Goya Foods of Florida

National Labor Relations Board - Board Decisions

Aug 30, 2006

347 N.L.R.B. 1118 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 103
1118
Goya Foods of Florida and UNITE HERE, CLC.1
Cases 12–CA–19668, 12–CA–19765, 12–CA–
19779–1, 12–CA–19945, 12–CA–19962, 12–CA–
20041, 12–CA–20099–1, 12–CA–20127, 12–CA–
20233–1, 12–CA–20233–2, 12–CA–20256, 12–
CA–20426, 12–CA–20496, 12–CA–20542, and
12–CA–20570
August 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 22, 2001, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions, a supporting brief, an an-
swering brief, and reply briefs; the General Counsel filed
an answering brief; and the Charging Party filed cross
exceptions, a supporting brief, an answering brief, and a
reply 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 record in
light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings,3 findings,4 and conclusions as

1 We have amended the caption to reflect the merger of the Union of
Needletrades, Industrial and Textile Employees, AFL–CIO, CLC
(UNITE!) with the Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO, CLC (HERE), effective July 8, 2004, and
the disaffiliation of UNITE HERE from the AFL–CIO effective Sep-
tember 14, 2005.
2 The Respondent failed to except with the specificity required under
NLRB Rules and Regulations Sec. 102.46(b)(1) to certain of the
judge’s findings of 8(a)(1) violations regarding threats of plant closure,
threats of discharge, solicitation of grievances and the promise to rem-
edy them, futility threats, and interrogation. Rather, the Respondent
excepts generally to the judge’s conclusions of law that reference “in-
terrogating, soliciting grievances, and threatening employees,” with no
supporting arguments. In the absence of appropriate exceptions, we
affirm the judge’s findings and conclusions concerning those violations
of Sec. 8(a)(1). See, e.g., Valentine Painting & Wallcovering, Inc., 331
NLRB 883 fn. 2 (2000), enfd. 8 Fed. Appx. 116 (2d Cir. 2001).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions in this regard
are without merit.
4 The judge found that the Respondent violated Sec. 8(a)(1) by its
July 9, 1999 letter to its salesmen indicating that employee Reinaldo
Bravo’s purported tampering with the Respondent’s barbeque-”mojo”
sauce in a Winn-Dixie store had placed the employees’ jobs in jeopardy
and by Goya Foods of Puerto Rico President and major shareholder
modified and to adopt the recommended Order as
modified and as set forth in full below.5
A. Background
As set forth more fully by the judge, this proceeding
involves alleged unfair labor practices occurring dur-
ing 1998 and 1999. The Respondent is a large whole-
saler of Hispanic food products at its facility in Miami,
Florida. The Union was certified as the collective-
bargaining representative of a unit of warehouse em-
ployees and drivers (warehouse unit) on October 26,
1998, and a unit of sales and merchandising employees
(sales unit) on December 4, 1998. The complaint al-
leged that the Respondent committed numerous viola-
tions of Section 8(a)(1), (3), and (5). The violations
allegedly took place during the course of the Union’s
organizing campaign and during the parties’ subse-
quent negotiations for a first contract.

Frank Unanue’s statement to salesmen in early November 1999 that,
if Goya employees continued with the union rallies and activities at
Winn-Dixie supermarkets, the Respondent could lose the account
and “employees could suffer because they would lose their jobs.”
The Respondent argues that the letter and statement merely reflected
the Respondent’s opinion and, regardless, were true at the time they
were made. We find it unnecessary to pass on whether the letter and
statement violated Sec. 8(a)(1) as they are cumulative of other simi-
lar violations found and therefore do not affect the Order or notice.
Accordingly, the Charging Party’s exception that Frank Unanue’s
statement, found to have been made in November, actually occurred
in September, is moot.
The Charging Party also excepts to the judge’s failure to find an
8(a)(1) violation based on Frank Unanue’s alleged statement in
September 1999 that if employees kept “fooling around by protest-
ing at Winn-Dixie Supermarkets . . . Winn-Dixie was going to re-
move Goya salesmen from their stores and Goya was going to have
to terminate a lot of salespeople . . . and not specifically, just the
salesmen who service the Winn-Dixie Stores.” We likewise find any
such violation to be cumulative.
The Charging Party further contends that the judge erred in failing
to find a violation of Sec. 8(a)(1) based on Frank Unanue’s alleged
statement to salesmen that “we have to make sure to give the best
quality of service to Winn-Dixie because they were not sure whether
they were going to continue distributing their product or not.” The
General Counsel neither alleged in the complaint that this statement
violated the Act nor excepted to the judge’s failure to find the viola-
tion. Accordingly, we find no merit in the Charging Party’s excep-
tion.
We also find it unnecessary to pass on the judge’s finding that the
Respondent violated Sec. 8(a)(3) by its refusal to permit employee
Reinaldo Mendoza to leave the facility for his wife’s emergency and
its written warning to him. The 8(a)(5) remedial relief for Respon-
dent’s unilateral change in its emergency leave policy renders the
violation cumulative.
5 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144
(1996), as modified in Excel Container, 325 NLRB 17 (1997). We
shall also modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001), and the notice to conform to Ishikawa Gasket America, Inc.,
337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
GOYA FOODS OF FLORIDA 1119
B. The 8(a)(3) Allegation Discharging
Employees Turienzo, Galvez, and Martin
The judge found, and we agree for the reasons set forth
in his decision, that the Respondent discharged ware-
house employees and union activists Alberto Turienzo,
Humberto Galvez, and Jesus Martin in violation of Sec-
tion 8(a)(3) and (1) of the Act because they participated
in a union rally at Winn-Dixie Supermarket 235 on June
30, 1999.6
The Respondent argues that it discharged Turienzo,
Galvez, and Martin because of misconduct inside the
Winn-Dixie store during the rally. As fully discussed by
the judge, union officials and the three alleged discrimi-
natees entered the Winn-Dixie store to present a letter to
the store manager soliciting Winn-Dixie’s support for the
Union’s campaign at Goya. The judge rejected the Re-
spondent’s contention that the three employees engaged
in misconduct that rendered their activities unprotected.7
The Respondent submits, among other things, that the
judge erred by failing to draw an adverse inference from
the Charging Party’s failure to produce a videotape of the
rally and its delay in producing a second videotape, both
of which recorded the events inside the supermarket.
With regard to the first tape, counsel for the Charging
Party represented at the hearing that it could not be lo-
cated and that he had been informed by the videographer
that the tape may have been taped over. There is no basis
on the record to conclude that the Charging Party was
responsible for the loss or for taping over the tape.
Therefore, no adverse inference was warranted as to this
videotape.
The second tape was admitted into evidence and all
parties had a full opportunity to make their arguments
regarding the tape and its contents. The Respondent had
6 days in which to prepare and present testimony based
on this tape and failed to do so. The judge reviewed this
tape, considered it with other credited evidence, and con-
cluded that the record evidence substantially supported
the General Counsel’s and the Charging Party’s version
of events at the Winn-Dixie supermarket.8 Under these

6 Winn-Dixie, a supermarket chain, was a major customer of the Re-
spondent.
7 Chairman Battista and Member Liebman note that the Respondent
also contends that whether or not Turienzo, Galvez, and Martin en-
gaged in serious misconduct, it had a good-faith belief that they did,
and that this belief justified their discharges. They reject that argument.
Even assuming that the Respondent harbored such a belief, they agree
with the judge that the employees did not engage in serious misconduct
while participating in protected activities. Accordingly, their dis-
charges were unlawful, regardless of the Respondent’s motive.
8 Member Schaumber concurs with his colleagues’ finding that Re-
spondent violated Sec. 8(a)(3) and (1) by discharging employees Turi-
enzo, Galvez, and Martin because of their alleged participation in the
June 20, 1999 rally at a Winn-Dixie store. Though the videotape dem-
circumstances, we agree with the judge that no adverse
inference was warranted.
C. The 8(a)(3) Allegation Regarding
Employee Bravo
The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) by suspending and
subsequently underemploying salesman Reinaldo
Bravo because of his actions in support of the Union’s
health and safety issues with the Respondent. In par-
ticular, as set forth fully by the judge, on July 2, 1999,
Bravo notified the Union of a rodent infestation that he
discovered that day in a box of Respondent’s barbeque
sauce—“mojo sauce”—when he was stocking the
shelves at Winn-Dixie Supermarket 366. Winn-Dixie
subsequently banned Bravo from its supermarkets, and
the Respondent thereafter suspended him. And, when
Bravo lost two other accounts in September and Octo-
ber 1999, the Respondent failed to assign him any new
stores to service, causing him to lose a significant por-
tion of his income.
The Respondent contends that the allegations re-
specting Bravo should be dismissed because, among
other things, it took no action against Bravo. Rather,
according to the Respondent, its customers took action
by insisting that Bravo not service their stores. In sup-
port of its exceptions, the Respondent moved that the
judge admit into evidence a deposition of Winn-Dixie
Grocery Merchandiser Paul Picard. The judge denied
the Respondent’s motion because the Respondent had
failed to seek enforcement of its subpoena to have
Picard testify. We adopt the judge’s ruling, and note
the following additional reasons for denying the Re-
spondent’s request. Picard’s deposition was taken
pursuant to a separate State court action to which the
General Counsel was not a party and thus had no op-
portunity for cross-examination.9 The Respondent did

onstrates that the rally became highly disruptive after a number of
participants entered the customer’s store, all three of the discharged
employees testified that they were asked to accompany representa-
tives of the Union into the store to present a letter to the store’s
management, nothing more. The Respondent presented no evidence
that the three employees actively participated in the boisterous
shouting reflected on the tape, or the shoving testified to by one
witness, or that the employees knew or reasonably should have
known that such a disturbance was going to occur. This was a single
incident and the disruption lasted just under 1 minute before the
police intervened. Under the circumstances, Member Schaumber
finds that the Respondent failed to show that the employees’ partici-
pation in the rally warranted a loss of the Act’s protection.
9 According to the Respondent, counsel for the Charging Party
served as Bravo’s counsel in the State court action and had an oppor-
tunity to cross-examine Picard. However, the General Counsel is the
prosecutor of this case. As such, he is entitled to cross-examine the
Respondent’s witnesses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
not apply to the judge to permit deposing Picard with all
parties to this proceeding present. The Respondent could
have done so, pursuant to the Board’s Rules and Regula-
tions Section 102.30. In addition, we find that the Re-
spondent has failed to demonstrate how Picard’s deposi-
tion testimony—if admitted into evidence and credited—
would materially impact the findings and conclusions in
this case. Accordingly, we find that the judge did not
abuse his discretion in refusing to admit Picard’s deposi-
tion into evidence.
Finally, although the judge found that the Respon-
dent’s suspension and underemployment of Bravo were
unlawful, he declined to draw the inference that the Re-
spondent unlawfully induced Winn-Dixie to ban Bravo
from its supermarkets. The Charging Party excepts, and
argues that the evidence demonstrates that the Respon-
dent caused Winn-Dixie to ban Bravo from its stores.10
We disagree. We find insufficient record evidence to
support the Charging Party’s contention. In this regard,
former Goya Foods of Florida President Mary Ann Una-
nue was the only witness to testify about a July 6 meet-
ing between representatives of Goya and Winn-Dixie
regarding the latter’s concerns over the rodent problem.
Mary Ann Unanue testified that at that meeting she nei-
ther informed Winn-Dixie District Manager Paul Picard
that she believed that Bravo had planted the rodents nor
discussed with him the reasons for Bravo’s ban. Finally,
Mary Ann Unanue testified that she did not inquire then,
nor did she subsequently learn, the reason for Winn-
Dixie’s decision. Thus, we find no merit in the Charging
Party’s exception.
D. The 8(a)(5) Allegation Change in Drivers’
Routes and Salesmen’s Stores
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally reassigning drivers’ routes
on at least five occasions, assigning between 10 and 50
new stores to salesmen, and reassigning existing stores11
without affording notice to the Union and an opportunity
to bargain. The judge found that, as the salesmen were
compensated entirely through commission, these matters
vitally impacted their earnings. He concluded that the
assignment of routes and stores was a mandatory subject
of bargaining, that the Respondent was obligated to bar-
gain to impasse before implementing changes, and that

10 The General Counsel did not specifically allege in the complaint
that the Respondent violated the Act in this respect and he does not
except to the judge’s failure to make a finding.
11 A reassigned store is a store that the Respondent transfers from
one salesman to another for servicing. There are a variety of reasons
for reassigning a store, e.g., the retirement of a salesman, or the Re-
spondent’s need, when a customer opens a new store, to redistribute
stores among its sales force.
the Respondent erroneously relied on past practice in
justifying its unilateral acts. Finally, the judge con-
cluded Respondent had no exigent business reason
excusing its failure to notify or bargain with the Union
concerning the assignments.
The Respondent contends that it had no obligation to
bargain with the Union concerning these changes be-
cause it was maintaining its past practice. Also, ac-
cording to the Respondent, the frequency with which it
needed to make changes provided an exigent business
justification for its unilateral action. Finally, the Re-
spondent seeks to justify its conduct by suggesting that
the unit lost no work as a result of its changes. We
find no merit in these arguments.
As an initial matter, we find that the Respondent has
failed to show a past practice that would justify mak-
ing such changes without bargaining. Rather, the Re-
spondent claimed, and it told the Union, that it would
not bargain about these matters because “historically,
all aspects of the selection; assignment and reassign-
ment of routes have been within the sole discretion of
Goya.” Thus, the Respondent relied upon an asserted
historic right to act unilaterally, as distinct from an
established past practice of doing so. In our view, that
right to exercise sole discretion changed once the Un-
ion became the certified representative. Accordingly,
the Respondent no longer has a privilege to make these
unilateral changes.
Further, we find that the Respondent failed to estab-
lish an economic exigency that would excuse it from
bargaining. Assuming arguendo that it needed to act
expeditiously on route and store assignments, it was
nonetheless obligated to give adequate notice to the
Union and offer an opportunity to bargain. See RBE
Electronics of S. D., 320 NLRB 80, 81–82 (1995).
Finally, even if the Respondent’s contention that the
unit did not lose work is correct, there is no require-
ment that the bargaining unit be adversely affected in
order for there to be a violation of Section 8(a)(5). See
Exxon Research & Engineering Co., 317 NLRB 675
fn. 2 (1995), enf. denied on other grounds 89 F.3d 228
(5th Cir. 1996)(no requirement that the unit must lose
something). In particular, the General Counsel need
not show that there was a reduction in the amount of
work performed by unit members in order to establish
a violation. University of Pittsburgh Medical Center,
325 NLRB 443, 447 (1998), enfd. mem. 182 F.3d 904
(3d Cir. 1999). In any event, with respect to the ware-
house unit, unit employees did lose work. Thus, on at
GOYA FOODS OF FLORIDA 1121
least one occasion, the Respondent assigned a driver’s
route to a temporary employee.12
E. Withdrawal of Recognition
The judge found that the Respondent’s withdrawal of
recognition from the Union in both units in December
1999 violated Section 8(a)(5) and (1) of the Act. The
judge found that the disaffection petitions were the result
of a lengthy course of unfair labor practices that resulted
in the Union’s loss of employee support. Further, the
judge found that the disaffection petitions were tainted
by management involvement in their circulation. Fi-
nally, the judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by withdrawing recognition as to the
sales unit based on an employee petition circulated dur-
ing the certification year.
The Respondent contends that it lawfully withdrew
recognition from the Union based on a loss of majority
support, and that, assuming arguendo that it committed
unfair labor practices, the unlawful conduct did not taint
the petitions, as that conduct was not causally connected
to the employees’ disaffection.
An employer may not avoid its duty to bargain if its
own unfair labor practices caused the union’s loss of
majority support. See, e.g., NLRB v. Williams Enter-
prises, 50 F.3d 1280, 1288 (4th Cir. 1995). We affirm the
judge’s finding that the Respondent’s unfair labor prac-
tices tainted the disaffection petitions. Therefore, the
Respondent’s withdrawals of recognition in both units
violated Section 8(a)(5) and (1) of the Act. We apply
Lee Lumber & Building Material Corp., 322 NLRB 175
(1996)(Lee Lumber II), enfd. in relevant part and re-
manded in part 117 F.3d 1454 (D.C. Cir. 1997). In Lee
Lumber II, the Board noted that “in cases involving un-
fair labor practices other than a general refusal to recog-
nize and bargain, there must be specific proof of a causal
relationship between the unfair labor practice and the
ensuing events indicating a loss of support.” 322 NLRB
at 177. Compare, e.g., Lexus of Concord, Inc., 343
NLRB 851 (2004) (causal connection not established);
LTD Ceramics, 341 NLRB 86 (2004) (causal connection
not established), and AT Systems West, Inc., 341 NLRB

12 In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) by its increased use of temporary drivers, we find the violation
based on the Respondent’s increased assignment of unit work to tempo-
rary employees regularly used as drivers. In at least one instance, the
Respondent assigned a unit driver’s vacated route to a temporary driver
rather than to a unit driver.
We affirm the judge’s order that the Respondent make the unit em-
ployees whole for any losses resulting from the unlawful unilateral
changes. Contrary to the judge, however, make-whole relief for those
violations shall be awarded in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
rather than in F. W. Woolworth Co., 90 NLRB 289 (1950).
57, 60–61 (2004) (causal connection established). As
set forth below, we find that the General Counsel has
clearly established the requisite causal connection.
In Master Slack Corp., 271 NLRB 78 (1984), the
Board set forth a four-part test to determine whether a
causal relationship exists between the unfair labor
practices and employee disaffection, thereby tainting
or precluding a lawful withdrawal of recognition:
(1) [t]he length of time between the unfair labor prac-
tice and the withdrawal of recognition; (2) the nature
of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any
possible tendency to cause employee disaffection
from the union; and (4) the effect of the unlawful
conduct on employee morale, organizational activi-
ties, and membership in the union. [Id. at 84.]
Proximity in time. The Respondent unlawfully dis-
charged three employees in the warehouse unit on July
7, 1999. In addition, in early July, as discussed above,
the Respondent unlawfully suspended and began to
underemploy Reinaldo Bravo, a sales unit employee.
In late August, employees in the sales unit began circu-
lating a disaffection petition, just over 1 month after
the Respondent’s substantial 8(a)(3) violations. The
warehouse unit disaffection petition began circulating
in early December—shortly before December 15, the
date the Respondent received the petition. Throughout
the year and concurrent with the circulation of both
disaffection petitions, the Respondent unilaterally and
unlawfully assigned and reassigned salesmen’s stores
and changed drivers’ routes. The Respondent contin-
ued throughout the year to refuse to recognize and deal
with union-designated employee representatives. In-
deed, the Respondent’s widespread and unrelenting
pattern of unlawful conduct continued from the begin-
ning until the end of the certification year. Thus, we
find that the Respondent’s unfair labor practices had a
strong temporal nexus with both employee petitions.
Nature of the unfair labor practices, possibility of a
detrimental or lasting effect on employees, and ten-
dency to cause disaffection from the Union. The Re-
spondent’s discharge of three active union adherents
and its suspension and underemployment of a fourth
were hallmark violations that were highly coercive and
likely to remain in the memories of employees for a
long time. See generally NLRB v. Jamaica Towing,
632 F.2d 208, 212–213 (2d Cir. 1980) (the court con-
cluded that an employer’s discharge of an active union
adherent would likely “have a lasting inhibitive effect
on a substantial percentage of the work force” and re-
main in employees’ memories for a long period). Fur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1122
ther, in this exact context of an employer’s withdrawal of
recognition, the Board has stated:
[i]t is well settled that the discharge of an active union
supporter is exceptionally coercive and not likely to be
forgotten . . . and reinforces the employees’ fear that
they will lose employment if they persist in union activ-
ity.
Penn Tank Lines, 336 NLRB 1066, 1068 (2001) (footnote
and citations omitted).
Further, the Respondent’s unilateral changes in driv-
ers’ routes, salesmen’s store assignments, radio phone
policy, and emergency leave policy; its increased use of
temporary drivers; and its refusal to recognize union-
designated representatives are also the types of violations
likely to have a lasting and negative impact on employ-
ees’ support for the Union. Bridgestone/Firestone, Inc.,
332 NLRB 575 (2000), affd. in relevant part sub nom.
mem. Teamsters Local 481 v. NLRB, 47 Fed. Appx. 449
(9th Cir. 2002) (direct dealing and bypassing bargaining
representative tend to have a lasting effect on employ-
ees); NLRB v. Vincent Industrial Plastics, 209 F.3d 727,
733 (D.C. Cir. 2000) (unilateral implementation of
changes in working conditions has the tendency to un-
dermine confidence in the employees’ chosen collective-
bargaining agent). The Respondent’s unilateral
changes—particularly those regarding route and store
assignments and the increased use of temporary employ-
ees—involved the important “bread and butter” issues
that lead employees to seek union representation. As
previously noted, the judge found that these matters vi-
tally impacted employee earnings. The Board stated in
Broadway Volkswagen, 342 NLRB 1244, 1247 (2004):
“[s]uch [unilateral] changes, particularly where the Un-
ion is bargaining for its first contract, can have a lasting
effect on employees.” Further, as the Board found in
Penn Tank Lines, supra, 336 NLRB at 1067: “[w]here
unlawful employer conduct shows employees that their
union is irrelevant in preserving or increasing their
wages, the possibility of a detrimental or long lasting
effect on employee support for the union is clear.” The
Respondent’s substantial and widespread violations
would reasonably lead employees to conclude the Union
could not protect or help them and would reasonably
tend to coerce employees into abandoning support for the
Union.
The effect of the unlawful conduct on employees’ mo-
rale, organizational activities, and membership in the
union. The evidence demonstrates that Respondent’s
unfair labor practices resulted in the Union’s loss of sup-
port. Employees from both the sales unit and the ware-
house unit testified they had knowledge of the Respon-
dent’s widespread unlawful actions. With respect to
the sales unit, salesmen testified that they were aware
of salesman Bravo’s situation and that it was well
known and much discussed. In this regard, in com-
pany sales meetings beginning in August 1999 with
Frank Unanue, some unit employees raised the Bravo
matter as a topic of concern. The Respondent caused
Bravo to lose work and income from commissions
because of his union activity. Accordingly, the sales-
men’s subsequent disaffection from the Union is rea-
sonably tied to the Respondent’s unfair labor practices.
With regard to warehouse unit, prior to the Turienzo,
Martin, and Galvez discharges, there had been signifi-
cant union activity, consisting of three 1-day strikes, a
consumer boycott, leafleting, and petition drives.
Twenty to 25 employees typically participated. Em-
ployee support for the Union declined shortly after the
Respondent discharged the three union adherents and
suspended and underemployed a fourth employee. In
particular, after the Union informed the employees that
it could not immediately get the unlawfully discharged
employees’ jobs back, employee participation in union
activity dramatically decreased. As noted, the Re-
spondent consistently refused to meet and discuss per-
sonnel and other issues with union-designated repre-
sentatives. By August 28, only 10 employees appeared
at union events, and on September 4 and on October 1,
1999, respectively, only 7 and 2 employees showed up.
This consistent decrease in support, occurring during
the same period as numerous serious unfair labor prac-
tices, indicates strongly that the Respondent’s unfair
labor practices effectively undercut employee support
for the Union and caused this employee disaffection.
Thus, under Master Slack, supra, the Respondent’s
substantial and continuing unfair labor practices
tainted the disaffection petitions, and these petitions do
not provide a basis for a lawful withdrawal of recogni-
tion.13
REMEDY
We agree with the judge that an affirmative bargain-
ing order is warranted in this case as a remedy for the
Respondent’s unlawful withdrawal of recognition from
the Union. We adhere to the view, for the reasons
fully set forth in Caterair International, 322 NLRB 64
(1996), that an affirmative bargaining order is “the
traditional, appropriate remedy for an 8(a)(5) refusal to

13 In view of this finding, we find it unnecessary to pass on the
Respondent’s further exceptions to the judge’s findings that the
Respondent’s aid in circulating the disaffection petitions also vio-
lated Sec. 8(a)(5), and that the Respondent unlawfully withdrew
recognition from the sales unit based on circulation of the petition
during the certification year.
GOYA FOODS OF FLORIDA 1123
bargain with the lawful collective-bargaining representa-
tive of an appropriate unit of employees.” The U.S.
Court of Appeals for the District of Columbia, however,
has required the Board to justify its imposition of the
order on the facts of each case. In NLRB v. Vincent In-
dustrial Plastics, 209 F.3d 727(D.C. Cir. 2000), the court
required the Board to balance: (1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act over-
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violation of the Act. Having
done so, we find an affirmative bargaining order is war-
ranted in the instant case.14
An affirmative bargaining order in this case vindicates
the Section 7 rights of the unit employees who were de-
nied the rights of collective bargaining by the Respon-
dent’s unlawful withdrawal of recognition. An affirma-
tive bargaining order, with its attendant bar to challeng-
ing the union’s continued majority status for a reasonable
time, does not unduly prejudice the Section 7 rights of
those employees who may oppose continued union rep-
resentation, because the duration of the order is no longer
than is reasonably necessary to remedy the effects of the
violations.
The affirmative bargaining order also serves the poli-
cies of the Act by fostering meaningful collective bar-
gaining and industrial peace. That is, it removes the Re-
spondent’s incentive to delay bargaining in the hope of
further discouraging support for the Union. It also en-
sures that the Union will not be pressured, by the possi-
bility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order. Further, as noted above, the
Respondent’s unilateral changes in drivers’ routes,
salesmen’s stores, radio phone policy, and emergency
leave policy; its increased use of temporary drivers; and
its nonrecognition of union designated representatives
also are the types of violations likely to have a lasting
and negative impact on employees’ support for the Un-
ion.

14 Chairman Battista and Member Schaumber do not agree with the
view expressed in Caterair International, supra, that an affirmative
bargaining order is “the traditional, appropriate remedy for an 8(a)(5)
violation.” They agree with the United States Court of Appeals for the
District of Columbia Circuit that a case-by-case analysis is required to
determine if the remedy is appropriate. Saginaw Control & Engineer-
ing, Inc., 339 NLRB 541, 546 fn. 6 (2003); see also Flying Foods, 345
NLRB 101, 109 fn. 23 (2005). They recognize, however, that the view
expressed in Caterair International, supra, represents extant Board law.
Regardless of which view is applied to the instant case, Chairman Bat-
tista and Member Schaumber agree that an affirmative bargaining order
is warranted here.
An affirmative bargaining order is especially war-
ranted because most of the Respondent’s unfair labor
practices occurred throughout the initial certification
year. By this conduct, the Respondent substantially
undermined the Union’s opportunity to effectively
bargain, without unlawful interference, during the pe-
riod when unions are usually at their greatest strength.
Because the Union was not given a truly fair opportu-
nity to reach an accord with the Respondent, it is only
by restoring the status quo ante and requiring the Re-
spondent to bargain with the Union for a reasonable
period of time that employees will be able to assess for
themselves the Union’s effectiveness as a bargaining
representative.
A cease-and-desist order without a temporary decer-
tification bar would be inadequate to remedy the Re-
spondent’s violations because it would permit a decer-
tification petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup
and bargain through their representative in an effort to
reach a collective-bargaining agreement. Such a result
would be particularly unfair in circumstances such as
those presented here, where many of Respondent’s
unfair labor practices are of a continuing nature and
are likely to have a continuing effect.
Following the election, the Respondent made nu-
merous unilateral changes in violation of Section
8(a)(5) affecting the employees’ terms and conditions
of employment without ever notifying the Union or
giving the Union an opportunity to bargain over the
changes. The Respondent also refused to recognize
the Union’s duly appointed representatives, unlawfully
discharged three unit employees, and suspended and
underemployed a fourth employee for engaging in un-
ion activity. These violations are likely to have a long
lasting and negative impact on union support, effects
that will not be remedied without the Union being of-
fered time to prove itself to the two units—an event
that is less likely absent a decertification bar. We find
that these circumstances outweigh the temporary im-
pact the affirmative bargaining order will have on the
rights of employees opposed to continued union repre-
sentation.
For these reasons, we find that an affirmative bar-
gaining order with its temporary decertification bar is
necessary to fully remedy the violations in this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Goya Foods of Florida, Miami, Florida,
its officers, agents, successors, and assigns, shall
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1124
1. Cease and desist from
(a) Unlawfully discharging, suspending, refusing to as-
sign available work to, or otherwise discriminating
against its employees to discourage them from support-
ing UNITE HERE, CLC, or any other labor organization,
or because they engage in union or other activities pro-
tected by Section 7 of the Act.
(b) Reassigning the routes of drivers who were either
discharged or otherwise temporarily or permanently
separated from their employment without notice to and
bargaining with the Union.
(c) Disproportionately increasing the number of tem-
porary employees used as regular drivers, and assigning
bargaining unit work to them, without notice to and bar-
gaining with the Union.
(d) Refusing to recognize the authority of employees
designated by the Union to represent Respondent’s em-
ployees for the purposes of adjusting grievances or oth-
erwise representing employees.
(e) Discontinuing established policies, including the
liberal granting of employees requests for leave during
the workday to tend to personal or family emergencies,
without notice to or bargaining with the Union.
(f) Disciplining employees, including Reinaldo Men-
doza, for the violation of policies unilaterally imple-
mented without prior notification to the Union and with-
out affording the Union an opportunity for meaningful
bargaining.
(g) Assigning sales accounts to sales personnel without
notice to or bargaining with the Union.
(h) Discontinuing the policy of allowing employees to
retain company-provided cellular radio phones during
their nonworking hours without notice to or bargaining
with the Union.
(i) Withdrawing recognition from the Union as the col-
lective-bargaining representative of employees in the unit
of all full-time and regular part-time drivers, forklift op-
erators, production, maintenance, and warehouse em-
ployees employed at Goya Foods of Florida (the ware-
house and drivers unit), and refusing to meet and bargain
in good faith with the Union.
(j) Withdrawing recognition from the Union as the col-
lective-bargaining representative of employees in the unit
of all full-time and regular part-time sales representatives
and merchandisers employed at Goya Foods of Florida
(the sales and merchandisers unit), and refusing to meet
and bargain in good faith with the Union.
(k) Informing employees that it would be futile for
them to select a union, or to continue to support a union,
as their collective-bargaining representative because the
Respondent would never recognize or negotiate with it.
(l) Interrogating employees about their union mem-
bership, activities, and sympathies and the union
membership, activities, and sympathies of other em-
ployees.
(m) Threatening employees with the elimination of
their jobs, or the subcontracting of their work, if they
engage in union activities.
(n) Threatening employees with the loss or reduction
of pension, or other benefits if they support the Union
or any other labor organization.
(o) Threatening employees that it would close the
company and move the Respondent’s operations out of
state if employees selected the Union as their collec-
tive-bargaining representative.
(p) Threatening employees with underemployment if
they engage in union activities.
(q) Requesting employees to ascertain and disclose
to Respondent the union membership, activities and
sympathies of other employees.
(r) Soliciting grievances from employees and prom-
ising to adjust these grievances if the employees cease
engaging in union activities.
(s) Promising to relieve employees of disagreeable
assignments if they cease supporting the Union or any
other labor organization.
(t) Informing employees that it would not recognize
the authority of employees designated by the Union, or
other labor organization, to represent employees for
the purposes of adjusting grievances and otherwise
representing them.
(u) Threatening employees with assaults on their un-
ion representatives if employees engaged in union ac-
tivities.
(v) Ordering employees not to wear union parapher-
nalia at sales meetings or anywhere at the Respon-
dent’s facility.
(w) 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 Alberto Turienzo, Jesus Martin, and Hum-
berto Galvez whole, with interest, for any loss of earn-
ings and other benefits that they may have suffered as
a result of their discharges from the Respondent on
July, 7, 1999, in the manner set forth in the remedy
section of the judge’s decision.
(b) Within 14 days from the date of this Order, offer
Alberto Turienzo, Jesus Martin, and Humberto Galvez
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
GOYA FOODS OF FLORIDA 1125
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Reinaldo Bravo whole, with interest, for any
loss of earnings and benefits that he may have suffered as
a result of his suspension and the Respondent’s subse-
quent refusal to restore him to the number of customer
accounts he serviced prior to his removal from Winn-
Dixie Supermarket 366 on July 7, 1999, in the manner
set forth in the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, restore
to Reinaldo Bravo the number of customer accounts he
serviced prior to July 2, 1999.
(e) Make whole unit employees in both certified bar-
gaining units for any loss of wages or other benefits they
may have suffered as a result of the Respondent’s unlaw-
ful unilateral actions, including assigning routes to driv-
ers since October 14, 1998, assigning stores to salesmen
since November 23, 1998, and disproportionately in-
creasing the number of temporary employees regularly
employed as drivers, in the manner set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971).
(f) Make whole warehouse and driver unit employees
for any losses occasioned by the Respondent’s unilateral
rescission of the policy of allowing employees to take
company-provided radio phones home with them, in the
manner set forth in Ogle Protection Service, supra.
(g) Recognize and upon request, meet and bargain in
good faith with the Union as the exclusive collective-
bargaining representative of its employees in the follow-
ing certified collective-bargaining units:
All full-time and regular part-time drivers, forklift op-
erators, production, maintenance and warehouse em-
ployees employed by the Employer at its facility lo-
cated at 1900 NW 92nd Avenue, Miami, Florida
33172; excluding all other employees, employed by
outside agencies and other contractors, office clerical
employees, managerial employees, guards and supervi-
sors as defined in the Act.
All sales representatives and merchandise employees
employed by the Employer at its facility located at
1900 NW Avenue, Miami, Florida 33172; excluding
all office clericals, guards and supervisors as defined in
the Act.
(h) Upon the Union’s request, rescind any unilaterally
implemented changes made in the terms and conditions
of employment of employees in the warehouse and driv-
ers unit since October 14, 1998, and of employees in the
sales and merchandisers unit since November 23, 1998;
provided, however, that the Respondent shall not be re-
quired to cancel favorable changes the Union wishes to
leave in place.
(i) Upon request, meet and adjust grievances with
the Union’s designated representatives for collective
bargaining or grievance adjustment purposes, includ-
ing employee representatives.
(j) 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 des-
ignated by the Board or its agents all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(k) Within 14 days after service by the Region, post
at its Miami, Florida facility copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since September 2, 1998.
(l) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful ac-
tions taken against Alberto Turienzo, Humberto
Galvez, Jesus Martin, Reinaldo Bravo, and Reginaldo
Mendoza, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
(m) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES

15 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 United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1126
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unlawfully discharge, suspend, refuse to
assign available work to, or otherwise discriminate
against our employees to discourage them from support-
ing UNITE HERE, CLC (the Union), or any other labor
organization, or because they engage in union or other
protected activities listed above.
WE WILL NOT reassign the routes of drivers who are ei-
ther discharged or otherwise temporarily or permanently
separated from their employment without notice to or
bargaining with the Union.
WE WILL NOT disproportionately increase the number
of temporary employees regularly employed as drivers
and assign bargaining unit work to them, without notice
to and bargaining with the Union.
WE WILL NOT assign sales accounts to sales personnel
without notice to and bargaining with the Union.
WE WILL NOT refuse to recognize the authority of em-
ployees designated by the Union to represent our em-
ployees for the purposes of adjusting grievances or oth-
erwise representing employees.
WE WILL NOT discontinue established policies, includ-
ing the granting of employee requests for leave during
the workday to tend to personal or family emergencies,
without notice to and bargaining with the Union.
WE WILL NOT discipline employees including Reinaldo
Mendoza for the violation of policies unilaterally imple-
mented, without prior notification to the Union and with-
out affording the Union an opportunity for meaningful
bargaining.
WE WILL NOT discontinue the policy of allowing em-
ployees to retain company-provided radio phones during
their nonworking hours without notice to and bargaining
with the Union.
WE WILL NOT withdraw recognition from the Union as
the collective-bargaining representative of employees in
the unit of all full-time and regular part-time drivers,
forklift operators, production, maintenance and ware-
house employees employed at Goya Foods of Florida
and refuse to meet and bargain in good faith with the
Union.
WE WILL NOT withdraw recognition from the Union
as the collective-bargaining representative of employ-
ees employed in the unit of all full-time and regular
part-time sales representatives and merchandisers em-
ployed at Goya Foods of Florida and refuse to meet
and bargain in good faith with the Union.
WE WILL NOT inform employees that it would be fu-
tile for them to select a union or to continue to support
a union as their collective-bargaining representative
because we would never recognize or negotiate with it.
WE WILL NOT interrogate employees about their un-
ion membership, activities, and sympathies or the un-
ion membership, activities, and sympathies of other
employees.
WE WILL NOT threaten employees with the elimina-
tion of their jobs, or the subcontracting of their work, if
they engage in union activities.
WE WILL NOT threaten employees with the loss or
reduction of benefits if they support the Union or any
other labor organization.
WE WILL NOT threaten employees that we will close
the company and remove our operations out of State if
employees select the Union, or any other labor organi-
zation, as their collective-bargaining representative.
WE WILL NOT threaten employees with underem-
ployment if they engage in union activities.
WE WILL NOT request that employees ascertain and
disclose to us the union membership, activities, and
sympathies of other employees.
WE WILL NOT solicit grievances from employees and
promise to adjust those grievances if employees cease
engaging in union activities.
WE WILL NOT promise to relieve employees of dis-
agreeable assignments if they cease supporting the
Union, or any other labor organization.
WE WILL NOT inform employees that we will not
recognize the authority of employees designated by the
Union to represent employees for the purposes of ad-
justing grievances and otherwise representing them.
WE WILL NOT threaten employees with assaults on
their union representatives if employees engage in un-
ion activities.
WE WILL NOT order employees not to wear union
paraphernalia at sales meetings, or anywhere at our
facilities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights listed above.
GOYA FOODS OF FLORIDA 1127
WE WILL, within 14 days from the date of the Board’s
Order, offer Alberto Turienzo, Jesus Martin, and Hum-
berto Galvez immediate and 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 other rights and privileges previously enjoyed.
WE WILL make Alberto Turienzo, Jesus Martin, and
Humberto Galvez whole for any loss of earnings and
other benefits they may have sustained as a result of their
unlawful discharges on July 7, 1999, less any interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, restore to Reinaldo Bravo the number of cus-
tomer accounts he serviced prior to July 2, 1999.
WE WILL make Reinaldo Bravo whole, with interest,
for loss of earnings and benefits he may have sustained
as a result of his unlawful suspension and our refusal to
restore to Bravo the number of customer accounts he
serviced prior to his removal from Winn-Dixie Store 366
and his subsequent removals from two La Mia stores.
WE WILL make unit employees in both certified bar-
gaining units whole, with interest, for any loss of wages
or benefits they may have sustained as a result of our
unlawful unilateral actions, including assigning routes to
drivers since October 14, 1998, assigning stores to
salesmen since November 23, 1998, and disproportion-
ately increasing the number of temporary employees
regularly employed as drivers.
WE WILL make warehouse and driver unit employees
whole, with interest, for any losses occasioned by our
unilateral rescission of the policy of allowing employees
to take company-provided radio phones home.
WE WILL recognize and, on request, meet and bargain
in good faith with the Union as the exclusive collective-
bargaining representative of our employees in the two
certified collective-bargaining units.
WE WILL, upon the Union’s request, rescind any uni-
laterally implemented changes we made in the terms and
conditions of employment of unit employees in the
warehouse and drivers unit since October 14, 1998, and
in the sales and merchandising unit since November 23,
1998; provided, however, that we will not cancel favor-
able changes the Union wishes to leave in place.
WE WILL, upon request, meet and adjust grievances
with the Union’s designated representatives for collec-
tive-bargaining or grievance adjustment purposes, in-
cluding employee representatives.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful actions taken against employees Alberto Turienzo,
Jesus Martin, Humberto Galvez, and Reinaldo Bravo,
and Reinaldo Mendoza, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that our unlawful actions will not be
used against them in any way.
GOYA FOODS OF FLORIDA
Arturo Ross, Esq., Jennifer Burgess-Solomon, Esq., and Hec-
tor Nava, Esq., for the General Counsel.
James Crosland, Esq., Denise Heekin, Esq., and Carlos
Ortiz, Esq., for the Respondent.
Ira Katz, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on 13 days between
June 5 and 21, 2000. The consolidated complaint was issued
by the Acting Regional Director for Region 12 of the Na-
tional Labor Relations Board (the Board) on April 18, 2000,
and is based on charges filed by the Union of Needletrades,
Industrial and Textile Employees, AFL–CIO/CLC (UNITE,
or the Union, or the Charging Party) commencing on Sep-
tember, 16, 1998, and thereafter. The complaint as amended
alleges that Respondent Goya Foods of Florida (Goya, or the
Company, or Respondent) has committed violations of Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act). Respondent has by its answer duly filed, denied
the commission of any violations of the Act.
On the entire record including the testimony of the wit-
nesses and the exhibits received in evidence and after review
of the briefs filed by the General Counsel, the Charging
Party, and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits and I find that
at all times material herein during the 12-month period pre-
ceding the filing of the complaint, the Respondent has been a
Delaware corporation, with an office and place of business in
Miami, Florida, where it has been engaged in the wholesale
distribution of food products and in conducting its business
operations, it purchased and received at its Miami, Florida
facility, goods and materials valued in excess of $50,000
directly from points located outside the State of Florida, and
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE APPROPRIATE UNITS
The complaint alleges, Respondent admits, and I find that
at all times material herein the following employees of Re-
spondent (the units) constituted two separate units appropri-
ate for collective bargaining within the meaning of Section
9(b) of the Act:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1128
1. The following employees of Respondent called the ware-
house employees and drivers unit:
All full-time and regular part-time drivers, forklift operators,
production, maintenance and warehouse employees, em-
ployed by the Employer at its facility located at 1900 NW
92nd Avenue, Miami, Florida 33172; excluding all other em-
ployees, employees employed by outside agencies and other
contractors, office clerical employees, managerial employees,
guards and supervisors as defined in the Act.
On October 26, 1998, the Union was certified as the exclu-
sive collective-bargaining representative of the warehouse em-
ployees and drivers unit and has at all times since October 26,
1998, been the exclusive collective-bargaining representative of
the warehouse employees and drivers unit by virtue of Section
9(a) of the Act.
2. The following employees of Respondent called the sales
representatives and merchandising employees unit:
All sales representatives and merchandise employees em-
ployed by the Employer at its facility located at 1900 NW
92nd Avenue, Miami, Florida 33172; excluding all office
clericals, guards and supervisors as defined in the Act.
On December 4, 1998, the Union was certified as the exclu-
sive collective-bargaining representative of the sales represen-
tatives and merchandising employees unit and has at all times
since December 4, 1998, been the exclusive collective-
bargaining representative of the sales representatives and mer-
chandising employees Unit by virtue of Section 9(a) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Goya is the largest wholesaler of Hispanic food products in
the United States and operates in several other States and
Puerto Rico as well as in Miami, Florida, where it operates the
warehouse facility involved in these cases. In October 1998,
the employees in the warehouse and drivers unit voted to select
the Union as their exclusive collective-bargaining representa-
tive. In November 1998, the employees in the sales representa-
tives and merchandising employees unit voted to select the
Union as their exclusive collective-bargaining representative.
The Union and Respondent commenced bargaining on behalf
of the warehouse and drivers unit in December 1998, and met
approximately once a month thereafter until June 1999. Bar-
gaining on behalf of the sales representatives and merchandis-
ing employees unit commenced in March 1999, with the parties
engaging in approximately four bargaining sessions. Bargain-
ing for both units was unsuccessful and the Union engaged in
work stoppages, one in January 1999, one on Good Friday in
1999, and one on Memorial Day in 1999 and in further action
in June 1999, when it demonstrated on a parking lot near a store
of Respondent’s largest customer, Winn-Dixie.
The allegations in this complaint consist of a number of
8(a)(1) allegations wherein the Respondent is alleged to have
violated employees Section 7 rights by engaging in interroga-
tion, made promises and issued threats to employees in order to
discourage the employees support for the Union. The Respon-
dent is also alleged to have violated Section 8(a)(3) and (1) of
the Act by its discharge of three employees who entered a
Winn-Dixie store along with several union officials and non-
Goya employee supporters, and by the removal and failure to
replace three stores from the stores which had been assigned
to an employee salesman who contended he had found a nest
of rodents in a box of Goya product (a spicy barbecue sauce
called “Mojo”) while he was servicing a Winn-Dixie store.
Respondent is also alleged to have violated Section 8(a)(5) of
the Act by refusing to permit union designated employee
representatives to represent its employees in the appropriate
unit and to have implemented several unilateral changes in
the terms of employment and the working conditions of the
employees in the appropriate units without notifying the
Union of the changes and affording the Union an opportunity
to bargain concerning these changes. The complaint does
not allege surface bargaining on the part of Respondent. The
complaint also alleges that Respondent unlawfully withdrew
recognition from the Union with respect to both units. Re-
spondent has denied the commission of any violations of the
Act.
B. The 8(a)(1) Allegations
The General Counsel presented a number of employees of
Goya who testified concerning various alleged acts of inter-
rogation, promises of benefits and threats by members of
Goya’s management and supervisory staff. Respondent pre-
sented witnesses who testified concerning certain but not all
of these alleged violations of the Act.
Mary Ann Unanue was the president of the Goya ware-
house in Miami, Florida, from 1995 to 1999. On September
2, 1998, the Union filed its petition for certification in the
warehouse and drivers unit. On September 4, 1998, Presi-
dent Mary Ann Unanue, Personnel Director Maria Cristina
Banos, and Warehouse Operations Manager Sergio Bazain
met with a group of four warehouse employees including
Arturo Jimenez and Francisco Cabrera at the warehouse.
Cabrera testified that at this meeting President Mary Ann
Unanue asked the employees “if they knew anything about
the Union” and that the employees denied knowing anything
about the Union. He testified that she then told the employ-
ees she would never allow the Union into her office or into
the Company. She asked the employees if they knew the
Union was distributing flyers at the door of the warehouse.
They also denied knowledge of this. She then told the em-
ployees to report anything they found out about the Union to
her, Maria Cristina Banos, or Sergio Bazain.
I credit Cabrera’s testimony as set out above which was
not specifically denied by Mary Ann Unanue who testified
only in general terms that she did not interrogate or threaten
employees and that she had not informed employees that she
would not negotiate with the Union. Neither Banos nor Ba-
zain were called to testify. Mary Ann Unanue attributed tes-
timony by various employees concerning statements made by
her and interrogation engaged in by her to possible confusion
on the part of the employees concerning what she said, be-
cause her primary language is English whereas the primary
language of the employees was Spanish and she spoke to
them in Spanish. However, I credit the testimony of Cabrera
GOYA FOODS OF FLORIDA 1129
and the other current employees who testified infra concerning
these allegations of Section 8(a)(1) committed by Mary Ann
Unanue. I do not find that their recall of the remarks made and
interrogation engaged in by Mary Ann Unanue was attributable
to language difficulties. Rather I find a consistent theme of
unlawful interrogation and threats to employees in order to
defuse the union campaign.
I find that Respondent violated Section 8(a)(1) of the Act by
Mary Ann Unanue’s statement that she would never allow the
Union into her office thus conveying the futility of the employ-
ees’ support of the Union, Wellstream Corp., 313 NLRB 698,
706 (1994). Her interrogation of the employees concerning
their knowledge of union activities was also coercive in viola-
tion of Section 8(a)(1) of the Act, Structural Composites Indus-
tries, 304 NLRB 729 (1996), as was her request that employees
report any information about union activities, Greenfield Die
Mfg. Corp., 327 NLRB 237 (1998); State Equipment, Inc., 322
NLRB 631 (1996).
Warehouse employee Eddie Mirjares testified concerning
another occasion on or about September 4, 1998, when Mary
Ann Unanue met with a group of warehouse employees includ-
ing Mirjares, Ray Quesda, and Falcone. Mirjares testified that
she told these employees that she would not negotiate with the
Union even if it won the election. This was a message she
repeated in the many meetings she had with the warehouse and
driver unit employees prior to the representation election. Cur-
rent employee, driver Rodolfo Chavez testified that she re-
peated the message in meetings from September to October 14,
1998, that she would never recognize or bargain with the Un-
ion. Warehouse employee Alberto Turienzo testified that at
several meetings he attended held by Mary Ann Unanue, she
stated that she would never recognize or bargain with the Un-
ion.
I credit the foregoing testimony of employees Mirjares,
Chavez, and Turienzo, and find that these statements of Re-
spondent’s president, Mary Ann Unanue, were violative of
Section 8(a)(1) of the Act. These statements that she would not
recognize or bargain with the Union conveyed to the employees
that their support of the Union was futile as the Respondent
would not recognize or bargain with the Union even if the em-
ployees selected it as their collective-bargaining representative.
Fieldcrest Cannon, Inc., 318 NLRB 470 (1995); Wellstream
Corp., supra.
Driver Rolando Aguiar testified that in September or early
October 1998, Mary Ann Unanue, Maria Cristina Banos, and
Sergio Bazain met with him in Mary Ann Unanue’s office
where Mary Ann Unanue asked him if he knew anything about
the Union or if he had knowledge of union activity and asked
him if he was a member of the Union. He denied any knowl-
edge of the Union. Mary Ann Unanue told him there was a
union campaign ongoing and that the union people wanted to
“implement” a union at the Company which she would never
let happen as she would never recognize the Union.
I credit Aguiar’s testimony and find that Mary Ann Unanue’s
interrogation of Aguiar was coercive and her threat that she
would never recognize the Union was a threat of the futility of
supporting the Union. By this interrogation Respondent vio-
lated Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176, 1177 (1984); Sunnyvale Medical Clinic, 277 NLRB
1217 (1984). By this threat Respondent violated Section
8(a)(1) of the Act. Structural Composites Industries, supra;
and Soltech, Inc., 306 NLRB 269 (1992).
Mary Ann Unanue met with three drivers including
Rodolfo Chavez in her office in September 1998 and in the
presence of Personnel Director Banos and Warehouse Opera-
tions Manager Bazain. At that meeting she asked the three
drivers if they knew anything about the employees’ efforts to
bring in a union. All three drivers denied knowledge of a
union. This interrogation was coercive and violative of Sec-
tion 8(a)(1) of the Act. Rossmore House, supra; Sunnyvale
Medical Clinic, supra; Gardener Engineering, 313 NLRB
755 (1994); and Structural Composites Industries, supra.
Driver Rodolfo Chavez testified that in September 1998,
Mary Ann Unanue told the employees that if they were orga-
nizing a union to prevent the Company from terminating the
drivers or converting their positions to that of independent
contractors, they were mistaken as her plans to convert these
positions to private contractors would proceed. At that point
she turned to her labor counsel, James Crosland, who was in
attendance and asked if she had the legal right to do so. Ac-
cording to Chavez, Crosland informed her that she could
subcontract the work if the decision were based on economic
considerations other than labor costs. However, Chavez
testified that the legal advice was given by Crosland in Eng-
lish and was not translated into Spanish for the predomi-
nately Spanish-speaking drivers.
The General Counsel contends that Mary Ann Unanue’s
statement to these employees was violative of Section 8(a)(1)
of the Act because it “was a highly coercive threat of job loss
impressing on the employees that union representation would
not deter Unanue from making unilateral changes to employ-
ees working conditions.” In support thereof, the General
Counsel cites MPG Transport, Ltd., 315 NLRB 489 (1994),
where a threat that employees would lose their jobs through
subcontracting due to their choosing a union representative
was found to be violative.
I find that the evidence concerning this allegation is suffi-
cient to establish a violation of the Act. This statement by
Mary Ann Unanue even as clarified by her legal counsel was
a threat that the Employer could make a decision to subcon-
tract without regard to the Union. It was a threat of futility
that Respondent would subcontract regardless of their choice
of a union representative. I find the statement by Mary Ann
Unanue violated Section 8(a)(1) of the Act.
Driver Freddy Purchales testified that on September 8 or
9, 1998, he and another driver Tomas (Hernandez) were
waiting outside of President Mary Ann Unanue’s office and
were approached by Personnel Manager Banos who told
them that Mary Ann Unanue was interviewing drivers and
other employees who were involved with the Union. Banos
then asked Purchales if he was involved with the Union.
When he replied that he was, Banos told him to wait until
they could see him. After a 10- to 15-minute wait, Banos
told him that Mary Ann Unanue would not be able to see him
that date but would “take care of him” another day. Banos
explained to Puchales that they were meeting with employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1130
ees to dissuade them from supporting the Union by explaining
why it was not “convenient” or in their best interest to support
the Union.
I credit the testimony of Purchales which was unrebutted as
Banos was not called to testify. I find that Respondent violated
Section 8(a)(1) of the Act by Banos’ interrogation of Purchales
and Hernandez which was clearly coercive and had the ten-
dency to interfere with their Section 7 rights to support a union.
Structural Composites Industries, supra.
Warehouse employee Miguel Then testified that in early
September 1998, Warehouse Operations Manager Sergio Ba-
zain telephoned him and asked if he had signed a union (au-
thorization) card. Then replied that he had. Bazain asked him
if he had thought it through and told him that the laws of Flor-
ida were not favorable for union organizing. Then told Bazain
that he had thought about it and would wait to see how it came
out.
I credit the testimony of Then which was unrebutted as Ba-
zain was not called to testify. I find that Respondent violated
Section 8(a)(1) of the Act by Bazain’s interrogation of Then
which was clearly coercive. Kentucky May Coal Co., Inc., 317
NLRB 60, 62 (1995).
Then also testified that in early to mid-September 1998,
Mary Ann Unanue spoke to him in her office. Personnel Man-
ager Banos was also present. Unanue told Then she had re-
ceived a petition indicating that a certain percentage of the
employees wanted to be represented by a union. She asked
Then if he knew anything about it and told him to be careful
with the “union thing” because they would approach him. She
told him to remember that unions only bring problems. She
cited Eastern Airlines and contended that the “union had forced
them into bankruptcy.” Unanue also told Then that Goya
would never negotiate with the Union.
I credit the testimony of Then which was not specifically re-
butted by Mary Ann Unanue and was not rebutted by Banos
who was not called to testify. I find that the questioning of
Then by Unanue was coercive under the totality of the circum-
stances and that Respondent violated Section 8(a)(1) of the Act
thereby. The statement that Goya would never negotiate with
the Union which was an unlawful threat of the futility of sup-
porting the Union was thus also violative of Section 8(a)(1) of
the Act.
Driver Rodolfo Chavez also testified that between mid-
September and October 1998, Mary Ann Unanue held a meet-
ing with the Goya drivers and showed them a video describing
the bargaining process. She then told the drivers that if they
chose union representation “bargaining could commence at
zero, and (employees) could lose the benefits they enjoyed.”
I credit the testimony of Chavez which was not specifically
rebutted by Mary Ann Unanue. I find that her statement was a
threat of a loss of benefits if the employees chose union repre-
sentation. Her emphasis on the commencement of bargaining
at zero was an implied threat that benefits could be lost or re-
duced to entry levels. There is no specific evidence that Mary
Ann Unanue explained the overall give and take of bargaining
in this case but rather she focussed on the potential loss of
benefits. Webco Industries, 327 NLRB 172 (1998); Lear
Siegler Management Service, 306 NLRB 393 (1992).
Warehouse employee Alberto Tuinezo (one of three em-
ployees discharged by Respondent alleged as discriminatees
in this case) testified that in late September 1998, he showed
Warehouse Supervisor Jose Valdez a flyer he had received
from union representatives who were leafleting at Goya. He
told Valdez that the union representatives might give Valdez
a flyer if he went to the area where they were distributing the
flyers. Valdez replied that “if they gave him a flyer he would
have a discussion with them and he might end up hitting
someone from the Union.” At the hearing Turienzo con-
ceded that he did not feel physically threatened by Valdez’
statement.
I credit Turienzo’s testimony which was unrebutted. I
find the statement made by Respondent’s supervisor was
violative of Section 8(a)(1). Although the threat made by
Valdez was apparently not taken literally by Turienzo, it was
nonetheless coercive as it was clearly indicative of Respon-
dent’s antiunion animus and the hostility of Respondent with
the possibility of adverse employment actions with which
Respondent might respond to union activities engaged in by
its employees.
Turienzo also testified that in early October 1998, Mary
Ann Unanue announced to a group of warehouse employees
at a meeting in the conference room that any employee who
was a member of the Union would not be able to participate
in the Company’s pension plan. She told the employees she
would only respect the Company’s obligation regarding pen-
sion benefits for employees who “did not belong to the Un-
ion.” Mary Ann Unanue testified she did not threaten to
deprive members of pension benefits but explained to em-
ployees that their current pension plan would be negotiable
subject to collective bargaining. . . . . “that sometimes a
union brought in their own pension plan and that employees
would only be entitled to one pension plan, not two pension
plans.” She acknowledged she was uncertain if “there was a
misinterpretation in that situation . . . (she) had some diffi-
culty explaining some of the stuff to them in Spanish.” Em-
ployee Miguel Then testified that in January 1999, he re-
ceived a retirement benefits plan letter in the mail from Re-
spondent which presumably was mailed to all the warehouse
and driver unit employees. The letter was signed by Person-
nel Manager Banos. The first line of the letter, stated that
Goya Foods was pleased to provide employees who did not
belong to the Union with the enclosed information regarding
their pension benefits. Then testified the letter frightened
employees that Goya would not honor its pension obligations
to union members. The General Counsel contends in his
brief that the “intended effect of this letter was to instill fear
in employees and thereby compromise employee support for
the Union.”
I credit the testimony of Turienzo and Then as set out
above and as supported by the above cited letter sent to em-
ployees in January 1999, notwithstanding Mary Ann Una-
nue’s denial as qualified by her. I find that the effect on the
employees of Mary Ann Unanue’s comments and the above
statement contained in the letter was to coercively create the
impression and threaten that they could or would lose their
pension benefits if they became members of the Union. I
GOYA FOODS OF FLORIDA 1131
find that both Mary Ann Unanue’s comments and the letter
were violative of Section 8(a)(1) of the Act. See Niagra Wires,
240 NLRB 1326 (1979); cf. KEZI, Inc., 300 NLRB 594 (1990).
Turienzo testified that at a meeting in early October 1998,
and several later meetings held with the drivers and warehouse
employees, Mary Ann Unanue threatened employees that if
they voted for the Union in the upcoming representation elec-
tion, Respondent could close and leave the State. Mary Ann
Unanue denied ever making such threats.
I credit Turienzo’s testimony in this regard and find that this
statement was violative of Section 8(a)(1) of the Act. The
threat of closure and leaving the state was not based on objec-
tive fact and clearly implied that Respondent might close and
leave the State for reasons unrelated to economic necessities.
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
Turienzo testified concerning a meeting in the Goya dining
room between September and October 1998. Present were
employees Luis Castillo, Maria Oramas, and Turienzo and
Managers Banos, Bazain, and Mary Ann Unanue. Unanue
specifically asked Turienzo if he had signed a union card. He
admitted having done so. She then asked the other two em-
ployees if they had signed a union card and they denied having
done so. Mary Ann (in reference to Turienzo’s admission that
he had signed a union card) stated she could not believe what
had become of the Goya family and that she could not believe
what she had heard.
I credit Turienzo’s testimony which was unrebutted by Mary
Ann Unanue during her testimony nor by Banos and Bazain
who were not called to testify. I find that Mary Ann Unanue’s
questioning of these employees and her disapproving comments
regarding Turienzo’s affirmative reply to her inquiry whether
he had signed a union card were coercive and violative of Sec-
tion 8(a)(1) of the Act. Pleasant Manor Living Center, 324
NLRB 368 (1997).
Miguel Then testified that at meetings held between Septem-
ber 15 and October 1998, with drivers and warehouse employ-
ees, attended by Domingo Villar, Vladimir Romero, Torres,
and Then, Mary Ann Unanue told employees that if the Union
won the election, employees could lose benefits because nego-
tiations would start at zero, half or nothing. Then told her she
had not convinced him and she asked, “[W]hat can I do to con-
vince you. Come by my office.”
I credit Then’s testimony which was not specifically rebutted
by Mary Ann Unanue. I find that the above statement by Una-
nue coupled with the invitation to come to her office so she
could “convince” him made in the presence of the other em-
ployees was the solicitation of grievances with the implied
promise that they would be remedied. Moreover, in the ab-
sence of any evidence of such solicitation in the past, it is clear
that the solicitation of grievances with the implied promise to
remedy them, was undertaken to convince employees that Re-
spondent would resolve their grievances without the need for
union representation. I find Respondent violated Section
8(a)(1) of the Act thereby. Matheson Fast Freight, 297 NLRB
63, 69 (1989).
Salesman Boris Vega testified that at weekly meetings held
with the salespersons between October 18 and November 18,
1998, Mary Ann Unanue regularly told the employees that if
they chose union representation, they would lose all their
benefits and that bargaining would begin at zero with no
benefits. Salesman Juan Carlos Gonzalez testified that at the
five meetings he attended between October 18 and Novem-
ber 18, 1998, Mary Ann Unanue told the employees that if
they selected union representation, they would not get any-
thing. He testified that Unanue stated, “[E]ven if the Union
won, employees could still lose because they could lose all
their benefits.” He testified that she did not tell the employ-
ees that Respondent has an obligation to bargain in good
faith if the Union won the election.
Gonzalez’s and Vega’s testimony in this regard were sup-
ported by similar testimony of witnesses called by Respon-
dent in this case. Carlos Galvis testified that Mary Ann
Unanue told the employees at these meetings that if the em-
ployees chose union representation, “bargaining would start
from the ground and they would work up or work down.”
Sergio Tamargo testified that Mary Ann Unanue told the
salespeople that “negotiations would start at zero” and bene-
fits could go up or down from there. I find that Mary Ann
Unanue’s statements to the salespersons as testified to by
salesmen Vega and Gonzalez whose testimony I credit, were
violative of Section 8(a)(1) of the Act as they were clear
threats to reduce employee benefits if the employees chose
union representation. The impact of Unanue’s statements
were that the employees would lose existing benefits at the
outset and that the Union would have to successfully bargain
with Respondent to obtain their restoration. See Capital EMI
Music, 311 NLRB 997, 1008 (1993), and Shaw’s Supermar-
kets, 289 NLRB 844 fn. 3 (1988).
Salesman Boris Vega testified that at the sales meetings in
the October 18 to November 18, 1998 period, Mary Ann
Unanue told the salesman that she had been considering of-
fering them a 401(k) plan but as a result of the union cam-
paign “everything was suspended.” Mary Ann Unanue testi-
fied that Respondent had under consideration a 401(k) plan
since early 1998, for all its employees but that would be
negotiable if the Union won the election.
I credit Vega’s unrebutted testimony and find that Mary
Ann Unanue’s comments to its employees were violative of
Section 8(a)(1) of the Act. It is clear that her remarks were
intended to and had the effect of indicating to the employees
that they had lost (at least temporarily) a benefit by reason of
their support of the Union. Respondent presented no evi-
dence to support the statement by Unanue that the 401(k)
plan had been compromised because of the union campaign.
The clear implication of Unanue’s remarks to the employees
was that Respondent was unable to follow through with the
401(k) plan under consideration. However, Respondent
presented no evidence to support this statement by Unanue.
See Laidlaw Waste Systems, 307 NLRB 52, 54 (1992).
Salesman Vega also testified that at the meetings Mary
Ann Unanue told the sales employees that Respondent could
use distributors to distribute its products and that with or
without its sales staff, the Company would go on and the
salespersons would no longer be required. Vladimir
Fouchard, a witness called by Respondent, testified that
Mary Ann Unanue told the sales employees at these meetings
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1132
that she could use independent contractors or brokers rather
than the sales personnel as Respondent was in a right-to-work
State.
I credit the unrebutted testimony of Vega and Fouchard as
Mary Ann Unanue did not directly address this in her testi-
mony. I find as contended by the General Counsel that this was
a “veiled threat to eliminate the salesmen’s jobs if they selected
the Union as their collective bargaining representative . . . .” I
find this statement was violative of Section 8(a)(1) of the Act.
Bestway Trucking, 310 NLRB 651, 671 (1993). It clearly sent
the message to its salespersons that Respondent could arbitrar-
ily eliminate their jobs.
Salesman Juan Carlos Gonzalez testified that at a meeting
between October 21 and November 18, 1998, being held by
Mary Ann Unanue, he stood up and stated that he supported the
Union. When told to sit down and keep quiet by a sales super-
visor, he refused. He testified that Unanue then asked, “If you
are not in agreement with the Company, why don’t you just
leave.” Unanue testified that she remarked that if she were not
happy with a company she would just leave.
I credit Gonzalez’ version. However, I find that under either
version, the comment by Unanue was violative of Section
8(a)(1) of the Act as Unanue’s comment as clearly a threat of
discharge in retaliation for the comments of Gonzalez in sup-
port of the Union. See McDaniel Ford, Inc., 322 NLRB 956
(1997); Paper Mart, 319 NLRB 9 (1995).
Warehouse employee Francisco Cabrera testified that in late
September or early October 1998, at a meeting of the night-
shift warehouse employees Mary Ann Unanue spoke to the
employees following the showing of a video, Cabrera asked her
why the night-shift employees were required to perform the
loading work for the Tampa Distribution Center. He contended
the morning shift could do this work. Unanue told him at the
meeting that this work would no longer be assigned to the night
shift. Unanue testified that she told the employees at the meet-
ing she would try to have this work transferred to the day shift
and did so.
The General Counsel contends in brief that this “promise to
remove a disagreeable assignment was intended, and would
have tended, to discourage employees from supporting the Un-
ion, coming as it did within a week to two weeks prior to the
representation election.” I find that the promise was violative
of Section 8(a)(1) of the Act. I recognize that the promise to
eliminate this task considered disagreeable, from the night shift,
was in answer to an unsolicited inquiry by an employee and
conceivably may not have been viewed as favorable by the day
shift who were also scheduled to vote in the upcoming elec-
tions. However, I find that this promise of the removal of the
task considered disagreeable in response to Cabrera’s inquiry
was violative of Section 8(a)(1) of the Act, as it came within a
short period prior to the election and would tend to discourage
employee support of the Union. See NLRB v. Exchange Parts
Co., 375 U.S. 405 (1964).
Boris Vega, Juan Carlos Gonzalez, and Reinaldo Bravo testi-
fied that on February 24, 1999, they and other employees wore
union caps and stickers to a sales meeting and were all ordered
by supervisors to remove them or leave the meeting. Gonzalez
and Vega testified that there had never been a dress code or
prohibition against the wearing of union paraphernalia prior
to this meeting.
I credit the testimony of these employees and find that the
prohibition against the wearing of union paraphernalia was
violative of Section 8(a)(1) of the Act. Sears, Roebuck &
Co., 305 NLRB 193, 198–199 (1991); Kendall Co., 267
NLRB 963, 965 (1983).
Truckdriver Roldolfo Chavez testified that on August 8 or
9, 1999, Frank Unanue (president of Goya Foods of Puerto
Rico who is one of only three shareholders of Respondent)
during a conversation with Chavez and warehouseman Gil-
berto Torres, told Chavez that a cap with a union logo then
being worn by Chavez was an “affront” to him and that he
was going to do everything possible to force a divorce be-
tween the Union and Respondent’s employees. Frank Una-
nue also told him that he was the Union in Respondent’s
facility in Puerto Rico, that he liked to work with people on a
one to one basis and that Respondent did not need any third
parties in its business. Frank Unanue testified he did not say
anything like “he did not like the hat Chavez was wearing
and he was going to divorce the Union and Goya.” At one
point in his testimony Frank Unanue in reference to the con-
versation stated, “I don’t give a damn if he wears a union
hat!” At another point in his testimony, he called salesman,
Reinaldo Bravo, a fool for talking to employees of one of
Goya’s customers about the Union which he (Frank Unanue)
considered disloyal to the customer.
I credit the testimony of Chavez as set out above. I find
that Frank Unanue’s antiunion sentiments permeated his
testimony. It is clear that he considers the Union as an inter-
loper in Respondent’s relationship with its employees and
considers those who support the Union as disloyal to Re-
spondent. I find that Frank Unanue’s statements to Chavez
and Torres were violative of Section 8(a)(1) of the Act as
they were coercively threatening to employees who asserted
their Section 7 rights to support the Union and implicitly
threatened that the Respondent would not negotiate with the
Union and that it was futile to support the Union because he
would do everything possible to “divorce” the Union and
Respondent’s employees.
Pedro Gonzalez testified that in early November 1999,
Frank Unanue told the employees at a sales meeting of all
salespersons that if Goya employees continued with the un-
ion rallies and activities at the Winn-Dixie supermarkets,
Respondent could lose the account and “employees could
suffer because they would lose their jobs.” Juan Carlos Gon-
zalez testified that at a sales meeting in September 1999,
Frank Unanue told the employees that if they kept “fooling
around by protesting at Winn-Dixie Supermarkets, that
Winn-Dixie was going to remove Goya salesmen from their
stores and Goya was going to have to terminate a lot of
salespeople . . . and not specifically, just the salesmen who
serviced the Winn-Dixie stores.” This was in reference to a
large union rally which had been held near a Winn-Dixie
store in June 1999, and during which the Union International
Leadership had led a group of union members and three
Goya employees in an excursion into the Winn-Dixie store.
The three Goya employees were discharged by Respondent
GOYA FOODS OF FLORIDA 1133
for their participation therein. It also referred to an incident in a
Winn-Dixie store where Goya salesman Reinaldo Bravo had
claimed to have discovered a nest of rodents in a box of Mojo
sauce while he was stocking the Winn-Dixie shelves with Goya
products and had called this to the attention of the Winn-Dixie
store’s management. As a result of this incident Bravo was
banned from this store by Winn-Dixie which was one of four
large stores serviced by Bravo and which was not replaced by a
reassignment of another account by Respondent thus resulting
in the underemployment of Bravo and the consequent loss of
income by Bravo.
I find that the statement made by Frank Unanue at the No-
vember 1999 meeting was a coercive threat of discharge and/or
underemployment as in the case of Bravo if the employees
continued in their support of the Union and that Respondent
thereby violated Section 8(a)(1) of the Act. I find in agreement
with the General Counsel’s argument in brief that the statement
by Frank Unanue was violative of the Act notwithstanding
whether or not Winn-Dixie had been contemplating removing
the Goya salesmen from its stores as there was no direct evi-
dence that Winn-Dixie was contemplating the elimination of
direct store delivery or the reason why it was contemplating
doing so.
In a letter dated July 9, 1999, sent to its salesman Respon-
dent contended that the incident involving the finding of ro-
dents in a box of Goya products at a Winn-Dixie store on July
2, 1999, by Reinaldo Bravo had placed the salespersons’ jobs in
jeopardy, I find this letter was violative of Section 8(a)(1) as a
threat of loss of employment or underemployment to the sales-
persons if they continued in their support of the Union in the
absence of any direct supporting evidence of this.
C. The Discharge of Turienzo, Galvez, and Martin
On June 30, 1999, the Union held a rally on a public parking
lot across the street from Winn-Dixie Store 235 located in Mi-
ami, Florida. The purpose of the rally was to publicize and
garner support for its health based grievances against Goya for
alleged rodent infestation and unsanitary and unsafe working
conditions. The Union had made arrangements for the rally and
obtained permits from the city of Miami and also provided for
Miami police security as required by the city of Miami. The
Union was holding its convention at Miami Beach and several
bus loads of union officials and representatives were bused to
the rally where they were joined by a number of the warehouse
and sriver unit employees of Goya. A large inflatable rat was
placed at the site and a large grandstand which accommodated
a number of speakers including Goya employee Alberto Turi-
enzo who was a member of the union bargaining committee
and a leading union supporter. The rally was loud and boister-
ous with various speakers leading chants concerning the Un-
ion’s campaign against unsafe and unsanitary working condi-
tions at Goya. On June 23, 1999, employees Turienzo, Martin,
and Rolando Aquiar had previously registered complaints with
the Florida Department of Agriculture (DOA) which found
rodent activity. The DOA found rodent infestation in Goya’s
bean and rice areas and this section was temporarily shut down.
Additionally, Goya’s largest customer, Winn-Dixie representa-
tives found evidence of rodent infestation upon its inspection
of the warehouse.
At one point shortly before 4 p.m. Union President Jay
Mazur, Secretary/Treasurer Bruce Raynor, and Executive
Vice Presidents Edgar Romney and Ed Clark led a group of
union officials including the Union’s chief negotiator, Inter-
national Representative Mark Pitts, to solicit support from
Winn-Dixie. Pitts invited Goya employees Turienzo,
Galvez, and Martin to accompany the group of approxi-
mately 10 or more individuals. Additionally several indi-
viduals with video cameras followed the group as it entered
the Winn-Dixie Store. There have been several versions by
witnesses as to the manner in which the group entered the
store. Winn-Dixie Security Manager James Brogan testified
the group “stormed” the store. Johnathan Goldberg who was
the “crises” management consultant for Goya and who was
present at the store at the time of the rally testified that the
group entered the store in a purposeful walk. My review of
the videotapes entered in evidence convinces me that a pur-
poseful walk is the more accurate description. Once inside
the store some members of the group walked through the
cash register lanes to enter the transverse aisle between the
cash registers and the grocery shelves while customers were
in the lanes. Commencing shortly after their entry into the
store, Union Secretary/Treasurer Raynor loudly demanded to
see the manager repeating several times, “I want to see the
manager.” The group was met by store security guards and
Miami police who told them they must leave. The shouting
lasted less than a minute. Union Secretary/Treasurer Raynor
then talked in a normal voice and told the police and security
guards he wanted to give a letter to the manager. Upon his
realization after a brief discussion that the police were insist-
ing the group leave the store, Raynor signaled the group to
go and they left the store with some prodding from the
guards and police. They then went to an area in the front of
the store where Raynor continued to ask to see the manager
and present him with a letter asking Winn-Dixie's support in
the Union’s dispute with Goya. Upon being advised that the
manager was not coming out, Raynor left the letter on the
sidewalk by the guards and the group returned to the rally on
the street.
The letter reads as follows:
THE WORKERS OF GOYA FOODS AND UNITE
HEREBY DEMAND THE FOLLOWING OF THE
WINN-DIXIE SUPERMARKET CHAIN:
1. Commit your store to an ongoing role in the Goya
workers’ campaign to end unhealthy and unsafe prac-
tices at their workplace.
2. Establish a hot line where workers can anony-
mously inform a senior management official of new or
continuing health and safety problems at Goya.
3. Demand a non-retaliation pledge from Goya for
all workers who provide information on unhealthy and
unsafe practices at Goya.
The group had been inside the store approximately 4 min-
utes. There was no physical confrontation. No arrests were
made. Goya’s public relations/crises management consult-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1134
ant, Johnathan Goldberg, carried a camera and took photos of
the group. Upon reviewing them, Mary Ann Unanue deter-
mined that Turienzo, Galvez, and Martin wearing their blue
Goya shirts were among the group. Goya discharged all three
employees on July 7, 1999, the same day it suspended Bravo.
Turienzo was a 13-year employee at the time of his discharge.
Martin was an 11-year employee and Galvez was a 19-year
employer at the time of their discharges. My review of the
videotapes discloses that none of the three engaged in any overt
action of any kind other than being in the group. Turienzo was
immediately behind the two group’s leaders Raynor and Rom-
ney. Galvez and Martin were at the rear of the group. All three
employees testified that they did not speak. The videotapes
appear to refute this but it is not clear whether they spoke only
among themselves or what they said.
The Respondent contends the actions of Turienzo, Galvez,
and Martin were unprotected as they were seeking a boycott of
Goya Foods and their participation in the entry into the Winn-
Dixie store constituted misconduct which was sufficient to
render their activities unprotected. Respondent argues in the
alternative that even if the participation of Galvez and Martin in
the group action is found protected, Turienzo’s conduct should
be held unprotected as he was a more active participant than the
other two employees.
Analysis
I find the actions of employees Turienzo, Galvez, and Martin
in joining the group which entered the Winn-Dixie store were
protected concerted activities under Section 7 of the Act. I find
no evidence that they were seeking a boycott of Goya products
as contended by Respondent. I find that the entry into the store
by the group was a nonviolent solicitation of Winn-Dixie’s
support in dealing with the dispute with Goya. The mission of
the group as led by Raynor was to deliver a letter to the Winn-
Dixie manager. Notwithstanding the loud shouting by the un-
ion leaders which lasted less than a minute, there is no evidence
that the three discriminatees engaged in any misconduct of any
kind, much less misconduct so egregious as to cause their loss
of the protection of the Act. It is undisputed that Mary Ann
Unanue did not conduct any interviews with Turienzo, Galvez,
or Martin prior to Goya’s discharge of them. Rather the Re-
spondent seized on the photographs taken by Jonathan Gold-
berg and relied on his representation that the entry of the group
was improper. However, Goldberg did not specifically attrib-
ute any improper conduct to any of the three Goya employees
in the group. Moreover, the disruption to the neutral employer
was of short duration inside the store (less than 4 minutes) and
did not appreciably interfere with the activities of the store as
customers continued to shop in the store aisles and cash regis-
ters continued to ring as they were checked out as shown in the
videotapes. The demonstration by the Union inside the store
was peaceful with no violence and had only a minimal adverse
impact on operations as customers and employees looked up
and then continued to carry out their business. See NLRB v.
National Furniture Mfg. Co., 315 F.2d 280, 284–286 (7th Cir.
1963); Chrysler Corp., 228 NLRB 486, 490 (1977); Service
Employees Local 525 (General Maintenance Service), 329
NLRB 638 (1999); Allied Aviation Service Co. of New Jer-
sey, 248 NLRB 229 (1980).
I agree with the General Counsel’s argument that the in-
stant case is distinguishable from “Restaurant Horikawa”,
260 NLRB 197 (1982), and Burger King Corp., 265 NLRB
1507 (1982), where disruptive and arguably violent demon-
strations were held unprotected. These cases involved res-
taurants where patrons have a normal expectation of quiet
enjoyment as opposed to a busy supermarket involved here,
and the videotapes show that no violence was committed
against any customer or employee of the Winn-Dixie store.
See also Saddle West Restaurant, 269 NLRB 1027, 1042–
1043 (1984), where the Board adopted the administrative law
judge’s finding that the lack of customer complaints or com-
plaints by the restaurant, supported a finding that the dis-
criminatee had acted in a flagrantly disruptive manner so as
to lose the protection of the Act.
I, thus, conclude that the three employees, Turienzo,
Galvez, and Martin were engaged in protected activity in
their participation in the Union’s demonstration in the Winn-
Dixie store, that Respondent had knowledge of their partici-
pation in the protected activity, that Respondent had animus
against the Union and its supporters as demonstrated by its
conduct and other violations found in this decision. I find
that Respondent’s animus toward the Union and its support-
ers was a motivating factor in its decision to discharge them
in retaliation for their engagement in the protected union
activity and that the General Counsel has established a prima
facie case of violations of Section 8(a)(3) and (1) of the Act
committed by the discharge of these employees by Respon-
dent. I find Respondent has failed to rebut the prima facie
case by the preponderance of the evidence. Wright Line, 251
NLRB 1083 (1980).
D. The Suspension and Underemployment of Sales
Representative Reinaldo Bravo
On July 2, 1999, 2 days after the Union’s actions at the
Winn-Dixie Store 235, an incident occurred at Winn-Dixie
Store 366 also in Miami.
Sales Representative Reinaldo Bravo testified as follows:
He is a 10-year employee. In July 1999, he was assigned
four stores which he was responsible for serving. This in-
volves stocking the shelves allotted to Goya in four stores.
In addition to Winn-Dixie Store 366, he was assigned two La
Mia stores and a Sedano store. Salesmen are paid solely on
commission. At that time he earned a total of approximately
$900 biweekly in commissions from the four stores. On the
morning of July 2, 1999, he was preparing to stock the
shelves of the Winn-Dixie store with food products from
Goya which had been delivered to the store by a Goya driver.
Drivers deliver the food products to stores and salespersons
stock the shelves and merchandise the products. He brought
a cardboard case of Mojo sauce to the aisle in the store where
it was to be stocked. Mojo sauce is a vinegar based barbecue
sauce. Upon opening the box he discovered a rodent’s nest
on the top of the bottles with three baby rodents in it. He is
uncertain whether they were mice or rats. He called over a
Winn-Dixie employee named Enrique Trigo, who was
GOYA FOODS OF FLORIDA 1135
nearby to look at this discovery. He then closed the box and
took it back to the stock area and removed the bottles from the
box and cleaned them and placed them into an empty wooden
milk carton box and brought them back into the store and
stocked them on the shelves. He asked Store Manager Carlos
Ortega for a camera and was furnished one. He then took a
picture of the rodents. The store manager told him to get rid of
the rodents and he then put them down a storm drain. The store
manager then came to the stock area and asked where the ro-
dents were and upon being shown by Bravo, the store manager
took a photograph of one of the rodents which was floating on
the top of the storm drain. The store manager asked him where
the Mojo sauce was. Bravo told him he had stacked them on
the shelves in the store. The store manager told him to remove
them immediately. He did so and upon his return to the stock
area, he found that the manager and employee Trigo were open-
ing all the boxes of Goya product and inspecting them. He
assisted them with this. No additional rodents were discovered.
He was told not to stock any of the Goya products and to leave
everything as it was.
He left the store and called Local Union President Monica
Russo who was unavailable. Bravo was an active union adher-
ent. He subsequently called Russo again and spoke with her.
He wanted her advice as to what he should do. She directed
him to bring the photograph to her. On his way to her office he
was paged by Goya’s Miami general counsel, Carlos Ortiz, who
directed him to return immediately to Goya and bring the pho-
tograph with him. He said he would be in later and denied
having the photograph. Upon arrival at Russo’s office he asked
her for advice as he was concerned that Goya might blame him
for the incident. She directed him to return to Goya with two
union representatives, Johan Pena and Eduardo Gonzalez, for
representation and to also take with him, fellow salesman, Di-
osmin Meira as a witness in case Goya would not permit him to
have union representation. Meira had accompanied him to the
union office. He returned to Goya and was met by three Fed-
eral Food and Drug Administration (FDA) agents who inter-
viewed him but did not permit him to have a representative
present. Although he heard President Mary Ann Unanue in the
next room to the meeting room at Goya in which he was inter-
viewed, neither she nor Carlos Ortiz, who had told him to re-
turn to Goya, spoke to him. After his interview he returned to
the Winn-Dixie store and discovered that all of the Goya prod-
ucts had been picked up for return to Goya. He exchanged
greetings with the manager and left. He returned the next
morning to the Winn-Dixie store and was told by the manager
that Goya should have informed him that he was not to return
to the Winn-Dixie store.
Former President Mary Ann Unanue testified that on July 3,
1999, Winn-Dixie’s grocery merchandiser, Paul Picard, notified
her that Winn-Dixie would not accept any deliveries from Goya
until further notice and that all Goya salesmen must stay out of
South Florida’ stores. Goya notified its salesmen of this.
Bravo was notified by his supervisor of this. Prior to this
Picard had on June 30, 1999, stopped delivery of all perishable
items from the Goya facility following the finding of rodent
infestation at the Goya facility. On July 5, 1999, Bravo re-
ceived an e-mail message from Goya vice president of sales,
Jose-Maria Perez, informing him of the ban of Goya sales-
men from Winn-Dixie stores. On July 6, 1999, Bravo was
told by Perez that he could no longer service Winn-Dixie.
Perez gave him a memorandum indicating it was Winn-
Dixie’s decision. Perez suggested he not return to work the
next day. On July 7, 1999, Perez telephoned Bravo and told
him he was suspended. Bravo asked Perez the reason for his
suspension and Perez stated he did not know the reason.
Bravo remained suspended until July 12, 1999, when he was
permitted to return to work. Bravo was never informed of
the reason for his suspension. Upon his return to work on
July 12, he learned that Winn-Dixie Store 366 had been re-
moved from his route and he was reduced to servicing three
stores. Since salesmen are compensated solely on commis-
sion the loss of the Winn-Dixie store significantly reduced
his compensation from $900 biweekly to $400 to $500 bi-
weekly. Prior to the hearing in this case Respondent had
never asked Bravo anything about the Winn-Dixie incident.
Nor was he asked for a statement. It appears from the record
that Goya made no investigation into the incident but relied
solely on alleged reports received from Paul Picard who had
allegedly received them from the store manager.
On July 6, 1999, then President Mary Ann Unanue and
Vice President of Sales Jose-Maria Perez met with Picard in
a 4-hour meeting and persuaded Picard to permit the Goya
salesmen to resume the servicing of the Winn-Dixie stores
except for Bravo who was no longer permitted to service
Winn-Dixie Store 366. Perez was not called to testify.
Picard, though under subpoena, did not appear at the hearing.
Mary Ann Unanue was the only other participant in this
meeting. Her testimony sheds little light on the reason why
Bravo was barred from servicing Winn-Dixie Store 366.
When asked why Winn-Dixie had barred Bravo from Store
366, she testified, “That they just did not want him back.”
She also did not directly respond to an inquiry by counsel for
the General Counsel as to whether there was any discussion
of the reasons Picard was barring Bravo from the store dur-
ing the 4-hour meeting. She testified, “About Mr. Bravo, he
(Picard) mentioned that he did not want him back in that
store and no other Winn-Dixie store.” This record does not
support a finding as to the reason Picard ordered that Bravo
be barred from the Winn-Dixie store. Previously, Winn-
Dixie had inspected Goya’s bean and rice area and found
evidence of rodent activity and had ceased delivery of these
products for a brief period.
Part Owner Frank Unanue, the uncle of Mary Ann Una-
nue, spent considerable time at the Miami Goya warehouse
after the advent of the union campaign in 1998, whereas he
normally is in Puerto Rico where he is president of the Goya
operation there. He testified that he had “heard” from undis-
closed persons or sources that Bravo had been barred from
the Winn-Dixie store because he had left Goya product on
the aisle, thus, creating a hazardous condition and had
walked off the job. Mary Ann Unanue testified Goya refused
to assign Bravo to another store to replace the Winn-Dixie
store because she suspected him of tampering with the box of
Mojo sauce because of Picard’s report of Bravo having found
rodents in a box. Frank Unanue testified initially that Bravo
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1136
had not been reassigned another store because he was suspected
of having tampered with the box of Mojo sauce. Winn-Dixie’s
chief of security, James Brogan, testified that Bravo had been
removed from the store because he had left boxes in the aisle
creating a hazardous condition, placed the bottles of Mojo
sauce on the shelves and left the store. Brogan’s testimony was
not based on his personal observation. Bravo denied having
left the aisles in the condition above described by Frank Una-
nue and Brogan and stated he had left the store after being told
by the manager not to stock the shelves. On October 14, 1999,
the Respondent’s attorney, James Crosland, filed a position
statement with the Region in this case. As of that date the Re-
spondent had not yet received copies of the investigative report
and accompanying statements of employees in the Winn-Dixie
store as well as that of Bravo. As noted above, Mary Ann Una-
nue’s testimony did not shed any light on the reasons (if any
were given) for Picard’s barring of Bravo from the Winn-Dixie
store or its failure to reassign stores to him. However, without
any investigation having been undertaken by the Respondent,
its attorney, Crosland, asserted in the position statement that its
decision to suspend Bravo “was a direct result of (Paul) Picard
implicating Bravo in possible tampering and/or misconduct.”
However, at the time of the October 14, 1999 position state-
ment, Respondent was not in possession of the Food and Drug
Administrative (FDA), Office of Criminal Investigation, Report
of Investigation of August 20, 1999, and the accompanying
statements of witnesses. The report found that the results of
laboratory analysis were consistent with rodent activity. The
investigation failed to uncover any evidence of tampering. In a
statement taken by FDA agents of Enrique J. Trigo, a Winn-
Dixie employee of Store 366, Trigo stated that on July 2, 1999,
while he was walking to the back of the store near the receiving
area he saw Bravo with an opened box. Trigo saw the contents
of the box and observed “2 small mice pinkish in color.” He
did not observe any “nesting material in the box, however he
did notice that the cardboard dividers within the box appeared
to have been bitten, as well as a hole on the top right hand cor-
ner of the box.” In a statement taken of Goya president, Mary
Ann Unanue, by the FDA agents on July 6, 1999, she stated
that on July 5, 1999, she received a telephone call from Nicho-
las P. Alvarez Camp, Goya’s director of sales, who told her that
Warehouse Manager Sergio Bazain had found two cases of
Mojo one of which contained a mouse inside. She immediately
called the warehouse and spoke to Bazain who told her he had
been called over by Francisco Caberra, a high-low operator, to
two cases of Kirby Mojo Sauce which contained holes in the
top corner of each case with one of the holes in the boxes larger
than the other holes and which appeared to have been chewed
by a mouse. Bazain told her that while examining the case with
the chewed hole, a mouse came out and Caberra commented to
him words to the effect of, “you see, I show you what’s going
on and you guys claim that the union is doing this.” Addition-
ally, former supervisor, Jose Valdez, who is retired from Goya,
testified that there were rodent problems at the Goya facility
after Mary Ann Unanue reduced the level of pest control ser-
vices. Mary Ann Unanue was not questioned concerning this
and his testimony is thus unrebutted.
The record supports a finding that there was evidence of
rodent activity at the Goya facility as supported by the testi-
mony of retired employee Valdez and current employees
Antonio Sanchez and Sergio Tamargo and as supported by
the findings of rodent activity by DOA and by Winn-Dixie
representatives. The Union seized on this health and safety
issue and chose to publicize it as part of its overall bargain-
ing strategy on behalf of the employees. The use of the large
inflatable rat and the demonstration of July 2, 1999, were in
furtherance of the Union’s adoption of this issue. Goya’s
response to this issue was to deny that there was any rodent
problem and Mary Ann Unanue issued press releases attrib-
uting the rodent problems to others. There is little doubt
from a review of the testimony of Mary Ann and Frank Una-
nue that they contended that there were no rodent problems
at the Goya facility except that which they attributed to the
Union and its supporters. With respect to Bravo it is evident
that he was acting in support of the Union’s contention that
there were rodent problems at the Goya facility as well as his
concern for his own position, when he took the photograph
of the rodents to the union offices, rather than to the Goya
facility as demanded by Goya General Counsel Ortiz. Mary
Ann Unanue testified that she believed Bravo was acting for
“the solidarity of the group.”
Subsequently, Bravo who had depended for his livelihood
on the four stores he serviced for which he received commis-
sions, lost two more stores, thus, being reduced to one store
to service. These two stores he lost were La Mia stores
which he lost purportedly for poor performance. Bravo testi-
fied he was overheard discussing the Union with a La Mia
employee by a La Mia supervisor. After the Union filed a
charge with the Board against La Mia, it relented and wrote a
letter solicited by the Union stating that La Mia had “no ob-
jection” to Bravo’s return to service the two stores provided
he “gave 100%.” President Bob Unanue who had replaced
Mary Ann Unanue in August 1999, testified at the hearing
that the stores were not returned to Bravo because the em-
ployee who had been assigned the stores following Bravo’s
removal was doing a good job. Mary Ann Unaune and Bob
Unanue both testified that Respondent’s practice was not to
assign new stores to salespersons who were banned by the
stores.
The General Counsel and the Charging Party contend that
the Respondent violated Section 8(a)(3) and (1) of the Act by
suspension of Bravo and its failure to assign him new stores
to replace the three stores he had lost, thus, drastically reduc-
ing his income. Frank Unanue, a part owner of Goya, and a
member of the Respondent’s board of directors who made
frequent visits to Goya in Miami testified he believes that
Bravo put the rodents in the box in order to discredit Goya.
Analysis
I find the General Counsel has established a prima facie
case of a violation of the Act by reason of Respondent’s
suspension and subsequent underemployment of Bravo, by
its failure and refusal to assign him another comparable store
to replace the Winn-Dixie store he lost and by its failure and
refusal to reassign Bravo to the La Mia stores upon receipt of
GOYA FOODS OF FLORIDA 1137
the letter by La Mia. Respondent contends that it does not reas-
sign salesmen who are barred from one store to another store as
a replacement. However, a review of the testimony of former
President Mary Ann Unanue and current president, Bob Una-
nue, shows that there is no written rule in this regard and that
there has been no absolute set practice in this regard and that
some salesmen who were barred from a store were assigned
another store as a replacement. Bravo testified without contra-
diction that he was assisted by Goya management in a prior
instance with the Winn-Dixie store involving a former store
manager.
In this case it is clear that Bravo was an active union sup-
porter who brought the rodent incident to the attention of the
Union and that the Respondent had knowledge of this and that
Respondent had animus against the Union as demonstrated by
the numerous violations found in this case. A review of the
investigative reports of the Food and Drug Administration
which obtained statements from all witnesses to the incident at
Winn-Dixie discloses that there was no finding of any tamper-
ing with the box of Mojo sauce by Bravo. Indeed at least one
witness in a statement (Enrique Trigo) taken by the FDA
Agents stated that he saw holes in the cardboard box which
appeared to have been chewed by rodents. There was also
other ample evidence in this record such as the testimony of
several witnesses called by Respondent that there had been
rodent problems at Goya. I find that Respondent’s suspicions
that Bravo may have tampered with the box of Mojo sauce and
have planted the rodents in the box were insufficient to estab-
lish a reasonable belief that Bravo had in fact tampered with the
box of Mojo sauce. I have considered the evidence that Bravo
brought this to the attention of the Union and did not immedi-
ately report to Goya but delayed until he could obtain union
representation and appeared at Goya later that afternoon where
he voluntarily subjected him to questioning by the FDA.
This testimony was not rebutted by Respondent’s witnesses.
I find that Respondent’s animus toward the Union and its sup-
porters has been clearly established in this record including
Respondent’s numerous violations of the Act. Bravo was a
known union supporter who was involved in protected con-
certed activities in bringing the finding of rodents in Goya’s
product casing to the attention of the Winn-Dixie management
and to the attention of the Union. I find that Respondent’s
knowledge of Bravo’s protected concerted activities in further-
ance of the health and safety issues raised by the Union on
behalf of the Goya employees and the public was a motivating
factor in its decision to suspend him and to underemploy him
by failing to reassign him to a comparable store account to
replace the Winn-Dixie’s account he lost and by failing to reas-
sign the LaMia stores to him upon receipt of the letter signed
by La Mia. I find that the General Counsel has established a
prima facie violation of the Act by its suspension and underem-
ployment of Bravo. I find the Respondent has failed to rebut
the prima facie case by the preponderance of the evidence. Its
mere suspicion of Bravo is insufficient to establish any reason-
able basis or belief that he tampered with the product by the
introduction of rodents. Wright Line, supra, Roure Bertrand,
271 NLRB 443 (1984).
E. The 8(a)(5) and (1) Allegations
1. The denial of union representation
In early November of 1998, Warehouse Manager Bazain
approached forklift operator Alberto Turienzo, a leading
union supporter, and informed him that Respondent had re-
ceived a letter designating two employees as union delegates
to represent employees. This was shortly after the Union’s
certification in October 1998. Bazain told Turienzo that
Respondent would not recognize the delegates until there
was a signed contract and that it was possible there never
would be a contract. This testimony by Turienzo was unre-
butted as Bazain was not called to testify.
Additionally on November 2, 1998, Respondent’s attor-
ney, James Crosland, sent a letter to union organizer Johan
Pena stating that Respondent would not recognize the author-
ity of “employee representatives” to conduct any business
with it or its supervisors. The letter also stated that Respon-
dent would only authorize Pena or the union president to
bring issues to Respondent’s attention and that this must be
done only through him (Crosland). The letter further stated
that if “employee representatives abandoned their work to
represent employees they would be subject to discipline.” At
the hearing, former President Mary Ann Unanue affirmed
that this letter accurately stated Respondent’s position on the
issue.
On November 3, 1998, Reinaldo Mendoza requested un-
ion representation for a warning issued to him and this re-
quest was denied by Personnel Manager Banos who in-
formed him that Respondent did not recognize the authority
of union delegates. In the warning notice issued to Mendoza,
Bazain stated, “The Company does not recognize the author-
ity of any Goya employees to act as a delegate of the Union.”
On October 29, 1999, either Auturo Jimenez or Jesus Mar-
tin, the designated employee representatives, were rebuffed
when Respondent refused to permit them to become involved
in a personnel matter. On December 13, 1998, Respondent’s
attorney, Crosland, told the Union’s negotiator at a collec-
tive-bargaining meeting that the Respondent would not rec-
ognize union shop stewards or stewards according to the
unrebutted testimony of negotiator Rodolfo Chavez.
Analysis
I credit the foregoing testimony of the General Counsel’s
witnesses, as supported by the letter and written warning. I
find Respondent’s intransigent position in rejecting the Un-
ion’s designation of delegates, stewards, or representatives
was violative of Section 8(a)(5) and (1) of the Act. It essen-
tially ignored the certification of the Union as the collective-
bargaining representative of its employees. The obvious
effect of Respondent’s rejection of union representatives was
to place the Union in a catch-22 situation. The Union could
not designate union representatives to represent its employ-
ees until they obtained a contract permitting it to do so. Until
that happened which could be “never” according to Ware-
house Manager Bazain, the employees were effectively de-
nied union representation. Further, Crosland in his letter to
the Union set out to dictate to the Union who their represen-
tatives could be and directed that they could only raise issues
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1138
with him. The net effect of this denial of union representation
was to reverse the outcome of the election by ignoring the Un-
ion. As will be set out infra in this decision the Union followed
through with this rejection of the Union by its failure to notify
the Union of and bargain with it on mandatory subjects of bar-
gaining. It ignored the Union and instituted unilateral changes
in complete disregard of the Union’s status as the certified col-
lective-bargaining representative of the unit employees.
The right of employees to designate representatives of their
own choosing is a fundamental right under Section 7 of the Act.
It is an internal union matter and is a nonmandatory subject of
bargaining. See Howland Hook Marine Terminal Corp., 263
NLRB 453, 454 (1982); Native Textiles, 246 NLRB 228, 229
(1979); Missouri Portland Cement Co., 284 NLRB 432, 434 fn.
13 (1987); KDEN Broadcasting Co., 225 NLRB 25, 35 (1976).
2. The unilateral changes
Warehouseman Reinaldo Mendoza testified to an incident on
November 2, 1998, when he received a call from his wife who
was in medical distress. He asked Warehouse Manager Bazain
for permission to leave which was denied initially by Bazain
who confirmed the denial by calling the office. Bazain then
told Mendoza he could not leave because of new company
regulations.
Mendoza left and on November 3 or 4, 1998, he was called
to a meeting with Bazain and Maria Cristina Banos and issued a
written warning which he refused to sign until a union delegate
arrived. Banos told him Goya would not recognize any dele-
gates. This position is also set out in the warning letter. Men-
doza testified that prior to the election he had been granted
permission to leave for emergencies. Additionally, retired
Warehouse Supervisor Jose Valdez testified that after the elec-
tion he was informed by Bazain and subsequently Mary Ann
Unanue that supervisors could no longer grant employees per-
mission to leave during work hours, even for emergencies.
Union representative Pitt testified that the Union had de-
manded to be notified of any changes in wages, hours, or terms
and conditions of employment and afforded the opportunity to
bargain concerning them and had set this out in written com-
munication to the Respondent.
Analysis
I credit the unrebutted testimony of Mendoza, Valdez, and
Pitt as supported by the written documentation. I find that Re-
spondent violated Section 8(a)(5) and (1) of the Act by the
promulgation and implementation of the new rule by refusing
to notify the Union and bargain with the Union prior to its im-
plementation. It also violated Section 8(a)(3) and (1) of the Act
by the refusal to permit Mendoza to leave the facility for his
wife’s emergency and by the issuance of the written warning to
him. Boland Marine & Mfg. Co., 225 NLRB 824, 831 (1976).
3. The unilateral distribution of routes
The undisputed evidence establishes that since on or about
November 1, 1998, Respondent has unilaterally and without
affording notice to and without bargaining with the Union re-
distributed the routes of drivers who were terminated or went
on leave. The unrebutted testimony of employee Miguel Then
who was also a union bargaining committee member, estab-
lished that the routes of Domingo Villar, Carlos Gonzalez,
Mario Robinson, Rolando Aguiar, and Llamil Yema were all
distributed to other employees or in one case to a temporary
agency employee without any notification to the Union.
Respondent’s witnesses, former President Mary Ann Una-
nue and current President Bob Unanue both conceded that
Respondent assigned routes without notifying or bargaining
with the Union. Respondent contends it had the unfettered
right to assign routes without regard to the existence of the
Union based on past practice and inherent management
rights. In Respondent’s attorney, Crosland’s, letter of No-
vember 2, 1996, he states, “As you know (or should know), it
is the Company’s prerogative to determine routes . . . .”
“[S]hould the Union make any proposals regarding routes,
the Company will consider them . . . unless and until that
occurs, there is nothing to discuss at this time.” Mary Ann
Unanue testified, that she had “never asked permission to
assign routes before and it wasn’t in her to talk to anybody
about how to assign a route to a salesman or a truck driver.
It just never happened.” Bob Unanue testified that in De-
cember 1999, when Tomas Hernandez retired he did not
notify the Union of this and that it had not even crossed his
mind to do so.
Analysis
It is clear from the record as in the case of the other unilat-
eral changes that the Union was ignored and Respondent
continued to operate its business as if the employees were
not represented by the Union.
Allocation of work is a mandatory subject of bargaining.
University of Pittsburgh Medical Center, 325 NLRB 443
(1998); Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021, 1022–1023 (1994), enfd. as modified 87 F.3d 1363,
1368–1371 (D.C. Cir. 1996). Respondent has a duty to no-
tify and bargain to impasse with the Union prior to imple-
menting a change. NLRB v. Katz, 369 U.S. 736 (1962) Re-
spondent’s reliance on past practice is misplaced as there was
clearly no automatic or routine practice with objective crite-
ria used in the assignment of routes. Rather Respondent
exercised unlimited discretion in assigning routes. I find that
Respondent violated Section 8(a)(5) and (1) of the Act by its
failure to notify and bargain with the Union concerning the
assignment of routes which was a mandatory subject of bar-
gaining. Eugene Iovine, Inc., 328 NLRB 294 (1999). There
was no evidence presented to establish that the assignment of
routes was such an extraordinary event posing a major effect
on the Respondent and requiring immediate action such as to
excuse it from its bargaining obligation. RBE Electronics of
S. D., 320 NLRB 80 (1995); Hankins Lumber Co., 316
NLRB 837, 838 (1995).
4. The unilateral assignment of newly acquired business or
reassignment of old business to the sales representatives
The record reflects and I find that after the certification of
the Union as the collective-bargaining representative of the
unit of salesmen and merchandisers, the Respondent com-
pletely failed to notify and bargain with the Union concern-
ing the assignment of newly acquired business or the reas-
signment of old business to its sales representatives. The
GOYA FOODS OF FLORIDA 1139
assignment of stores to the salesmen vitally impacted their
earnings which were based totally on commission. As was
noted in the unrebutted testimony of Bravo, supra, his loss of
the single Winn-Dixie store which was only one of four stores
which he serviced, resulted in a reduction in his annual earnings
of 44 to 55 percent. According to the unrebutted testimony of
Juan Carlos Gonzalez as supported by the documentary evi-
dence, Respondent added at least 10 to 50 new stores to its
customer base. Gonzalez specifically testified concerning a
new Winn-Dixie in the Duval area of Miami a BJ store 509, a
Publix 715, a Sedano 26, a Wal-Mart in Naranja, close to Key
West, a President supermarket in Broward, a Wal-Mart in Pem-
brooke Pines, a Winn-Dixie on 36th Street and 137th Avenue
(in Miami), a Winn-Dixie on 12th Avenue and 12th Street (in
Miami), a Publix on 97th Avenue N.W. and 41st Street (in
Miami). Bravo testified that in November 1999, President Bob
Unanue announced at a sales meeting that Goya had acquired
two new Wal-Mart accounts, one in Florida City and the other
in Hialeah.
In his letter of June 9, 1999, to Union Representative Mark
Pitt, Respondent’s attorney, Crosland, stated, “Historically, all
aspects of the selection, assignment and reassignment of routes
have been within the sole discretion of Goya customer service
needs and requirements. Assessment of salesmen, routes and
territories, and location of stores are the primary considerations
in making such assignments. There are no written criteria. The
Company of course is willing to discuss the Union’s concerns
regarding the assignment and reassignment of routes. However
you should understand that the Company considers that these
rights are and should remain management prerogatives.” For-
mer President Mary Ann Unanue testified she had to run her
business, and had never asked permission to assign routes.
I find that Respondent violated Section 8(a)(5) and (1) of the
Act by its refusal to notify and bargain with the Union about
the assignment of routes to salesmen just as in the case of the
assignment of routes to drivers discussed above. As the Gen-
eral Counsel contends, the assignment of routes to salesmen
would be even less of an economic exigency because of the
greater lead time of notice of the Respondent of store openings
and acquisition of new accounts.
5. The unilateral increase in the number of temporary
employees employed as drivers and the diversion of
bargaining unit work to them
The unequivocal evidence clearly demonstrates that since
about December 7, 1998, following the certification of the Un-
ion, Respondent increased the number of temporary employees
employed as drivers and diverted bargaining unit work to them.
Whereas only 16 drivers were hired between December 27,
1997, and December 7, 1998, 27 drivers were hired between
December 8, 1998, and December 3, 1999. Then testified that
prior to the certification of the Union in November 1998, the
Respondent used only three temporary drivers on a regular
basis but it has since November 1998 employed six to eight
temporary drivers on a regular basis. Union Representative
Mark Pitt testified that on three or four occasions he directly
requested of Respondent’s attorney, James Crosland, that the
Union be notified about any and all changes that would impact
the wages, hours, and working conditions of unit employees.
He also reduced this demand to writing in a letter dated De-
cember 21, 1998. Pitt testified that Crosland told him the
Company required temporary employees to run the business
and “that is what they were going to do.” Pitt also testified
that throughout bargaining, Crosland contended that it had
the right to make these unilateral changes on the ground that
it was permitted to do so because it was merely status quo,
past practice, or historical management rights.
Analysis
I credit the unrebutted testimony of Then and Pitt as set
out above. It is clear that Respondent routinely bypassed the
Union and instituted unilateral changes at will. It is undis-
puted that it did so without regard to its obligations to bar-
gain. Respondent’s basic position appears to be that it can
continue to operate as if the Union did not exist on the basis
of asserted past practice. While it could lawfully have con-
tinued to maintain the status quo by continuing to assign the
same work to temporary employees, it could not lawfully
unilaterally remove additional bargaining unit work from the
unit by disproportionately increasing the number of tempo-
rary employees and assigning additional bargaining unit
work to these temporary employees, University of Pittsburgh
Medical Center, supra. An employer must notify and offer
to bargain with a union about removal of bargaining unit
work prior to assigning it to nonunit positions. Hampton
House, 317 NLRB 1005 (1995).
It is clear that Goya’s unilateral hire of additional tempo-
rary workers after the election deprived bargaining unit em-
ployees of bargaining unit work which had a significant im-
pact on the bargaining unit employees.
I find that Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally and disproportionately increasing the
number of temporary employees hired as drivers and divert-
ing bargaining unit work without notifying the Union and
affording the Union an opportunity to bargain.
6. The unilateral discontinuation of the policy of permitting
employees to take home their company provided radiophones
Respondent had a policy of permitting certain employees
to take company provided cellular phones home with them
and to connect the phones to their personal cellular phone
accounts. Following a strike on January 28, 1999, it in-
structed these employees to leave these phones at the facility
after the end of the day thus eliminating a substantial benefit
which had been used by some of the employees. Employee
Rodolfo Chavez testified that as a result of Respondent’s
elimination of this benefit he purchased a comparable phone
for $160 and that his new rate was $30 more per month.
Mary Ann Unanue testified that the purpose for the cellular
phones was to enable Goya to communicate with certain of
its employees while they were on the road during the work-
day. Following the strike she decided to discontinue the
personal use of the phones because she concluded that the
Company could lose the ability to communicate with its em-
ployees who went on strike and retained the phone.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1140
Analysis
I find Respondent violated Section 8(a)(5) and (1) of the Act
by the unilateral discontinuance of the personal cellular phone
privilege. Although arguably, Mary Ann Unanue may have had
good reason for instituting the change, this did not excuse Re-
spondent from its statutory obligation to provide notice to the
Union and an opportunity to bargain prior to unilaterally mak-
ing a change in the employees’ terms and conditions of em-
ployment Boland Marine & Mfg. Co., supra. This benefit was
substantial and was a mandatory subject of bargaining. Doefer
Engineering, 315 NLRB 1137 (1994).
7. The disaffection petitions and Respondents
withdrawals of recognition
The Union was certified as the collective-bargaining repre-
sentative of employees in the warehouse and drivers unit on
October 26, 1998, and of employees in the sales and merchan-
disers unit on December 26, 1998. During the course of a year
support for the Union which had once been strong, waned as a
result of the Union’s apparent inability to protect the employees
in the two units from the onslaught of the multiple violations of
Section 8(a)(1), the 8(a)(3) and (1) discharges of Turienzo,
Galvez, and Martin, and the suspension and underemployment
of Bravo, and 8(a)(5) and (1) violations by Respondent’s re-
fusal to permit the employees representation by freely chosen
union representatives and the continuing implementation of
unilateral changes in the unit employees’ terms and conditions
of employment without notice to the Union and opportunity for
bargaining prior to the implementation of the changes and the
lack of a labor agreement. The Union and the Respondent met
only a total of 12 times in almost a year, 8 times for the ware-
house and drivers unit and 4 times for the salesmen and mer-
chandisers unit. Organizer Pena and Union Representative Pitt
testified that they protested the limited scheduling of meetings
by a month or more apart.
On December 7, 1999, Respondent’s attorney, Crosland, sent
a letter to Pitt stating:
Dear Mr. Pitt:
Our client Goya Foods of Florida, has a good faith
doubt that your union continues to enjoy a majority repre-
sentative status as to the Company’s sales representatives.
Our client, therefore, no longer has an obligation to bar-
gain with your union. Accordingly, please be advised that
we are canceling the bargaining session scheduled for De-
cember 17, 1999.
Very Truly Yours,
/s/ James Crosland
On December 20, 1999, Crosland sent a similar letter to Pitt
withdrawing recognition from the Union with respect to the
warehouse and drivers unit.
These withdrawals of recognition were based on a disaffec-
tion petition received by Respondent on December 7, 1999, for
the sales unit and a disaffection petition received by Respon-
dent on December 15, 1999, for the warehouse and drivers unit.
As of December 15, 1999, 44 of 62 employees in the sales
unit had signed the petition. As of December 5, 1999, 26 of 38
employees in the warehouse and drivers unit had signed the
petition.
On or about January 23, 2000, a petition in support of the
Union was signed by 23 of the 38 employees in the ware-
house and drivers unit. A few days later, this petition in
support of the Union was delivered to Warehouse Operations
Manager Sergio Bazain.
Analysis
I find that the Respondent’s withdrawals of recognition
from the Union in both units were violative of Section
8(a)(5) and (1) of the Act as the disaffection petitions were
the direct result of the lengthy course of unfair labor prac-
tices engaged in by Respondent which resulted in a corre-
sponding loss of support for the Union which was deemed
ineffectual to protect the employees and improve their terms
and conditions of employment. I also find that the with-
drawal of recognition from the Union for the sales unit was a
violation of Section 8(a)(5) and (1) of the Act as this with-
drawal occurred prior to the expiration of the certification
year.
As the record shows the Respondent withdrew recognition
from the Union as to sales and merchandisers’ unit employ-
ees on December 7, 1999. The Union had been certified as
the collective-bargaining representative of the employees in
the sales and merchandisers’ unit on December 4, 1998. The
Respondent withdrew recognition from the Union as to the
warehouse and drivers unit employees on December 20,
1999, which was after the certification year as the Union was
certified with respect to this unit on October 26, 1998. The
“Board has long held that a certified union’s majority status
ordinarily cannot be challenged for a period of one year.”
Chelsea Industries, 331 NLRB 1648 (2000), citing Centr-O-
Cast & Engineering, 100 NLRB 1507, 1508 (1952); Ray
Brooks v. NLRB, 348 U.S. 96 (1954). In the recent case of
Chelsea Industries, supra, the Board held that an employer
does not have “the right, after expiration of the certification
year, to withdraw recognition from a union on the basis of an
antiunion petition circulated and presented to the employer
during the certification year.” I conclude that the Respon-
dent’s withdrawal of recognition from the Union for the sales
unit was unlawful as the petition was circulated during the
certification year. I conclude that the Respondent’s with-
drawal from the warehouse unit occurred after the expiration
of the certification year.
Several employees testified they were discouraged by the
terminations of Turienzo, Galvez, and Martin. Bravo’s loss
of client stores was also a matter of concern. Clearly, the
withdrawals of recognition did not occur “in a context free of
unfair labor practices of the sort, likely, under all the circum-
stances, to affect the union’s status, cause employee disaffec-
tion, or improperly affect the bargaining relationship itself.”
Lee Lumber & Building Material Corp., 322 NLRB 175, 177
(1996); Wire Products Mfg. Corp., 326 NLRB 625, 627
(1998); Tocco, Inc., 326 NLRB 1279 (1998); Pirelli Cable
Corp., 323 NLRB 1009, 1010 (1997); Vicent Industrial Plas-
tics, 328 NLRB 300 (1999); Catalina Pacific Concrete Co.,
GOYA FOODS OF FLORIDA 1141
330 NLRB 144 (1999); Scott Brs. Dairy, 332 NLRB 1542
(2000).
I also find that the decertification petitions were tainted by
the Respondent’s involvement in their circulation. Exxel-
Atmos, Inc., 323 NLRB 884 (1997). In the case of the ware-
house unit there was direct evidence through the unrebutted
testimony of former temporary employees supervisor, Daniel
Acuna. He testified that in November or December 1999,
Warehouse Manager Sergio Bazain directed him to retrieve a
letter on his desk and give it to a warehouse employee. He
identified the letter as the warehouse disaffection petition. He
took the letter to warehouse employee, Marcel Viera, who
signed it. He then returned the letter to Bazain’s office and
gave it to Goya President Bob Unanue. He heard Bob Unanue
talking on the phone with Bazain and stating that another em-
ployee needed to sign it. He then volunteered and took the
letter to the other employee (referred to as the “old man”) for
his signature.
With respect to the circulation of the disaffection petition
among the salesmen, the evidence showed that in August 1999,
a group of salesmen approached management with an interest
in how to get rid of the Union. In a subsequent meeting with
Frank, Bob Unanue, and Crosland, Bob Unanue told the em-
ployees they could draft a petition for signature of the sales
employees. Crosland told them that if they got enough signa-
tures, they could take it to the NLRB to start the process.
Salesman Carlos Galvez who was on the disaffection commit-
tee used office copy machines and circulated the petition on
work time. I thus find that the evidence establishes that Re-
spondent’s management was involved in the promotion and
assistance of the salesman’s circulation of the disaffection peti-
tion Beverly California Corp., 326 NLRB 232 (1998).
In view of the foregoing findings of the unlawful withdrawal
of recognition, I find it unnecessary to decide whether the past
disaffection petition show of support in the warehouse and
drivers unit was sufficient to deprive the Respondent of the
privilege of withdrawing recognition from the Union. I find
Respondent violated Section 8(a)(5) and (1) of the Act by its
withdrawal of recognition from the Union with respect to both
employee units.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by en-
gaging in unlawful interrogation, solicitation of grievances with
the promise to remedy them, and issuance of unlawful threats to
employees as found above.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
its suspension and underemployment of its employee Reinaldo
Bravo.
5. Respondent violated Section 8(a)(3) and (1) of the Act by
its discharge of its employees Alberto Turienzo, Humberto
Galvaz, and Jesus Martin.
6. Respondent violated Section 8(a)(3) and (1) of the Act by
the issuance of a written warning to Renaldo Mendoza.
7. Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to permit union designated representatives to
represent its employees in the appropriate units and by its
implementation of several unilateral changes in the terms and
conditions of employment of the employees in the appropri-
ate units without notifying the Union of the changes and
affording the Union an opportunity to bargain concerning
these changes.
8. The Respondent unlawfully withdrew recognition from
the Union with respect to both units.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in viola-
tions of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tions to effectuate the purposes and policies of the Act and
post the appropriate notice.
It is recommended that Respondent offer immediate rein-
statement to Alberto Turienzo, Humberto Galvez, and Jesus
Martin to their former positions or to substantially equivalent
ones if their former positions no longer exist, and restore to
Reinaldo Bravo the level of customer accounts he serviced
prior to July 2, 1999. The above employees (Turienzo,
Galvez, Martin, and Bravo) shall be made whole for all loss
of backpay and benefits sustained by them as a result of Re-
spondent’s unlawful discharge of Turienzo, Galvez, and
Martin and its failure to reinstate them and by its suspension
of Bravo and failure to restore to Bravo the level of customer
accounts he serviced prior to July 2, 1999. Respondent shall
also remove the written warning from the files of Reinaldo
Mendoza.
Respondent shall be ordered to make the unit employees
in both certified units whole for any loss of wages or benefits
they may have suffered as a result of Respondent’s unlawful
unilateral actions. Respondent shall also be ordered to rec-
ognize, and upon request, within 10 days of the request, meet
and bargain in good faith with the Union as the exclusive
collective-bargaining representative of its employees in the
two certified collective bargaining units and if an under-
standing is reached, embody it in a signed agreement. Raven
Government Services, 331 NLRB 651 (2000). Respondent
shall also be ordered upon the Union’s request to rescind any
unilaterally implemented changes it made in the terms and
conditions of employment of unit employees since Novem-
ber 3, 1999, provided that Respondent shall not be required
to cancel any favorable changes the Union wishes to leave in
place. Respondent shall also be ordered to, upon the Union’s
request, meet and adjust grievances with the Union’s desig-
nated representatives for collective bargaining or grievance
adjustment purposes, including its employee representatives.
All backpay and benefits shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987), at the “short term Federal rate” for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1142
the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621.
[Recommended Order omitted from publication.]