Industria Lechera De Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1075 (N.L.R.B. 2005)

INDUSTRIA LECHERA DE PUERTO RICO, INC. (INDULAC, INC.)
344 NLRB No. 133
1075
Industria Lechera De Puerto Rico, Inc. (Indulac, Inc.)
and Congreso De Uniones Industriales De
Puerto Rico. Case 24–CA–9591
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 18, 2004, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, and to adopt the recommended
Order as modified and set forth in full below.1
In adopting the judge’s decision finding that the Re-
spondent violated Section 8(a)(5) and (1) by unilaterally
transferring employee Jose del Valle from the second
shift to the first shift, we also rely on US Airways, Inc. v.
Barnett, 535 U.S. 391 (2002). The Supreme Court’s
Barnett decision undercuts the Respondent’s argument
that it was privileged to act unilaterally because it was
required to provide del Valle a “reasonable accommoda-
tion” under the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. § 12101 et seq. In Barnett, the Su-
preme Court concluded that, absent special circum-
stances, the ADA does not require an employer to assign
a disabled employee to a particular position when the
assignment would violate the employer’s “established
seniority system.” 535 U.S. at 406. Here, the Respon-
dent transferred del Valle to the first shift—the shift most
desired by the Respondent’s employees—after receiving
a letter from del Valle’s physician stating that del Valle
should be transferred to that shift because he was taking
medication at night that might cause him to endanger his
coworkers. Without notifying the Union or providing it
an opportunity to bargain, the Respondent implemented
the transfer, even though it maintained a seniority system
governing shift assignments, and there was another sec-
ond shift employee who was more senior than del Valle.
Particularly in light of Barnett, we find no merit in the
Respondent’s argument that its unilateral transfer of del
Valle was required under the ADA.2

1 We have modified the judge’s recommended Order and notice to
employees to correspond to the violation found and to more closely
conform to the standard language for our remedial provisions. See
Mimbres Memorial Hospital, 337 NLRB 998, 999 (2002), enfd. 108
Fed. Appx. 577 (10th Cir. 2004).
2 Further, in adopting the judge’s finding that the Respondent’s uni-
lateral transfer of del Valle was unlawful, we do not rely on the judge’s
suggestion that, instead of transferring to the first shift, del Valle could
The Court’s finding that the ADA does not require uni-
lateral abrogation of seniority systems, absent special
circumstances, is fatal to the Respondent’s use of the
ADA as a defense here. In Hoffman Plastic Compounds
v. NLRB, 535 U.S. 137, 144 (2002), the Court stated that
“where the Board’s chosen remedy trenches upon a fed-
eral statute or policy outside the Board’s competence to
administer, the Board’s remedy may be required to
yield.” Consistent with the principles stated in the
Court’s decision in Barnett, no such trenching is occa-
sioned by the enforcement of the National Labor Rela-
tions Act (NLRA) here to prohibit the Respondent from
unilaterally contravening its seniority system. In Hoff-
man, the Court was concerned that the employer’s com-
pliance with the Board’s order would require the em-
ployer to violate another Federal statute—the Immigra-
tion Reform and Control Act. Unlike the employer in
Hoffman, however, the Respondent’s compliance with
the Board’s Order will not require it to violate the ADA.
See generally Watsonville Register-Pajaronian, 327
NLRB 957, 958–959 (1999).3 The NLRA requires only
that the Respondent bargain with the Union before mak-
ing the change of the seniority system to accommodate
del Valle. After bargaining to a good-faith impasse or
agreement on the change, the Respondent is free to make
the change.4 Concededly, under the Board’s Order, the
Respondent must restore the status quo ante, pending
such bargaining. However, as discussed, such compli-
ance will not result in a violation of the ADA.
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, Industria Lechera de Puerto Rico, Inc. (In-
dulac, Inc.), Hato Rey, Puerto Rico, its officers, agents,
successors, and assigns, shall

have taken his medication during the day and continued to work on the
second shift.
In the absence of exceptions, we adopt the judge’s finding that the
Respondent did not violate Sec. 8(a)(5) and (1) by refusing to provide
the Union with medical documentation concerning del Valle’s disabil-
ity.
3 Member Schaumber finds it unnecessary to rely on the citation to
Watsonville Register-Pajaronian, 327 NLRB 957 (1999).
4 Member Schaumber agrees with the judge that the Respondent vio-
lated Sec. 8(a)(5) by transferring del Valle from the night shift without
providing the Union with notice and an opportunity to bargain. He
does not reach the question whether, having provided the requisite
notice and opportunity to bargain, the Respondent would have addi-
tionally been required to negotiate to impasse or agreement before
making the change. Further, Member Schaumber observes that the
Respondent appears to have believed in good faith that it was acting
responsibly in making the unilateral change, although such good faith is
not a defense under the circumstances of this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
1. Cease and desist from
(a) Unilaterally transferring employees from one shift
to another without giving notice to and an opportunity to
bargain over such transfers to the Congreso de Uniones
Industriales de Puerto Rico (the Union).
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following appropriate unit:
All production and maintenance employees employed
by the Respondent at its plant in Hato Rey, Puerto
Rico, including chauffeurs and chauffeur helpers; ex-
cluding office clerical employees, administrative and
executive employees, guards and supervisors as defined
in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Hato Rey, Puerto Rico, copies of the at-
tached notice, both in English and Spanish, marked “Ap-
pendix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 24, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
is own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since March 4, 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply
with this Order.
APPENDIX
NOTICE TO EMPLOYEES

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unilaterally transfer employees from one
shift to another without giving notice and an opportunity
to bargain over such transfers to the Congreso de Un-
iones Industriales de Puerto Rico (the Union).
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our
employees in the following bargaining unit:
All production and maintenance employees employed
by the Respondent at its plant in Hato Rey, Puerto
Rico, including chauffeurs and chauffeur helpers; ex-
cluding office clerical employees, administrative and
executive employees, guards and supervisors as defined
in the Act.
INDUSTRIA LECHERA DE PUERTO RICO, INC.
(INDULAC, INC.)
Venesa Garcia, Esq., for the Government.1
Fernando A. Baerga Ibanez, Esq., for the Company.2
Jose Alberto Figueroa, President, for the Union.3
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The Gov-
ernment alleges the Company, since on or about March 4, 2003,
has failed and refused to bargain in good faith with the Union
as the admittedly exclusive collective-bargaining representative
for a unit (Unit) of its production and maintenance employees,
chauffeurs, and chauffeur helpers.4

1 I shall refer to counsel for General Counsel as the Government
2 I shall refer to the Respondent as the Company.
3 I shall refer to the Charging party as the Union.
4 This trial was held in San Juan, Puerto Rico, on December 10,
2003, based upon a charge and amended charge filed by the Union on
INDUSTRIA LECHERA DE PUERTO RICO, INC. (INDULAC, INC.) 1077
Allegations
Specifically, the Government alleges the Company, on or
about March 4, 2003, unilaterally transferred its unit employee
Jose del Valle from the night to day shift without prior notice to
the Union and without affording the Union an opportunity to
bargain with it with respect thereto or the effects thereof on the
bargaining unit. The Government alleges the transfer relates to
terms and conditions of employment for bargaining unit em-
ployees and is a mandatory bargaining subject. The Govern-
ment also alleges that on or about March 4, 2003, the Union
requested the Company furnish it with information regarding
the transfer. It is alleged the information is necessary for, and
relevant to, the Union's performance of its duties as the exclu-
sive collective-bargaining representative of the unit employees
and that the Company has failed and refused to provide the
information. It is alleged the above actions of the Company
violate Section 8(a)(5) and (1) of the National Labor Relations
Act (Act).
The Company admits that the Board's jurisdiction is prop-
erly invoked5 and that the Union6 is a labor organization within
the meaning of the Act. The Company, however, denies having
violated the Act in any manner alleged in the complaint. The
Company states bargaining unit employee Jose del Valle re-
quested a reasonable accommodation within the meaning of the
Americans with Disabilities Act of 1990. In doing so, Jose del
Valle's doctor requested he be transferred from the night to the
day shift. The Company asserts it had no position on the day
shift for Jose del Valle at the time of his request. The Company
asserts it created a position on the first shift to accommodate
Jose del Valle and as such did not transfer him to any then ex-
isting unit position on that shift. According to the Company,
positions on work shifts have traditionally been determined by
seniority.
The Company asserts it could not, and did not, provide the
Union with the information requested regarding its decision to
grant Jose del Valle a transfer because its decision was based
solely on Jose del Valle's doctor's written (1 page) medical
report. The Company asserts the Americans with Disabilities
Act forbids the release of information regarding the actual ill-
ness of an individual seeking accommodation or any medica-
tion prescribed for the individual. The Company asserts it of-
fered to provide the requested 1 page medical document to the
Union if the Union obtained a release from Jose del Valle.7
I have studied the whole record, the briefs filed by the Gov-
ernment and the Company, and the authorities they rely on.

May 12 and July 31, 2003, respectively. The Government issued the
complaint and Notice of Hearing on August 29, 2003.
5 The Company admits that annually it purchases and receives at its
Hato Rey, Puerto Rico location, goods and materials valued in excess
of $50,000 directly from points located outside the Commonwealth of
Puerto Rico. The Company admits, the evidence establishes, and I find
it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
6 I find the Union is a labor organization within the meaning of Sec-
tion 2(5) or the Act.
7 The Company provided the Government, pursuant to subpoena, a
copy of the actual 1 page medical document in question with references
to the illness and medication redacted therefrom.
Based on more detailed findings and analysis below, I conclude
and find the Company violated the Act by unilaterally transfer-
ring its employee Jose del Valle from the night to day shift
without prior notice to the Union and without affording the
Union an opportunity to bargain with respect thereto and the
effects of this conduct. I find the Company did not violate the
Act when it refused, in the manner it did, to provide the Union
with the information regarding Jose del Valle's transfer from
the night to day shift.
FINDINGS OF FACT8
I. OVERVIEW
The Company processes surplus "over produced" milk, but-
ter, and cheese which it then sells. The business is somewhat
seasonal. The Company, at seasonal times, employs approxi-
mately 90 unit employees on three fixed shifts. The first shift is
from 6 a.m. until 3 p.m.; the second shift from 3 p.m. until mid-
night and the third shift from 9 p.m. until 6 a.m. Employees
prefer the first shift. Pertinent to this case the Company em-
ploys production and maintenance employees serving as ma-
chine operators such as Jose del Valle.
The Union has been the certified exclusive collective-
bargaining representative for the unit employees since July 3,
2002. The Union and Company are negotiating toward an ini-
tial collective-bargaining agreement. The Unit employees were
represented in the past by Seafarers International Union. The
Company's and Seafarers International Union's most recent
collective-bargaining agreement for the Unit employees expired
in May 2003. Jose del Valle was a Unit Union shop steward
for the Seafarers International Union.
The parties stipulated the Company transferred its em-
ployee, Jose del Valle, from the night to day shift, on March 4,
2003, and further stipulated the Company's past practice re-
garding work shift assignments has been, and continues to be,
dependent on employees' plant seniority. The parties also stipu-
lated that at the time of Jose del Valle's transfer there was a unit
employee on the night shift more senior than he. It is acknowl-
edged Jose del Valle only worked on the first shift position he
was transferred to until June 2003. Additional positions were
reopened on the first shift in June 2003 to process cheese. Jose
del Valle bid for and was awarded, by seniority, one of the
reopened positions.
Jose Alberto Figueroa is President of the Union, unit em-
ployees Juan Hernandez and Jines Arias are union shop stew-
ards and Pedro Trinidad is Company Operations Director.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Further Facts
As outlined above and more fully set forth here, unit em-
ployee Jose del Valle requested on or about February 26, 2003,
a reasonable accommodation from the Company because of
health concerns. Jose del Valle provided the Company a medi-

8 The essential facts are not significantly disputed. Unless I note oth-
erwise, my findings are based on admitted or stipulated facts, documen-
tary exhibits, or undisputed and credible testimony. Specific reference
has from time to time been made to the particular witness providing
certain facts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
cal document signed by Psychiatrist Doctor Emma Negron,
M.D. dated February 26, 2003, in which it was recommended
he be reassigned from the night to day shift in that he was on
controlled medication at night that could affect his perform-
ance.
Company Operations Director Trinidad reviewed Jose del
Valle's medical document checking the "letterhead" "address
and telephone number" and ensuring a physician had signed it.
Trinidad explained management officials were not doctors, and
in cases with medical recommendations, did not try to second-
guess or question a doctor's recommendations.
Company Operations Director Trinidad testified he accom-
modated Jose del Valle because del Valle's physician stated he
was "under medication at night and this could constitute a dan-
ger for other employees." Trinidad explained it was his "obliga-
tion as employer to immediately transfer ... [Jose del Valle] ...
to another position with lesser danger presented to his co-
workers." Trinidad also explained no vacancy existed on the
first shift as of March 3, 2003, so he created a position on that
shift to accommodate Jose del Valle. In creating the new first
shift position Trinidad pointed out that "no employee on first
shift was displaced." Trinidad acknowledged there was one
employee on second shift that had "a couple of days more"
seniority than Jose del Valle.
Pursuant to the request for accommodation and manage-
ment's creating a position on first shift, Jose del Valle com-
menced working that shift on March 4, 2003.
Union President Figueroa had a previously arranged meet-
ing with the Company for March 4, 2003, "in order to discuss a
series of cases that were pending" at that time between the par-
ties. The meeting took place on that date with Figueroa, and
seven union stewards and/or unit employees meeting with
Company Operations Director Trinidad. Figueroa told Trinidad
a claim had been made on behalf of the second shift employees
regarding Jose del Valle's transfer from the second to first shift.
Second shift union steward Jines Arias asked Trinidad for an
explanation of the transfer. Arias wanted to know if the reasons
for the transfer were "really valid" because the transfer was
affecting seniority rights regarding second shift employees
seeking to work first shift. Union President Figueroa cautioned
Arias that he was "presenting serious accusations" that "could
bring forth problems." Arias said he only needed some answers
from the Company so he could explain to the unit employees
why Jose del Valle was transferred to first shift and he assured
everyone he was not accusing anyone of anything at that time.
Trinidad testified Arias told him "it was his understanding
that [Jose del Valle] was not sick that he had nothing." Trinidad
said he told Arias "these are your comments." Trinidad said he
explained to Arias that Jose del Valle had "requested a reason-
able accommodation according to the ADA and he had medical
records" to support his request. Trinidad said Arias "insisted on
seeing the documents and the evidence, the proof." Trinidad
testified he suggested to Arias that if he wanted to see the
medical document he should negotiate with the employees, go
to Jose del Valle and "allow the employee to authorize him to
look at these documents." According to Trinidad the portion of
the meeting dealing with Jose del Valle ended shortly thereafter
and he never heard about the transfer until the underlying
charge herein was filed.
Union President Figueroa testified that at the time he re-
quested a copy of Jose del Valle's medical document Trinidad
told him he needed to get legal counsel regarding whether he
could provide the document and would get back with Figueroa.
Figueroa explained the Union needed the medical document "to
corroborate or verify if indeed the medical certificate was to
validate the change from second shift to first shift." Figueroa
specifically denied Trinidad told him or the Union they needed
to get a waiver from Jose del Valle to obtain the requested
medical document. Employee Juan Hernandez testified Trini-
dad declined to give them the requested document because he
needed "to get advice from his attorneys" and that "he would ...
get back with us," and added "nothing else" was said.
The document sought by the Union and not provided by the
Company was provided (in redacted form) to the Government
pursuant to a subpoena. The redacted medical document was
received in evidence and follows:
Instituto Panamericano
Manati, Puerto Rico
February 26, 2003
TO WHOM IT MAY CONCERN:
By the present we are certifying that Jose Del Valle-Colon,
was/is under treatment at the Instituto Panamericano de
Manati.
February 14, 2003 to February 26, 2002 and was hospitalized
in Cidra from February 11, 2003 to February 14, 2003. A
change in shift is recommended, during the day since he is on
controlled medication at night that could affect his perform-
ance.
For any additional information, please call us at 854-0001 -
854-1471.
Very truly yours, (_____________________at
night _________________,
[Signed] _________________ at night,
Emma Negron, MD 111539 at night _________________.)
Psychiatrist

*The patient will continue ambulatory treatment and can
return to work March 3, 2003.
Carretera 2 Km. 46.1 Bo. Campo Alegre, Manati, P.R. 00674
(787) 854-0001 Fax: (787) 854-0030
Union President Figueroa testified he also requested the
medical document in a letter directed to Company Operations
Director Trinidad dated March 20, 2003. Figueroa testified he
also requested in his letter that the parties meet to discuss Jose
del Valle's transfer. Figueroa asserts the letter was sent by mail
and facsimile on March 20, 2003. Figueroa testified the Com-
pany has never at any time provided the document nor did the
Company notify the Union, prior to Jose del Valle's transfer,
that he was being transferred.
Company Operations Director Trinidad testified he had not
seen, nor was he aware of, the Union's March 20, 2003 letter
INDUSTRIA LECHERA DE PUERTO RICO, INC. (INDULAC, INC.) 1079
until the trial herein. Trinidad testified specifically that no re-
quest for information was made by the Union after the March 4,
2003 meeting. Trinidad explained he did not notify the Union
prior to creating the position on first shift:
because the rights of the employees in issue were not affected,
because that was a special situation a temporary situation, in
which I wanted to follow his physician's recommendations
and above all, protect the safety and integrity of the rest of the
employees.
Based upon testimonial demeanor, I credit the testimony of
Trinidad, over that of Figueroa and Hernandez, regarding their
meeting on March 4, 2003, pertaining to the transfer of Jose del
Valle. I specifically credit Trinadad's testimony that he sug-
gested to the Union they might obtain a waiver from Jose del
Valle in order to obtain the medical documents. I am not per-
suaded the Government established the Union sent the Com-
pany the letter requesting information and bargaining on March
20, 2003, that the Union asserts was sent. First, Trinidad denied
receiving the letter. Second, the Government provided no proof
of service by mail nor any independent verification of the letter
being sent by facsimile. I note also Figueroa acknowledged he
did not see nor sign, but authorized, the letter to be signed on
his behalf. The individual at the union who assertedly prepared,
addressed, signed, and deposited the letter with the postal ser-
vice and/or sent the letter by facsimile was not called to testify
by the Government or Union. Under these circumstances, I find
the failure to produce any direct evidence the letter was actually
sent by any means calls into question the existence of the letter
at the time the letter is asserted to have been authorized, cre-
ated, and sent.
B. Positions of the Parties Unilateral Changes
Government counsel notes it is not disputed that the Com-
pany created a first shift position and transferred Jose del Valle
to it, on or about March 4, 2003, without notification to or bar-
gaining with the Union. Government counsel contends transfer-
ring an employee from one shift to another relates to terms and
working conditions of unit employees and as such is a manda-
tory subject for bargaining. Government counsel asserts the
Board has consistently found work schedules and hours to be
worked are mandatory bargaining subjects. Government coun-
sel notes the Company's past practice regarding work shift as-
signments has been, and continues to be, dependent on the unit
employees' seniority. Government counsel asserts, and cor-
rectly so, that as of March 4, 2003, there was an employee on
second shift more senior than Jose del Valle. Government
counsel argues the Company had a statutory, as well as past
practice obligation, to bargain over the schedule change before
implementing it.
Anticipating some of the Company's defenses, Government
counsel disputes any claim the unilateral schedule change
herein for Jose del Valle was de minimus and did not rise to the
level of a violation of the Act. Government counsel argues the
Board consistently finds unilateral changes in employees' work
starting times and job assignments affecting seniority rights to
be material, substantial, and significant changes. Government
counsel asserts an employer, such as the Company herein, that
effects unilateral changes in terms and conditions that are man-
datory subjects of bargaining commits a per se violation of
Section 8(a)(5) of the Act.
The Company concedes it created a new position on first
shift for a machine operator in early March 2003. It acknowl-
edges it transferred Jose del Valle from second to first shift to
fill the newly created position without notification to or bar-
gaining with the Union. The Company acknowledges that when
a labor organization has been recognized or certified as the
bargaining representative of an employer's employees Section
8(a)(5) of the Act obligates the employer to bargain collectively
over wages, hours, and other terms and conditions of employ-
ment. The Company also acknowledges an employer violates
that duty if it changes working conditions of represented em-
ployees without first giving the union notice of the proposed
changes and affording the union an opportunity to bargain.
The Company, however, argues it did not have an obligation
to notify and bargain with the Union about the terms of the
charge in shift herein because the change in shift did not consti-
tute a change in working conditions of the unit employees. The
Company contends it created a new first shift operator position
to afford Jose del Valle an accommodation pursuant to his re-
quest under the provisions of the Americans with Disabilities
Act of 1990, Section 2 et seq., 42 U.S.C.A. Section 12101 et
seq. The Company argues that once it had an employee with a
qualified disability who had requested a reasonable accommo-
dation it was required to utilized an interactive process to iden-
tify and propose solutions. Stated differently the Company
contends that if an employee, such as Jose del Valle, has a dis-
ability, but is qualified and can perform the essential functions
of the job, then the employer must reasonably accommodate the
individual's known disability unless the employer proves such
an accommodation would entail an "undue hardship." The
Company asserts it did not contest the initial petition for relief
of Jose del Valle but rather attempted to afford him a reason-
able accommodation. The Company contends there was no
change in the terms and conditions of employment of unit em-
ployees. The Company asserts there is no showing that the
creation of the new first shift position affected the only em-
ployee that had more seniority than Jose del Valle. The Com-
pany notes no employees on the first shift were displaced in
order to accommodate Jose del Valle. The Company argues
none of the employees of the second shift would have been
transferred to the first shift at the time in question, since there
were no vacancies on the first shift nor any need for additional
employees on that shift. The Company notes no one from man-
agement received any claims from any employees that their
rights, seniority, or otherwise, had been violated. The Company
argues there can be no violation of the Act because the shift
change for Jose del Valle was not a material, substantial, and/or
significant change in the terms and conditions of employment
of the unit employees. Additionally the Company argues, if any
violation of the Act should be found it could only be a de
minimus violation and should be dismissed on that basis.
C. Analytical Framework Unilateral Change
General speaking when a union has been certified (or recog-
nized) as the exclusive collective-bargaining representative of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
employees in an appropriate unit an employer is obligated,
upon request, to bargain collectively over wages, hours, and
other terms and conditions of employment. The subjects over
which an employer is required to bargain constitutes and are
referred to as "mandatory" subjects of bargaining. Mandatory
subjects of bargaining, generally described, are those that regu-
late the labor relations between an employer and its employees.
Employers may not make unilateral changes in mandatory sub-
jects of bargaining unless or until they have satisfied their duty
to negotiate. A unilateral change not only violates the require-
ment to bargain over mandatory subjects, but also does damage
to the process of collective bargaining itself. See, Fresno Bee,
339 NLRB 1214, 1219 (2003). An employer violates Section
8(a)(5) when it makes a material and substantial change in
wages, hours, or other terms or conditions of employment that
are mandatory subjects of bargaining and fails to give notice to
and/or bargain with the union representing its employees about
such changes. To avoid a finding of a violation of the Act an
employer must establish that the unilateral change was in some
way privileged.
D. Analysis and Conclusions Unilateral Change
It is undisputed the Company transferred unit employee Jose
del Valle from the night to day shift on March 4, 2003. It is
likewise undisputed the Company did not provide the Union
with notice or an opportunity to bargain concerning this con-
duct and the effects of this conduct on the Unit. The parties
stipulated that the Company's "past practice regarding work
shift assignments has been, and continues to be, dependent on
employees' seniority at the plant." It is stipulated there was an
employee on the night shift, at the time of the transfer of Jose
del Valle from the night to day shift, that was senior to Jose del
Valle. The transfer of a unit employee from one shift to another
is a mandatory subject for bargaining. Illiana Transit Ware-
house Corp., 323 NLRB 111 (1997) and Fresno Bee, 339
NLRB 1214 (2003). In agreement with Government Counsel,
an employer, such as the Company herein, that effects unilat-
eral changes in terms and conditions of employment that are
mandatory subjects of bargaining commits a prima facie viola-
tion of the Act.
The Company's defenses must be examined to ascertain if
its unilateral change was in some way privileged. The Com-
pany has the burden to demonstrate such, if in fact it can do so.
The Company contends its accommodation of Jose de Valle did
not violate the Act in any way. The Company contends that in
accommodating Jose del Valle it "created" a position on the
first shift even though a vacancy did not exist nor was any addi-
tional help needed on that shift. The Company notes no em-
ployee on first shift was displaced in order to accommodate
Jose del Valle. The Company asserts Government counsel "did
not present any evidence that the creation of the new vacancy
affected the only employee that had more seniority than Jose
del Valle." The Company argues there was no change to the
terms and conditions of employment of the unit employees;
therefore, no violation of the Act.
Some discussion of the Americans with Disabilities Act is
perhaps helpful in considering the Company's defense. First, I
am not unmindful of the stated purpose of Congress when it
enacted the Americans with Disabilities Act which was to pro-
vide a national mandate for the elimination of discrimination
against individuals with disabilities. Was Jose del Valle a quali-
fied individual with a disability and did the Company violate
the Act when it, in the manner it did, accommodated his dis-
ability? To evaluate the Company's defense I find it unneces-
sary to set forth an exhaustive review of the Americans with
Disabilities Act. Suffice it to say a qualified individual is an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position the individual holds or desires. If an em-
ployee cannot perform the essential functions of his/her original
job but could perform the essential functions of another job at
the employer the employee is still covered by the Americans
with Disabilities Act. If an employee has a qualified disability
and requests a reasonable accommodation, an employer is re-
quired to identify and propose solutions. An employer is not,
however, required to provide a specific accommodation to a
qualified disabled employee but rather an employer has signifi-
cant discretion in determining what constitutes a reasonable
accommodation within the meaning of the Americans with
Disabilities Act. An employer need not make an accommoda-
tion at all if doing so would impose an undue hardship on the
operation of the employer's business.
The Company herein assumed Jose del Valle was a qualified
individual with a disability under the Americans with Disabili-
ties Act relying, as it did, on the medical document he pre-
sented that indicated he was "on controlled medication at night
that could affect his performance." For the purposes of evaluat-
ing the Company's defense herein I need not determine if being
place on medication for a limited period of time that might
affect an employee's performance constitutes a recognizable
disability. I will assume, without deciding, that it does. There is
no question but that Jose del Valle could perform the essential
functions of the additionally created first shift operator position
the Company transferred him to. Not withstanding Jose del
Valle's established disability, I am persuaded the Company may
not avoid its bargaining obligations, pertaining to creating a
new unit position on first shift, and transferring Jose del Valle
to it, simply by asserting it was accommodating an employee
with a disability. I so conclude because work shift assignments,
schedules, and hours of work are mandatory subjects of bar-
gaining. Work shift assignments at the Company have always
been and continue to be made by seniority. The accommodation
the Company made infringed on the seniority rights of other
unit employees and as such was unreasonable even pursuant to
the Americans with Disabilities Act. Kralik v. Durbin, 130 F.3d
76, 83 (3rd Cir. 1997). The Company's argument that no em-
ployee rights were violated in the transfer of Jose del Valle
because no employee was displaced on first shift nor would any
employee have been transferred from second to the first shift if
it had not created a new unit position on first shift to accommo-
date Jose del Valle is invalid and misses a very crucial point.
What the Company did in accommodating Jose del Valle, in the
manner it did, caused employees' to lose some of the value of
their seniority rights. Accordingly I find the Company's attempt
to demonstrate its unilateral change was privileged fails.
INDUSTRIA LECHERA DE PUERTO RICO, INC. (INDULAC, INC.) 1081
I next examine the Company's asserted defense that the uni-
lateral transfer of Jose del Valle from second to first shift did
not violate the Act because it was not a "material, substantial
and significant one." Contrary to the Company's contention I
conclude and find the creation of a new unit position on the
most desired work shift is a significant change. The change
impacted employees on the second shift and specifically the
employee senior to Jose del Valle. Additionally, if one em-
ployee's seniority is violated it lessens the value of seniority
rights for all remaining unit employees. The Company's asser-
tion it had no complaints from the second shift employees af-
fords it no relief. There were complaints to the Union and it
was on the basis of those complaints that the matter was raised
with management. I reject the Company's contention that the
fact none of the employees on the second shift would have been
transferred to first shift at the time in question, absent the crea-
tion of a new unit position on first to accommodate an em-
ployee with a disability, would make the transfer immaterial,
unsubstantial, or insignificant. I find the creation of the first
shift position and the transfer of Jose del Valle was a material,
substantial, and significant change in terms and conditions of
employment of unit employees.
Finally the Company's question "what could it have done
differently than it did when it was faced with an urgent disabil-
ity accommodation request" is answered, namely, give notice to
and bargain with the Union about it. Perhaps Jose del Valle
could have taken his medication during the day and worked the
night shift without affecting his performance on that shift.
I find the Company failed to demonstrate it was privileged
to implement the unilateral transfer outlined above. I specifi-
cally find the Company violated Section 8(a)(5) and (1) of the
Act when on or about March 4, 2003, it unilaterally and without
prior notice to or bargaining with the Union, transferred its unit
employees Jose del Valle from second to first shift.
E. Information Request
Jose del Valle's transfer on March 4, 2003, from second
(night) to first (day) shift was based solely on the 1 page medi-
cal document he provided to the Company seeking an accom-
modation. The Company and Union met on March 4, 2003, to
discuss various concerns including the transfer of Jose del
Valle. At that meeting the Union, through Union Steward Arias
and Union President Figueroa, asked to be provided Jose del
Valle's 1 page medical document. The Union explained the
document was needed to see if the transfer was "really valid"
because, it was affecting second shift unit employees' seniority
rights. The Union insisted it see the document as it alone con-
stituted the "evidence" and/or the "proof" that the transfer was
valid. The credited evidence establishes Company Operations
Director Trinidad was concerned about the confidential nature
of the medical information on the document. Trinidad also
believed the Americans with Disabilities Act prohibited the
release of the information. Trinidad suggested to Union Stew-
ard Arias and Union President Figeuroa that if the Union
wanted to see the medical document they should negotiate with
the employees and seek Jose del Valle's authorization to look at
the document.
The Union claims it raised its request for information a sec-
ond time with the Company in a letter dated March 20, 2003. I
concluded, as explained earlier, that I am unwilling to find the
letter was actually sent as contended by the Union. Accord-
ingly, I find the Union did not raise the issue again with the
Company until it filed the underlying charge herein.
F. Analytical Framework For Information Request
It is well-settled, if a union requests, an employer has an ob-
ligation to provide information the union needs to fulfill its
obligation to represent the unit employees and to bargain on
their behalf. Stated differently, an employer has a statutory
obligation to provide requested information in its possession
that is relevant, or even potentially or probably relevant to a
union in fulfilling its responsibilities as the employees' exclu-
sive bargaining representative. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Information concerning terms and condi-
tions of employment is presumably relevant and must be pro-
vided within a reasonable time, or, if not provided, a timely
explanation must be given. FMC Corp., 290 NLRB 483, 489
(1988). A union's interest in relevant and necessary informa-
tion; however, does not always predominate over other legiti-
mate interests. The Supreme Court in Detroit Edison Co. v.
NLRB, 440 U.S. 301, 99 S. Ct. 1123 (1979), explained "a un-
ion's bare assertion that it needs information to process a griev-
ance [or potential grievance] does not automatically oblige the
employer to supply all the information in the manner re-
quested." The duty to supply information turns upon the cir-
cumstances of the particular case, and much the same may be
said for the type of disclosure that will satisfy that duty. In deal-
ing with a union's request for relevant, but assertedly confiden-
tial information possessed by an employer, the Court requires
the Board to balance a union's need for the information against
any legitimate and substantial confidentiality interest estab-
lished by the employer. The party making a claim of confiden-
tiality has the burden of proving that such interests are in fact
present and of such significance as to outweigh the union's need
for the information. Jacksonville Association For Retarded
Citizens, 316 NLRB 338, 340 (1995). To trigger a balancing
test, an employer must first timely raise and prove its confiden-
tiality claim. Additionally, an employer possessing the informa-
tion and refusing to disclose it on confidential grounds has a
duty to seek an accommodation through the bargaining process.
The employer must bargain towards an accommodation be-
tween the union's need for the information and the employer's
justified confidentiality concerns. Exxon Co. USA, 321 NLRB
896, 898 (1996).
G. Positions of the Parties on Requested Information
The Government contends the Company's refusal, on and af-
ter March 4, 2003, to supply the Union with Jose del Valle's
medical documentation, as requested by Union Steward Arias
and Union President Figueroa, constitutes an unlawful refusal
to bargain.
The Company asserts it has not refused to bargain but rather
has sought to protect confidential information from unauthor-
ized release. The Company further asserts it attempted to arrive
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
at an accommodation with the Union regarding the release of
the information.
The Union sought the information to see if it validated the
employee's change from second to first shift because the
change was affecting seniority rights of second shift employees.
I find the Union's request was relevant and reasonably neces-
sary to its representative duty to investigate contractual and past
practice seniority rights and to, if necessary, prosecute (poten-
tial) grievances.
I find the Company alerted the Union of and established its
confidentiality concerns. The Company expressed its confiden-
tiality concerns to the Union when Company Operations Direc-
tor Trinidad advised the Union that Jose del Valle had re-
quested a reasonable accommodation pursuant to the Ameri-
cans with Disabilities Act and had supported his request with
the medical document in question. Company Operations Direc-
tor Trinidad suggested to the Union that it negotiate and spe-
cifically stated the Union should seek Jose del Valle's authori-
zation for the Company to release the requested information.
The Union apparently never acted on the Company's accom-
modation suggestion nor did the Union seek any other accom-
modation that might satisfy its need for information while at the
same time protecting, to the extent possible, the confidential
nature of the requested information. The Board, with specific
guidance from the U.S. Equal Employment Opportunity Com-
mission (EEOC), concluded in Roseburg Forest Products Co.,
331 NLRB 999, 1003 (2000) that the Americans with Disabili-
ties Act permits an employer to give a union, in its role as bar-
gaining representative, medical information necessary to the
Americans with Disabilities Act reasonable accommodation
process to enable the employer and union to make reasonable
accommodation determinations consistent with the Americans
with Disabilities Act. The Board; however, envisioned the par-
ties would negotiate to determine what the employer would be
"permitted" to provide of medical information while recogniz-
ing the confidential nature of medical information. Here the
Union failed to respond to the Company's suggestion it seek a
release from Jesse del Valle. Further the Union did not attempt
in any other way to negotiate concerning the confidentiality
claims raised by the Company. The Union did not, for example,
come forward with any assurances it would limit access to the
information to those on a need to know basis.
I find the Company met its burden of showing it had a le-
gitimate and substantial interest in not releasing the medical
document Jose del Valle presented to it in support of his request
for accommodation. The Americans with Disabilities Act re-
quires the Company to safe guard such medical information
except it may be permitted to provide certain information in
order for it and the Union to make reasonable accommodation
determinations consistent with the Americans with Disabilities
Act. I find the Union failed to follow through with the Com-
pany's offer that it seek a waiver from Jose del Valle for the
information, or that it proposed or sought any other solution to
meet their need for the information. Accordingly, I find the
Government has failed to establish that the Company violated
the Act by refusing, in the manner it did, to furnish the informa-
tion the Union requested on March 4, 2003. Accordingly I shall
dismiss that complaint allegation.
III. REMEDY
Having found the Company has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
take certain affirmative action designed to effectuate the poli-
cies of the Act. Specifically, the Company shall be ordered to
bargain in good faith with the Union regarding any requests for
accommodations pursuant to the Americans with Disabilities
Act that impacts working conditions specifically including
work or shift assignments of any unit employees. It does not
appear any additional remedy would be appropriate. The newly
created first shift position no long exists. No employee lost
money or other benefits as a result of the Company's unilateral
transfer of Jose del Valle from second to first shift. No seniority
rights need be restored.
[Recommended Order omitted from publication.]