Meetings are generally held in the
Company’s cafeteria.
On November 2, 2009, an employee named Juan Vargas filed a decertification petition
in Case No. 29-RD-1138 seeking to oust Local 888 as the bargaining representative.
Thereafter, on December 8, 2009, another union filed a petition in Case No. 29-RC-11863,
seeking to represent the employees. (At that point the decertification petition was withdrawn).
In any event, by late November 2009, there was a good deal of discussion about this situation
within the shop and Local 888 was visiting the shop on a daily basis to promote its candidacy to
be the bargaining representative.
Taveras arrived at the facility on November 29, 2009 before his starting time, (6:00 p.m.)
and went to the cafeteria. At some point union representatives including Ricky Guzman, came
into the cafeteria to talk to and hand out leaflets to the warehouse workers who were sitting
around at the various tables. There then ensued an argument between Guzman and Juan
Vargas, (the person who filed the decertification petition) about the value of Local 888’s
representation. At this point, Taveras raised his hand and asked if he could give his opinion.
Although the shop steward, Hemildo Bonilla, opined that Taveras should not talk because he
was not in the bargaining unit, Guzman said that he could. Taveras then proceeded to tell
Guzman why some employees were upset with Local 888 and he seems to have made his point
with enthusiasm and hand gesturing. In any event, there is no evidence that Guzman objected
to Taveras’ actions or statements or that he asked Taveras to leave the meeting.
During this transaction, foreman Stanley Cucalon entered the cafeteria to get some
coffee. He noticed the interaction between Guzman and Taveras and told Taveras that he
should not get involved because he did not belong in the Union. Taveras said that he was on his
own time and that he had every right to stay.
Shortly thereafter, Edwin Salazano, the Night Shift Manager walked by the cafeteria and
testified that he saw Taveras gesticulating toward Guzman and speaking loudly, albeit he
couldn’t hear what was said because the door was closed. Salazano testified that he entered
the room and because he was fairly far away from the others, he called out to Taveras that he
should leave the cafeteria. Taveras refused and when Salazano again told him to go outside
Taveras replied: “come and take me out.” Both Salazano and Taveras were talking loudly
because they were about 40 feet away from each other.
This transaction was reported to John Quinones, the General Manager and after
investigating the matter, he recommended to the Company’s Human Resources Department
that Taveras be fired because of his actions in the cafeteria, which he considered to constitute
insubordination and because of Taveras’ past disciplinary record. Notwithstanding this
recommendation, Tony Rico, the Director for Human Resources decided that the people got
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carried away by their emotions and that Taveras should not be fired. Instead, Taveras was
given a five day suspension.
Analysis
Taveras was not in the bargaining unit and therefore was not represented by the Union.
Nevertheless, Taveras sought to express his opinion at a union meeting held on November 29,
2009 regarding a pending decertification petition that was being held in the Employer’s cafeteria
pursuant to company’s approval. This meeting was held on non work time and Taveras
happened to be in the cafeteria before his shift was to start. Although the union representative
addressing this meeting might have had his own reason to ask Taveras, a non-member, to
either leave or abstain from participating in the meeting, he did not do so. Instead, the evidence
indicates that Ricky Guzman specifically agreed to listen to Taveras’ comments and opinions
regarding why some employees were dissatisfied with their union representation. In any event,
Guzman did not ask Taveras to leave and did not ask anyone from the Company to direct
Guzman to leave. In my opinion, it was not within the Company’s prerogative to decide who
could or could not attend a union meeting that was legitimately being conducted, pursuant to the
collective bargaining agreement’s visitation clause, on the Company’s premises during non-
working time. I therefore conclude that the Respondent violated Section 8(a)(1) of the Act by
directing him to leave the union meeting and ordering him off the premises.
Because Taveras was participating in a union meeting and was involved in discussing,
with other employees, the merits or demerits of union representation, it is my opinion that he
was engaged in union and concerted activity as defined in Section 7 of the Act. The fact that he
was not in the bargaining unit, has no relevance.
In my opinion, since Taveras was engaging in union and concerted activity when he was
expressing his opinion at a union meeting, the Employer had no independent right to order him
to leave the Union’s meeting unless it can demonstrate that his conduct was sufficiently
egregious to remove his actions from the protection of Section 7 of the Act.
In Atlantic Steel, 245 NLRB 814 (1979), the Board established standards by which to
decide whether concerted activity would be protected or unprotected, depending on the manner
and means by which the conduct was carried out. The Board required the balancing of four
factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of
the employee's outburst; and (4) whether the outburst was provoked by an Employer's unfair
labor practice.
In substance, the Respondent’s evidence is that two supervisors who passed by the
cafeteria and who saw parts of the meeting, noticed Taveras speaking in an excited manner to
union representative Guzman in the presence of other employees. They admit that they could
not hear what was he said and that they were not asked by Guzman to have Taveras removed
from the meeting. When Salazano told Taveras to go outside Taveras replied: “come and take
me out.” At that time, both Salazano and Taveras were talking fairly loudly because they were
about 40 feet away from each other. To the extent that the Respondent claims that this
statement by Taveras should be construed as a challenge to fight, I think that this is a stretch
and I do not agree with that conclusion based on the words used or the context of the event.
In my opinion the Respondent’s reliance on cases such as Eagle-Picher Industries, 331
NLRB 169, (2000) and Carrier Corp., 331 NLRB 126 (2000), is inapposite. In Eagle-Picher, the
Employer held a series of captive audience speeches before an election and asked that all
questions be held to the end. Notwithstanding that instruction, an employee continually
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interrupted the employer’s presentation and refused to sit down and be quiet. When the
speaker continued, the employee opined, in effect, that the presentation was “garbage.”
Although the Respondent asserts that the factual situation in Eagle-Pitcher is analytically
identical to the facts in the present case, I do not agree. In Eagle-Picher, the employees were
not really engaged in concerted activity when they were compelled to attend a meeting and
listen to the employer’s speech as to why they would be better off without union representation.
The function of that meeting was not to have employees engage in concerted activity for their
mutual aid and protection; the function was to have them be an audience to the employer’s
position on union representation. In Eagle-Picher one can say that since an employer, during an
election campaign, has a right under Section 8(c) of the Act to express his opinion about union
representation, he also has the right to discipline employees who actively, aggressively and by
their conduct preclude or significantly interfere with that right. 1
In the present case, the evidence simply does not show that Taveras, by his conduct
during the November 29 union meeting, was engaged in conduct that interfered with the Union’s
right to present its opinion about union representation to the assembled employees. Union
representative Guzman did not object to Taveras’ presence or conduct. And at no time did union
representatives assert or indicate that Taveras should have left the meeting or otherwise have
ceased his conduct during the meeting.
In my opinion, Taveras’ conduct during the November 29 meeting did not, under the
criteria of Atlantic Steel, lose the protection of Section 7 of the Act. See Media General
Operations, Inc. d/b/a The Tampa Tribune; 351 NLRB 1324, 1335-1326 (2007); Noble Metal
Processing, Inc. 346 NLRB 795 (2006); Aluminum Co. of America, 338 NLRB 21 (2002). Cf.
Starbucks Corp., 354 NLRB No. 99 at footnote 5 (2009). In my opinion, his conduct was
protected and therefore the Employer’s decision to suspend him for that conduct violated
Section 8(a)(1) and (3) of the Act.
Conclusions of Law
By suspending Dewys Taveras because he participated in a meeting with Local 888,
United Food and Commercial Workers International Union, the Respondent has violated Section
8(a) (1) & (3) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

1 In my opinion, Carrier is factually distinguishable as well. In that case, the alleged discriminatee,
along with another employee essentially barged into a business meeting being conducted by a manager
and insisted on raising a completely separate issue than what was being discussed in the meeting. The
Manager asked the two employees to leave and one left to return to work while the alleged discriminatee
stayed on to argue his point in what the ALJ concluded was a threatening manner. At footnote 1, the
Board stated: “we find it unnecessary to rely on the judge’s finding that Gresham’s conduct on April 3,
1996 was not concerted activity. Instead we rely solely on the judge’s findings that the Respondent
lawfully disciplined Gresham based on his interruption of a meeting conducted by Manager Kathy Holen
with other employees; Gersham’s insistence on discussing immediately a subject unrelated to the
meeting and his failure and refusal to acquiesce in Holen’s repeated directions to him that his concerns
could be discussed later that day at a more appropriate time.”
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In view of the above, I shall recommend that the Respondent, having discriminatorily
suspended an employee, it must make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from the dates of discharge to the date of a proper offer of
reinstatement, less any net interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(2987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 2
ORDER
The Respondent, Goya Foods, Inc., its officers, agents, and representatives, shall
1. Cease and Desist from
(a) Directing employees not to participate in union meetings or ejecting them from its
premises because they attend union meetings.
(b) Suspending employees because they participate in union meetings.
(c) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make whole, with interest in the manner described in the Remedy Section of this
Decision, Dewys Taveras for any loss of income he may have suffered by reason of his
discriminatory suspension.
(b) Within 14 days after service by the Region, post at its facilities in Bethpage, New
York, copies of the attached notice marked “Appendix ” 3 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, or sold the business or the facilities involved
herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondents at any time since
November 29, 2009.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
3 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., June 15, 2010.
_____________________
Raymond P. Green
Administrative Law Judge
JD)NY)–19–10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT direct our employees not to participate in union meetings or eject them from our premises
because they attend union meetings.
WE WILL NOT suspend employees because they participate in union meetings.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole, with interest, Dewys Taveras for any loss of earnings that he may have suffered
as a result of the discrimination against him.
Goya Foods, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.