Labor and Employment - W. Christopher Arbery, Valerie N. Njiiri, and Leslie Eanes

Publication year2009

Labor and Employmentby W. Christopher Arbery* Valerie N. Njiiri** and Leslie Eanes***

The trial and appellate courts within the United States Court of Appeals for the Eleventh Circuit handed down a number of important opinions affecting labor and employment law during the survey period from January 1, 2008 to December 31, 2008. These opinions included a significant decision defining a key term under the Family and Medical Leave Act1 and notable cases involving the Fair Labor Standards Act,2 the National Labor Relations Act,3 and the Employee Retirement Income Security Act.4

I. National Labor Relations Act

In NLRB v. Goya Foods of Florida,5 the Eleventh Circuit held that the National Labor Relations Board (NLRB) was justified in imposing an affirmative bargaining order for what it deemed were labor law violations by the employer.6 The NLRB sought to enforce its August 30, 2006 order, which would impose on Goya Foods of Florida (Goya) an

"affirmative bargaining order" to bargain with UNITE HERE (the Union), which was certified to represent the warehouse and sales units at Goya's facility in Miami, Florida.7 Goya is an international food distributor based in New Jersey and has warehouse operations in Miami, Florida.8

On September 2, 1998, the Union filed a petition with the NLRB seeking to represent workers in two divisions at Goya's warehouse facility in Miami. After the Union obtained a majority of ballots, the NLRB certified the Union as the exclusive collective bargaining representative for Goya's warehouse workers and drivers. The Union also won a majority of ballots in a campaign to represent Goya's salesperson unit at the Miami facility, and on December 4, 1998, the NLRB certified the Union as the collective bargaining representative for this unit.9 However, after the election, Goya refused to recognize or bargain with the Union during its first and only year of certification.10

The Union filed charges against Goya with the NLRB office in Miami alleging that Goya violated various provisions of the National Labor Relations Act (NLRA)11 in connection with the Union's early organizing efforts.12 On April 18, 2000, the NLRB's Acting Regional Director filed a complaint against Goya for its alleged management campaign to prevent unionization in 1998 and 1999 in violation of the NLRA.13 Specifically, the complaint alleged that Goya

interfered with, restrained, or coerced employees in the exercise of their rights to unionize in violation of section 8(a)(1);[14 ] discriminated against employees in their retention and the terms oftheir employment for exercising protected rights in violation of section 8(a)(3);[15 ] and, refused to bargain collectively with the Union in violation of section 8(a)(5).16

The complaint also alleged that Goya (1) threatened employees to discourage them from supporting the Union; (2) fired three employees who were active in the Union because they participated in a protest at a local grocery store; (3) underemployed an active Union employee after he discovered a rat infestation; and (4) refused to recognize the Union, made unilateral changes to certain policies, and refused to permit the Union to represent the employees.17

In February 2001, an Administrative Law Judge (ALJ) found that Goya violated the NLRA through actions by its president and other members of management. The ALJ found that Goya's president conducted unlawful and coercive interrogations, threatened workers to prevent them from joining the Union, and informed workers they would not be eligible for Goya's pension benefits if they joined the Union. The ALJ also found that Goya's president threatened plant closures if Goya became unionized, informed various employees that Goya would never recognize the Union, and told employees that Goya would not bargain with the Union even if the employees voted to unionize. Finally, the ALJ found that Goya's management engaged in unlawful conduct after the Union was certified because, among other things, management representatives told employees the company would not recognize the Union, did not permit Union representatives to be present when employees were being disciplined, and instituted unilateral changes to personnel policies without bargaining with the Union.18

The ALJ also determined that Goya violated the NLRA when it terminated three employees who participated in a "nonviolent solicitation" outside a Miami grocery store, including the delivery ofa letter to the store manager in support of the Union's efforts to solicit Goya customers to address sanitation and safety issues at Goya's facility.19 Furthermore, the ALJ found that Goya violated sections 8(a)(1) and 8(a)(3) of the NLRA when it refused to restore an employee to his position after he was involved in a Food and Drug Administration (FDA) investigation. The employee, an active Union member and ten-year Goya employee, allegedly discovered a rodent's nest inside a box ofGoya product while he was stocking shelves at a grocery store. The employee took photographs of the nest and removed the product from the shelf. After he left the store, but before responding to Goya's request to return immediately to the facility, the employee contacted his local Union.20

The employee voluntarily met with FDA investigators, but Goya did not permit him to have his Union representative present. When Goya questioned the employee about the photographs, the employee denied having the pictures. The FDA cleared the employee of any wrongdoing or tampering, but Goya informed the employee that he was temporarily suspended and would no longer service the grocery store where he allegedly found the nest.21

The grocery store chain initially halted deliveries from Goya because of the reported rodent incident, but the deliveries resumed shortly thereafter. Nevertheless, Goya did not return the employee to his prior sales work and did not assign him to new stores based on its suspicion that he had tampered with the box. The employee lost halfofhis income as a result ofthe job changes. The ALJ concluded that the employee lied to Goya regarding the photographs but nevertheless determined that Goya's refusal to return him to his previous job violated the NLRA.22

The Union lost support during its first year of certification, which the ALJ found was caused by Goya's "lengthy course of unfair labor practices."23 Moreover, the ALJ found that Goya's management was involved in circulating disaffection petitions before expiration ofthe one-year decertification bar for sales unit employees. Ultimately, a majority of the employees in both units signed a disaffection petition and the Union was decertified in both units in December 1999.24 The ALJ found the decertification was unlawful, partly because the petition was circulated during the first year of certification.25

On February 22, 2001, the ALJ recommended imposing an affirmative bargaining order to remedy Goya's labor violations.26 The affirmative bargaining order would mandate that Goya "bargain with the Union for a reasonable time before a lawful decertification could take place."27 The parties completed briefing on the issues in June 2001, but no action occurred in the case until the NLRB's August 30, 2006 decision and order.28

The NLRB's order adopted the ALJ's findings and recommendations, with modifications, and the NLRB appended the ALJ's decision to its order. After the NLRB issued its order, Goya filed a motion to stay and a motion for reconsideration to introduce new evidence of changed circumstances, including evidence of technological changes such as a new computer system used to calculate driver routes and employee turnover. The NLRB denied Goya's motions on December 15, 2006 and filed the enforcement action in the Eleventh Circuit on February 7, 2007. Goya challenged the NLRB's order and argued that the court should deny enforcement29 or, in the alternative, remand the case to the NLRB to reassess the remedy because of the lengthy delay in the case and changes to Goya's policies, employee composition, and management.30

The Eleventh Circuit noted that its review of the NLRB's order was limited because the NLRB has authority to "'regulate its own procedures and interpret its own rules, so long as it does not act unfairly or in an arbitrary and discriminatory manner.'"31 Accordingly, the court concluded it would uphold the NLRB's factual findings if "they [were] supported by substantial evidence on the record considered as a whole."32 In addition, the court noted that it was bound by the ALJ's credibility determinations unless they were "'inherently unreasonable or self-contradictory.'"33 The court also stated that it must give significant deference to the NLRB's ordered remedy, but the NLRB "must provide a reasoned assessment to justify its choice of an affirmative bargaining order before a court of appeals will enforce a bargaining order."34

Goya argued that the NLRB's findings were not supported by substantial evidence because (1) the employee terminations were lawful as they were not motivated by anti-union animus and (2) Goya's withdrawal of recognition was not based on unremedied labor violations because "the coercive effect of past violations was diminished and attenuated."35 The Eleventh Circuit, however, decided there was ample evidence to support the NLRB's findings that Goya violated the NLRA.36 Based on this evidence, the court affirmed the finding that the three employees who were terminated were engaged in lawful labor-related activities and, thus, were protected under the NLRA.37

The court noted that a video of the protest showed the three employees participating in a peaceful protest, and the court did not believe the employees' actions took them outside the protections of the NLRA.38 Moreover, the court concluded there was substantial evidence in the record for the NLRB to find that Goya's decision to reassign the employee who reportedly discovered a rodent's nest...

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