United Food and Commercial Workers Union, Local 540 (Tyson Foods)

National Labor Relations Board - Board Decisions

Jun 11, 2018

366 NLRB No. 105 (N.L.R.B. 2018)

366 NLRB No. 105
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United Food and Commercial Workers Union, Local
540 (Tyson Foods) and Jesus Romero. Case 16–
CB–193820
June 11, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On February 27, 2018, Administrative Law Judge
Keltner W. Locke issued the attached bench decision and
certification. The Respondent filed exceptions with sup-
porting argument, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, United Food and Commercial Workers Un-
ion, Local 540, Dallas, Texas, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Telling employees it represents that it will not file
grievances on their behalf because they are not union
members.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Dallas, Texas facility copies of the attached notice

1 There are no exceptions to the judge's dismissal of the allegation
that the Respondent violated Sec. 8(b)(1)(A) of the Act by refusing to
process a grievance on behalf of Charging Party Jesus Romero.
2 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.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language for the violation found, and we
shall also substitute a new notice to conform to the Order as modified.
marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees and members are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its members by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Within 14 days after service by the Region, deliver
to the Regional Director for Region 16 signed copies of
the notice in sufficient number for posting by Tyson
Foods at its North Richfield Hills, Texas facility, if it
wishes, in all places where notices to employees are cus-
tomarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 16 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 11, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell you that we will not file grievances
on your behalf because you are not a union member.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 540
The Board’s decision can be found at
www.nlrb.gov/case/16-CB-193820 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Becky Mata, Esq., for the General Counsel.
David K. Watsky, Esq. (Lyon, Gorsky & Gilbert LLP), of
Dallas, Texas, for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on December 19, 2017 in Fort Worth, Texas. After the
parties rested, I heard oral argument, and on February 1, 2018,
issued a bench decision pursuant to Section 102.35(a)(10) of
the Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1

1 The bench decision appears in uncorrected form at pages 120
through 134 of the transcript. The final version, after correction of oral
CONCLUSIONS OF LAW
1. At all material times, the Employer, Tyson Foods, has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, United Food and Commercial Workers
Union, Local 540, is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all material times, the Respondent has been and is the
exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of the following unit of the Employer’s
employees: Included: All regular full-time and regular part-
time production workers, including warehousemen, shipping
and receiving employees, maintenance employees, and
sanitation workers. Excluded: All other employees, including
the employees at the cold and dry storage facilities, laboratory
service and production development technicians, quality control
function, including technicians, line inspectors and inspectors,
senior drafters and drafters, plant and office clerical, truck
drivers, programmers and instrument technicians, and guards
and supervisors as defined in the National Labor Relations Act.
4. At all material times, Respondent and the Employer have
maintained and enforced a collective-bargaining agreement
covering the terms and conditions of employment of the
employees in the bargaining unit described above in paragraph
3. This collective-bargaining agreement includes a grievance
and arbitration procedure.
5. The Respondent violated Section 8(b)(1)(A) of the Act by
telling an employee seeking to file a grievance that the
Respondent would not file a grievance on his behalf because he
was not a union member.
6. The conduct described in paragraph 5 above is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The Respondent did not engage in any unfair labor
practices alleged in the consolidated complaint not specifically
found herein.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following
recommended.2
ORDER
The Respondent, United Food and Commercial Workers
Union, Local 540, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Informing employees in the bargaining unit it represents,
described above in paragraph 3 of the Conclusions of Law, that
it will not file grievances on their behalf because of non-
membership in the Union.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by

and transcriptional errors, is attached as Appendix A to this Certifica-
tion.
2 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be adopt-
ed by the Board, and all objections to them shall be deemed waived for all
purposes.
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 540 (TYSON FOODS) 3
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
offices in Dallas, Texas, and at all other places where notices
customarily are posted, copies of the attached notice marked
“Appendix B.”3 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees customarily are 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 addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with
bargaining unit employees by such means. J. Picini Flooring,
356 NLRB 11 (2010).
(b) 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 Regional Director attesting to the
steps that the Respondent has taken to comply.
Dated Washington, D.C. February 27, 2018
APPENDIX A
Bench Decision
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations.
Procedural History
This case began on February 24, 2017, when the Charging
Party, Jesus Romero, filed the initial charge in this proceeding
against the Respondent, United Food and Commercial Workers
Union, Local 540. He amended that charge on August 1, 2017.
On September 22, 2017, after investigation of the charge, the
Regional Director for Region 16 of the National Labor
Relations Board issued a Complaint and Notice of Hearing,
which I will call the “Complaint.” In issuing this complaint,
the Regional Director acted on behalf of the General Counsel of
the Board, whom I will refer to as the “General Counsel” or as
the “government.”
The Respondent filed a timely answer.
On December 19, 2017, a hearing opened before me in Fort
Worth, Texas. The parties finished presenting their evidence
that day, and I adjourned the hearing. It resumed by telephone
on January 30, 2018 for oral argument. I then adjourned the
hearing until today, February 1, 2018, when it resumed by
telephone for this bench decision.
Admitted Allegations
The Respondent has admitted the allegations in complaint

3 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.”
paragraphs 1, 2, 3, 4, 5, and 6 and, based on those admissions, I
find that the General Counsel has proven the allegations raised
therein. More specifically, I find that the Charging Party filed
and served the charge as alleged.
Further, I find that at all material times, Tyson Foods, which
I will refer to as the “Employer,” has been a corporation
engaged in the processing and nonretail sale of food products,
with an office and place of business in North Richland Hills,
Texas. At all material times, it has been an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
Additionally, based on the admissions in the Respondent’s
answer, I find that at all material times the Respondent has been
and is a labor organization within the meaning of Section 2(5)
of the Act, that steward Jose Segovia and steward Odilon
Hernandez have been its agents within the meaning of Section
2(13) of the Act, and that, by virtue of Section 9(a) of the Act,
it has been the exclusive collective-bargaining representative of
the following employees of the Employer:
Included: All regular full-time and regular part-time
production workers, including warehousemen, shipping and
receiving employees, maintenance employees, and sanitation
workers.
Excluded: All other employees, including the employees at
the cold and dry storage facilities, laboratory service and
production development technicians, quality control function,
including technicians, line inspectors and inspectors, senior
drafters and drafters, plant and office clerical, truck drivers,
programmers and instrument technicians, and guards and
supervisors as defined in the National Labor Relations Act.
Further, based on the admissions in the Respondent’s Answer, I
find that at all material times, the Respondent and the Employer
have maintained and enforced a collective-bargaining
agreement covering the terms and conditions of employment of
this bargaining unit, and that this agreement includes a
grievance and arbitration procedure.
Contested Allegations
Complaint Paragraph 7
Complaint paragraph 7 alleges that on about February 22,
2017, the Respondent, by Jose Segovia, told Jesus Romero that
the Union would not assist him because he was not a union
member. The Respondent has denied this allegation. The
Respondent also has denied that it thereby violated Section
8(b)(1)(A) of the Act, as alleged in Complaint paragraph 9.
Charging Party Romero began working for the Employer in
October 2002. In August 2016, the Employer suspended him
for violating its “lock out/tag out” policy, which was part of its
“Core Safety Mandate.” The suspension notice informed him
that a future violation could result in further disciplinary action
up to and including discharge.
At the time of his discharge in February 2017, Romero was
working as a leadman. The complaint does not allege and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
record does not establish that Romero possessed supervisory
authority, as described in Section 2(11) of the Act, and I
conclude that he did not. However, in the course of his work he
did give instructions to certain other employees.
Some of these employees informed management that
Romero had told them not to “lock out” their machines.
Presumably, he gave this instruction to speed up production,
but it violated the Employer’s safety policy. Concluding that
this was Romero’s second violation of the “Core Safety
Mandate,” management decided to discharge him.
Union steward Odilon Hernandez testified without
contradiction that a representative of the Employer’s human
resources department called him to a meeting at which the
complaining employees were present. The human resources
representative told the steward that management intended to
discharge Romero and asked him to be present during the
discharge interview.
Hernandez did attend the meeting, on about February 22,
2017, at which management informed Romero of the decision
to terminate Romero’s employment. Neither during nor after
this meeting did Romero ask Hernandez to file a grievance over
the discharge.
Romero left the plant but later that same day returned to the
parking lot. He had another individual contact union steward
Jose Segovia, who then came to the parking lot to speak with
Romero.
During Segovia’s discussion with Romero, two other
employees also were present. One was Jaime Bonilla, who
appeared as a witness in this proceeding. The other was Pedro
Velasco, who did not testify.
Romero testified that he told Segovia that he wanted to file a
grievance concerning his discharge and that Segovia replied
that he could not, because he was not in the Union. Bonilla
corroborated that testimony:
Q: BY MS. MATA: Mr. Bonilla, who also was present at
that table besides Mr. Romero and Mr. Segovia?
A. Mr. Pedro Velasco.
Q. What happened at the end of that conversation?
A. Mr. Segovia commented to me that -- to me and Pedro,
that he didn’t help those that were not in the Union because he
didn’t want to have problems with Juan.
Q. And he directed these comments toward you?
A. To both of us.
Steward Segovia denied telling Romero that he could not file
a grievance because he was not a union member. In Segovia’s
account, Romero told him that he had been discharged because
of “accusations” by a fellow employee or employees.
In discussing Segovia’s testimony, it may be noted that he,
and all the other witnesses, testified in Spanish, and that the
written record consists of the translation into English by an
interpreter. There are occasional quirks of grammar or syntax
which sometimes impair clarity. For example, Segovia testified
that Romero told him that the accusations leading to Romero’s
discharge were made “by the woman working at the line.” That
would imply that only a single employee complained.
However, Segovia’s testimony concerning what he said in reply
suggests that more than one person had complained:
Q. And what did you say?
A. I told him if he had contacted Enrique Flores, his
[Indiscernible] or Herman Flores who are his supervisors, that
there were fake accusations, that why were they being
believed.
Q. And what did he say?
A. That for me to file a grievance.
According to Segovia, he told Romero that he, Segovia,
would call union representative Juan Ventura. Segovia
unequivocally denied telling Romero that he could not file a
grievance because Romero was not a union member:
Q. Okay. Did you ever say, “I can’t file a grievance for you
because you are not in the Union?”
A. No. I told him that this was a very hard case, that I needed
to talk with somebody that was above me, in this case Juan, so
that he could make an investigation. I even offered him
Juan’s number to talk with -- so that he could talk with Juan. I
told him that I was going to talk to Juan about Jesus Romero
and I did that.
The record thus presents a conflict in the testimony which
must be resolved. In these circumstances, testimony by Pedro
Velasco would have been quite helpful. The General Counsel
did not state whether or not an effort had been made to locate
this potential witness and did not offer any explanation for his
absence.
One question which may bear on credibility is why Romero
did not tell the other union steward, Hernandez, that he wanted
to file a grievance concerning his discharge. The record clearly
establishes that Hernandez was present during the discharge
interview and that Romero did not, at any time, ask Hernandez
to file a grievance. Romero testified that he asked steward
Segovia, rather than steward Hernandez, to file the grievance
because Segovia “explained things better. He’s — he gets
himself to understand.”
According to Segovia, when he asked Romero if he had
contacted Hernandez, Romero replied that he, Romero, had
been told that Segovia could file the grievance for him. Such a
response, like Romero’s testimony that Segovia “explained
things better,” does not shed much light on Romero’s
motivation for going to Segovia.
Segovia did, in fact, contact union representative Juan
Ventura. This action is consistent with Segovia’s testimony
that he told Romero that he was going to talk with Ventura
about Romero’s discharge. This consistency weighs in favor of
crediting Segovia’s testimony.
UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 540 (TYSON FOODS) 5
Additionally, the fact that Segovia did contact Ventura about
Romero’s discharge undercuts, to a slight extent, the testimony
that Segovia refused to file a grievance because Romero did not
belong to the Union. It may be asked, if Segovia had refused to
file a grievance, then why would he have called the union
representative?
However, these concerns do not outweigh the fact that two
witnesses testified that Segovia told Romero he could not file a
grievance because he was not a union member. The record
suggests no reason why the corroborating witness, Bonilla,
would fabricate testimony. Accordingly, crediting Romero and
Bonilla, I find that Segovia did say that Romero could not file a
grievance because he was not a member of the Union.
The Union has admitted that Segovia is its agent. Therefore,
Segovia’s statement to Romero is imputable to the Union.
If a union is the exclusive representative of a bargaining unit,
as is the case here, it may not lawfully tell a unit employee that
it will not process the employee’s grievance because the
employee is not a union member. Oil Workers Local 3–495
(Hercules, Inc.), 314 NLRB 385 (1994).
Accordingly, I recommend that the Board find that the Union
violated Section 8(b)(1)(A) by the conduct alleged in
Complaint paragraph 7.
Complaint Paragraph 8
Complaint paragraph 8(a) alleges that since about February
22, 2017, the Union has refused to process Romero’s grievance
concerning his discharge. Complaint paragraph 8(b) alleges
that it so refused because of Romero’s nonmembership in the
Union. The Respondent has denied these allegations. It also
has denied the allegation in Complaint paragraph 9 that such
conduct violated the Act.
On February 23, 2017, union representative Juan Ventura
received a telephone call from steward Segovia, who described
his conversation with Romero. Ventura testified, credibly and
without contradiction, that he told Segovia “we were going to
investigate the merits of what had happened to Mr. Jesus
Romero during his termination.”
Ventura then contacted Ruby Reyes, an official in the
Respondent’s human resources department. Ventura credibly
testified that he met with Reyes at the plant:
Q. And what did he say to you? What did he say happened?
A. He explained to me that it was due to the safety policy of
the Company. He showed me testimony of the people that
were accusing Mr. Romero. I asked him for copies of
everything in reference as to what led the Company to
terminate Mr. Romero.
Q. And did he give you everything?
A. Yes.
Q. And did that include all of the statements?
A. Yes.
After reviewing the documents, Ventura decided that a
meritorious grievance could not be filed. He informed Segovia
of this decision but did not contact Romero. Additionally, the
record does not establish that Romero either contacted or tried
to contact any union official except steward Segovia, and I find
that he did not.
Ventura’s testimony is uncontradicted and the record
provides no basis for doubting it. Moreover, the record does
not disclose any instance in which the Union filed or processed
another employee’s grievance concerning a discharge under
similar circumstances. Additionally, there is no evidence of
improper motive except for steward Segovia’s statement to
Romero.
Nothing in the record indicates that steward Segovia
informed union representative Ventura that he had told Romero
that the Union would not file a grievance on Romero’s behalf
because of Romero’s nonmembership. Moreover, the record
does not indicate that Segovia had any further involvement in
the matter after his telephone call with Ventura, and I find that
he did not. To the contrary, I conclude that Ventura alone
made the decision not to file a grievance on Romero’s behalf.
It also may be noted that the record does not establish that
the Union failed to file a grievance for any other unit employee
because that employee was not a union member.
Crediting Ventura’s testimony, I find that the Union decided
not to file a grievance on behalf of Romero because of its good
faith decision that such a grievance would not be meritorious
and could not be won. Further, I find that Romero’s
nonmembership in the Union did not enter into Ventura’s
decision-making process.
So long as it acts in good faith, a union has a wide range of
reasonableness in determining whether to file and pursue a
grievance on behalf of a bargaining unit employee. Union de
Obreros de Cemento Mezelado (Betteroads Asphalt Corp.), 336
NLRB 972 (2001). Moreover, a union, in exercising the “wide
range of reasonableness” accorded it in representing the
bargaining unit, need not satisfy the Board that the choices it
makes are better or more logical than other possibilities.
Reading Anthracite Company, 326 NLRB 1370 (1998).
Here, I conclude that the Respondent acted in good faith and
within its wide range of reasonableness. Further, I conclude
that it was not motivated by Romero’s status as a nonmember.
Therefore, I recommend that the Board find that the
Respondent did not violate the Act by failing and refusing to
process a grievance on Romero’s behalf.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the
Findings of Fact, Conclusions of Law, Remedy, Order and
Notice. When that Certification is served upon the parties, the
time period for filing an appeal will begin to run.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 tell an employee in a bargaining unit we
represent that we will not file a grievance on behalf of that
employee because of nonmembership in the Union.
WE WILL NOT, in any like or related manner, restrain or
coerce bargaining unit employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL represent all bargaining unit employees regardless
of membership or nonmembership in the Union.
UNITED FOOD AND COMMERCIAL WORKERS UNION,
LOCAL 540 (TYSON FOODS)
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/16-CB-193820 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.