Goya Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 2011

356 N.L.R.B. 476 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
Goya Foods, Inc. and Dewys Taveras. Case 29–CA–
29945
January 5, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On June 15, 2010, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below, to modify his remedy,2 and to adopt his
recommended Order as modified and set forth in full
below.3
The issues in this case are (1) whether the Respondent
violated Section 8(a)(1) of the Act by directing employee
Dewys Taveras to leave a union meeting he was partici-
pating in and ordering him off the premises, and (2)
whether the Respondent violated Section 8(a)(3) and (1)
of the Act by suspending Taveras for defying these or-
ders. As explained below, we agree with the judge that
the Respondent committed both violations.
The Respondent operates a warehouse in Bethpage,
New York, where about 45 employees are represented by
Local 888, United Food and Commercial Workers Inter-
1 Although the judge did not make specific credibility findings, he
implicitly credited the testimony of employees Dewys Taveras and
Juan Vargas regarding Taveras’ comportment during the union meeting
at issue here. The Respondent has excepted to the judge’s failure to
find, based on the Respondent’s witnesses’ characterization of Taveras’
conduct, that Taveras was interrupting the meeting and, in doing so,
was “out of control.” The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. 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 any event, even the
witnesses on whom the Respondent relies did not describe Taveras as
“out of control.”
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s recommended remedy by
requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis. We also modify the remedy to
include an expunction remedy.
3 We shall modify the judge’s recommended Order to more closely
conform to the violations found and to the Board’s standard remedial
language, and to provide for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). We shall substitute a new no-
tice to conform to the modified order and to our decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004).
national Union. Taveras, a former member of the bar-
gaining unit and Local 888, had been promoted to a non-
unit position before the events in question took place.4
In late 2009, Local 888 was negotiating a new contract
with the Respondent as well as campaigning against a
decertification petition filed by employee Juan Vargas.
As a result, Local 888 was holding frequent meetings
with employees on the Respondent’s premises, consistent
with a visitation clause in the collective-bargaining
agreement.
On November 29, Taveras arrived at the warehouse
before his shift began and, as was customary for workers
arriving early, sat in the cafeteria with 12–15 coworkers.
Shortly thereafter, representatives from Local 888, led by
Ricky Guzman, entered the cafeteria to meet with unit
members to discuss the decertification petition. Vargas,
who was also in the cafeteria, became involved in an
argument with Guzman. Overhearing them, Taveras
raised his hand and asked if he could offer his opinion on
why some employees were dissatisfied with Local 888.
Guzman consented, and Taveras explained that he had
heard from other employees that they were frustrated
with some of Local 888’s bargaining positions, as well as
past failures to defend disciplined employees. When
Guzman disputed Taveras’ assertions, Taveras loudly
defended his position and gestured to other employees
for emphasis.
During Taveras’ exchange with Guzman, Night Ware-
house Supervisor Stanley Cucalon entered the cafeteria
to get coffee. Hearing the argument, he twice told
Taveras not to get involved because Taveras was not a
union member; Taveras twice responded that he was on
his own time and had a right to stay. At that point,
Night- Shift Manager Edwin Solorzano entered the cafe-
teria, the loud voices and Taveras’ gestures having
caught his attention. Solorzano called across the room to
Taveras and told him to leave the cafeteria. Taveras re-
fused. Solorzano then loudly repeated his instruction
that Taveras leave the area, to which Taveras loudly re-
plied, from 40 feet away, “Ven sacame” (a Spanish
phrase translated as “come and take me out”).5 Solorza-
no responded by directing Taveras to punch out and go
home. Taveras initially either sat down or said he would
sit down, but after a moment he complied with Solorza-
4 Although he was no longer a member of the bargaining unit after
his promotion, the Respondent does not contend that Taveras was a
supervisor within the meaning of Sec. 2(11) of the Act, or that Taveras
was not an employee within the meaning of Sec. 2(3) of the Act.
5 Taveras and a significant number of the Respondent’s other em-
ployees primarily or exclusively speak Spanish. Taveras, Vargas,
Cucalon, and Solorzano all testified at the hearing through an interpret-
er.
356 NLRB No. 73

GOYA FOODS, INC. 477
no’s order. Solorzano reported the incident to the ware-
house general manager, who recommended that Taveras
be discharged, but the Respondent’s director of human
resources instead suspended Taveras for 5 days.6
I. THE RESPONDENT’S ORDER TO LEAVE THE MEETING
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) by directing Taveras to leave the
meeting and ordering him off the premises. Taveras’
activity—participating in a union meeting at which he
discussed the benefits and drawbacks of union represen-
tation with his coworkers—was protected by Section 7 of
the Act. Furthermore, we are not persuaded by the Re-
spondent’s argument that the Respondent was justified in
ordering him to leave the meeting because his conduct
was disruptive and therefore lost the protection of the
Act.7 The record plainly establishes that Taveras had not
interrupted the meeting, but was participating with Union
Representative Guzman’s permission. Moreover, the
Respondent’s agents did not order Taveras not to shout,
not to interrupt, or in any other way not to disrupt the
meeting. Rather, they both ordered him not to participate
in the meeting.
Further, we agree with the judge that the Respondent’s
assertion that employers have a “prerogative” and “inde-
pendent right” to decide who can attend union meetings
held on the employer’s premises pursuant to a collective-
bargaining agreement’s visitation clause is without merit.
In Marco Polo Resort Motel, 257 NLRB 1293 (1981),
enfd. mem. 709 F.2d 715 (11th Cir. 1983), an employer
permitted a union to hold a meeting on the employer’s
premises. The employer later interrupted the meeting,
however, to order the nonunion bargaining unit employ-
ees in attendance to leave. In finding that the employer’s
actions violated Section 8(a)(1), the Board reasoned that
an employer’s decision to permit a union meeting on its
premises does not include the right “to police” the meet-
ing, absent a legitimate business justification. Id. at
1293.
Here, the sole justification offered by the Respondent
is that the collective-bargaining agreement’s visitation
clause obliged it to prevent interruptions of the Union’s
6 The judge incorrectly found that Cucalon instructed Taveras to stop
participating in the meeting only once and that Solorzano ordered
Taveras to leave the area twice. As set forth above, the record estab-
lishes that Cucalon gave Taveras two instructions, and that Solorzano
gave him at least three orders, the last being to punch out and go home.
For the reasons explained below, this factual error by the judge does
not affect our conclusion that Taveras did not lose the protection of the
Act.
7 For the reasons set forth in the judge’s decision, we find that the
Respondent’s attempt to rely on Eagle-Picher Industries, 331 NLRB
169 (2000), and Carrier Corp., 331 NLRB 126 (2000), as support for
the assertion that Taveras lost the protection of the Act is unavailing.
meetings. The fact that Taveras was participating in the
meeting with the Union’s permission completely under-
cuts this justification. Accordingly, we affirm the
judge’s findings that Taveras was protected by Section 7
while participating in the meeting and that the instruc-
tions to Taveras to stop participating in the meeting and
to leave the area violated Section 8(a)(1).
II. TAVERAS’ SUSPENSION
The judge found that the Respondent violated Section
8(a)(3) and (1) by suspending Taveras for his actions on
November 29. The judge found that, under Atlantic Steel
Co., 245 NLRB 814 (1979), Taveras’ conduct on No-
vember 29 was not so opprobrious as to warrant the loss
of the Act’s protection. We agree with the judge that
Atlantic Steel is the proper framework for analyzing this
violation and that, applying it, Taveras did not lose the
protection of the Act.8
Under Atlantic Steel, the Board considers four factors
to determine whether an employee’s conduct is so egre-
gious as to lose the Act’s protection: (1) the place of the
discussion; (2) the subject matter of the discussion; (3)
the nature of the employee’s conduct; and (4) whether
the conduct was provoked by the employer’s unfair labor
practices. Id. at 816.
A. The Place of the Discussion
The first factor, the place of the discussion, favors pro-
tection in the circumstances of this case. While Taveras’
intemperate “ven sacame” remark was overheard by
more than 10 other employees, and thus could conceiva-
bly affect workplace discipline, that consideration is
outweighed by the fact that Taveras’ conduct did not
occur in a work area or during worktime. See Datwyler
Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007)
(although employee’s brief outburst occurred in the pres-
ence of other employees, the location in a breakroom
favored protection because it would not disrupt the em-
ployer’s work process). Indeed, it took place at a loca-
tion and during a time period which the Respondent has
8 The Respondent argues that Taveras was disciplined, not for partic-
ipating in the union meeting, but for his “insubordination” towards
Cucalon and Solorzano in refusing to follow their instructions. We
reject this distinction. As we explained above, the initial orders
Taveras allegedly refused to obey were to cease engaging in protected
activity. It is well established that if an employee is disciplined “for
conduct that is part of the res gestae of protected concerted activities,
the relevant question is whether the conduct is so egregious as to take it
outside the protection of the Act.” Consumers Power Co., 282 NLRB
130, 132 (1986) (footnote omitted). Where, as here, the conduct at
issue arises from protected activity, the Board does not consider such
conduct as a separate and independent basis for discipline. See Tampa
Tribune, 351 NLRB 1324, 1326 fn. 14 (2007), enf. denied on other
grounds sub nom. Media General Operations, Inc. v. NLRB, 560 F.3d
181 (4th Cir. 2009).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
approved for union meetings, even meetings taking place
during the often contentious preelection period. Further,
as discussed below, the fact there was any incident at all
in the cafeteria is attributable to Cucalon’s and Solorza-
no’s unlawful decisions to confront Taveras and attempt
to eject him from the Union’s meeting. We thus con-
clude that the first factor favors protecting Taveras’ con-
duct.9
B. The Subject Matter of the Discussion
The second factor, the subject matter of the discussion,
strongly favors protection. At the meeting, Taveras was
criticizing the Union’s bargaining positions and tactics,
and thus was plainly engaged in protected conduct. See
Tampa Tribune, supra at 1326 (finding criticism of em-
ployer tactics and positions protected). Taveras’ subse-
quent exchanges with Cucalon and Solorzano consisted
almost entirely of Taveras defending his right to be pre-
sent and speak at the meeting. Because defending pro-
tected activity is itself protected, see Network Dynamics
Cabling, Inc., 351 NLRB 1423, 1429 (2007), and be-
cause asserting fundamental rights under the Act strongly
favors protection, see Stanford Hotel, 344 NLRB 558,
559 (2005), this factor weighs heavily in favor of protec-
tion.
C. The Nature of the Conduct
The third factor, the nature of the conduct, also favors
protection. Taveras’ course of conduct, culminating in
his remark to Solorzano, was entirely spontaneous and
free of profanity, considerations that favor protection.
See Noble Metal Processing, 346 NLRB 795, 800 (2006)
(affirming finding that lack of profanity favors protec-
tion); Trus Joist MacMillan, 341 NLRB 369, 370–371
(2004) (finding premeditated outburst disfavors protec-
tion). That Taveras was speaking loudly does not, by
itself, result in a loss of protection. See Postal Service,
251 NLRB 252, 258 (1980), enfd. 652 F.2d 409 (5th Cir.
1981). And even though the dispute went on longer than
the judge’s decision indicates (see fn. 6, above), it was
no longer and no more contentious than other exchanges
the Board has found remained protected. See, e.g.,
Datwyler Rubber & Plastics, Inc., supra at 669 (employ-
ee taunted general manager with a series of pointed ques-
tions and remarks in front of other employees); Noble
Metal, supra at 800–801 (affirming finding that employ-
9 Certainly, we do not suggest that breakrooms and other nonwork-
ing areas are safe harbors for unrestrained employee conduct. See, e.g.,
Alcoa Co. of America, 338 NLRB 20, 22 (2002) (although occurring in
a breakroom, employee’s “repeated, sustained, ad hominem profanity”
in reference to supervisors could be overheard by coworkers and would
reasonably undermine the authority of the supervisors subject to his
“vituperative attacks”).
ee’s defiance of repeated orders to sit down during 2-
minute period did not lose protection).
The Respondent’s main contentions, however, are that
Taveras’ conduct lost the Act’s protection because (1) it
was “insubordinate” and (2) the words “come and take
me out” constituted a challenge to Solorzano to engage
in a fight. We reject both contentions.
Although insubordinate conduct weighs against protec-
tion, the Board distinguishes between true insubordina-
tion and behavior that is only “disrespectful, rude, and
defiant.” Severance Tool Industries, 301 NLRB 1166,
1170 (1990), enfd. mem. 953 F.2d 1384 (6th Cir. 1992).
Taveras’ conduct falls into the latter category. Although
Taveras initially refused Cucalon’s instruction to not get
involved and Solorzano’s instruction to leave the meet-
ing and then to leave the cafeteria, in the end he com-
plied. The Board has previously found that similar con-
duct did not lose the protection of the Act. See Noble
Metal, supra at 798, 800–801.
Although we do not condone Taveras’ “come and take
me out” statement, called across the cafeteria in response
to Solorzano’s remarks, we agree with the judge that,
viewed in context, this statement was not a threat or chal-
lenge to fight. Threatening statements doubtlessly weigh
against protection, but the Board requires such state-
ments to be objectively threatening. See Plaza Auto
Center, Inc., 355 NLRB 507, 509–510 (2010) (alleged
threat unaccompanied by physical movement or aggres-
sion); Kiewit Power, 355 NLRB 722, 724 (2010) (pur-
ported threat must be unambiguous). In context, Taveras’
statement, “Come and take me out,” did not rise to that
level.10 Taveras was standing 40 feet from Solorzano,
and made no threatening gestures or movements. More-
over, Taveras accompanied the statement by sitting down
(or stating that he would), and moments later he com-
plied with Solorzano’s instruction to punch out and go
home. Cf. Plaza Auto, supra at slip op. 2 (no threat
where employee stood up and pushed a chair aside while
telling employer he would regret firing another employ-
ee).
As Taveras’ outburst was spontaneous, free of profani-
ty, no longer than other protected outbursts, did not con-
stitute a threat or physical challenge, and did not ulti-
mately result in a refusal to comply with the orders, the
nature of the outburst favors protection.
D. Provocation by the Respondent
The final factor, provocation by the employer’s unfair
labor practices, similarly favors protection. Taveras’
10 At the hearing, Solorzano himself indicated that the meaning of
“come and take me out” is context-dependent, thereby admitting its
ambiguity.

GOYA FOODS, INC. 479
remarks, and indeed the entire incident, were triggered
by Cucalon and Solorzano’s unlawful instructions that
Taveras stop participating in the meeting and leave the
area. Without this unfair labor practice, there would
have been no reply by Taveras or further interaction; as
such, this factor favors protection. See Stanford Hotel,
344 NLRB at 558.
In summary, all four Atlantic Steel factors weigh in fa-
vor of Taveras’ retaining the protection of Section 7.
Because Taveras’ activity remained protected, his sus-
pension violated Section 8(a)(3) and (1).
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Specifical-
ly, having found that the Respondent violated Section
8(a)(3) and (1) by discriminatorily suspending Dewys
Taveras, we shall order the Respondent to make him
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons for the Retarded, 283 NLRB
1187 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). The
Respondent shall also be required to remove from its
files all references to the unlawful suspension of Taveras
and notify him in writing in English and in Spanish that
this has been done and that the suspension will not be
used against him.
ORDER
The Respondent, Goya Foods, Inc., Bethpage, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Directing employees not to participate in union
meetings or ejecting employees from its premises for
attending union meetings.
(b) Suspending or otherwise discriminating against
employees for participating in union meetings.
(c) 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) Make Dewys Taveras whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful suspension, plus daily compound interest as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010), in the manner set forth in the amended remedy
section of the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension,
and, within 3 days thereafter, notify Taveras in writing in
English and in Spanish that this has been done and that
the suspension will not be used against him in any way.
(c) Within 14 days after service by the Region, post at
its Bethpage, New York facility copies of the attached
notice, in English and in Spanish, marked “Appendix.”11
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed 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. 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November
29, 2009.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
11 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing and Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
Act together with other employees for your ben-
efit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT direct our employees not to participate
in union meetings or eject them from our premises be-
cause they attend union meetings.
WE WILL NOT suspend employees because they partic-
ipate in union meetings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL make Dewys Taveras whole for any loss of
earnings and other benefits he has suffered as a result of
the discrimination against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Dewys Taveras, and WE WILL, within 3
days thereafter, notify him in writing in English and in
Spanish that this has been done and that the suspension
will not be used against him in any way.

GOYA FOODS, INC.

Ashok C. Bodke, Esq., for the General Counsel.
Michael R. Cooper, Esq. and Carlos G. Ortiz, Esq., 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 Un-
ion and (b) ejected him from its Bethpage facility because he
participated in that meeting.
2. That on or about December 11, 2009, the Respondent sus-
pended Taveras for 1 week because he participated in the above
described meeting.
On the entire record, including my observation of the de-
meanor 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 em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act (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 Interna-
tional Union. At the time of these events, its contract with that
union expired on October 31, 2009.
The Charging Party, Dewys Taveras, who used to be a mem-
ber of the bargaining unit, was no longer in the unit because of
a promotion he received to a nonbargaining unit position. Alt-
hough 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 warn-
ings 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 gener-
ally held in the Company’s cafeteria.
On November 2, 2009, an employee named Juan Vargas
filed a decertification petition in Case 29–RD–1138 seeking to
oust Local 888 as the bargaining representative. Thereafter, on
December 8, 2009, another union filed a petition in Case 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 bar-
gaining representative.
Taveras arrived at the facility on November 29, 2009, before
his starting time (6 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. Alt-
hough 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 ob-
jected 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 be-
tween 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 ges-
ticulating toward Guzman and speaking loudly, albeit he
GOYA FOODS, INC. 481
couldn’t hear what was said because the door was closed. Sal-
azano 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 be-
cause 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 consid-
ered 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 carried away by their emotions and that Taveras
should not be fired. Instead, Taveras was given a 5-day sus-
pension.
Analysis
Taveras was not in the bargaining unit and therefore was not
represented by the Union. Nevertheless, Taveras sought to ex-
press his opinion at a union meeting held on November 29,
2009, regarding a pending decertification petition that was be-
ing held in the Employer’s cafeteria pursuant to Company’s
approval. This meeting was held on nonworktime 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 nonmember,
to either leave or abstain from participating in the meeting, he
did not do so. Instead, the evidence indicates that Ricky Guz-
man 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, pursu-
ant to the collective-bargaining agreement’s visitation clause,
on the Company’s premises during nonworking time. I there-
fore conclude that the Respondent violated Section 8(a)(1) of
the Act by directing him to leave the union meeting and order-
ing 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 estab-
lished 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 dis-
cussion; (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 supervi-
sors 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 em-
ployees. They admit that they could not hear what was 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 in-
terrupted 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 func-
tion was to have them be an audience to the employer’s posi-
tion 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
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 threaten-
ing manner. At fn. 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 employ-
ees; Gersham’s insistence on discussing immediately a subject unrelat-
ed 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
In the present case, the evidence simply does not show that
Taveras, by his conduct during the November 29 union meet-
ing, 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 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 876 at fn. 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.
CONCLUSION 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) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
In view of the above, I shall recommend that the Respond-
ent, 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 Re-
tarded, 283 NLRB 1173 (2987).
[Recommended Order omitted from publication.]