525 F.3d 1117 (11th Cir. 2008), 07-10594, N.L.R.B. v. Goya Foods of Florida

Docket Nº:07-10594
Citation:525 F.3d 1117
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOYA FOODS OF FLORIDA, Respondent, UNITE HERE, Intervenor.
Case Date:April 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1117

525 F.3d 1117 (11th Cir. 2008)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

GOYA FOODS OF FLORIDA, Respondent,

UNITE HERE, Intervenor.

No. 07-10594

United States Court of Appeals, Eleventh Circuit

April 24, 2008

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Linda Dreeben, David Habenstreit, Stacy Zimmerman, Fred B. Jacob, NLRB, Washington, DC, for NLRB.

David C. Miller, James C. Crosland, Bryant, Miller, Olive, P.A., Miami, FL, Carlos G. Ortiz, Goya Foods, Inc., Secaucus, NJ, for Respondent.

David M. Prouty, Unite Legal Dept., New York City, for Intervenor.

Application for Enforcement of an Order of the National Labor Relations Board NLRB Nos. 12-CA-19668 & 12-CA-1

Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,[*]District Judge.

ANDERSON, Circuit Judge

I. INTRODUCTION

The National Labor Relations Board ("NLRB") petitions this Court for enforcement of its August 30, 2006, order that would impose, inter alia, an affirmative bargaining order on Goya Foods of Florida ("Goya") to bargain with UNITE HERE, a union that was certified to represent Goya's warehouse and sales unit at its Miami, Florida, facility. This is an unlawful withdrawal of recognition case that arises in the context of a campaign by Goya's management to dissuade union activity during 1998 and 1999. The Regional Director of the National Labor Relations Board brought fifteen charges against Goya in 2000. In February of 2001, the administrative law judge ("ALJ") determined that Goya committed extensive National Labor Relations Act ("NLRA") violations, including wrongful discharges, unlawful refusals to bargain, and pre-petition labor organizing violations. Unfortunately, the Board failed to act on the administrative law judge's well reasoned opinion for more than five years and did not issue its order until August of 2006.

In this contested enforcement action, Goya first asserts that there is not substantial evidence to support the Board's findings. Goya's central argument is, however, that the lengthy delay in this case and the attendant changes to Goya's policies, employee composition, and management require this Court to deny enforcement or, at least, remand the case to the Board in order for it to assess the necessity of its ordered remedy in light of changed circumstances.

As an initial matter, we find that there is ample evidence to support the Board's findings, and that its analysis adequately considered factors appropriate to issuing an affirmative bargaining order. On the changed circumstances issue, we first discuss our decision not to entertain a challenge to the Board's denial of Goya's post-decision motion urging the Board to reconsider and reopen the record to receive evidence of changed circumstances proffered by Goya for the first time. In that peculiar posture, we then decline to impose upon the Board a sua sponte duty to solicit new evidence that has long been known to Goya but not presented to the Board. Although

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the Board's delay in ruling in this case is of considerable concern, the peculiar posture of this case and the particularly egregious nature of Goya's unfair labor practices persuade us that enforcement of the Board's order should not be denied in this case.

II. FACTS

Goya Foods is an international Hispanic foods distributor, based in New Jersey, with a warehouse operation in Miami, Florida. On September 2, 1998, UNITE HERE ("the Union") filed a petition with the Board seeking to represent workers in two divisions of Goya's Miami warehouse facility. At the Miami facility, Goya employs individuals to package and sort food in its warehouse, drivers to deliver its products, and salespersons to sell and stock those products. On or about October 26, 1998, the Board certified the Union as the exclusive collective bargaining representative of the warehouse workers and drivers after an overwhelming victory, 47 to 7, with two challenged ballots. On December 4, 1998, the Board certified the Union as the exclusive collective bargaining representative of the salesperson unit, following a less overwhelming but nevertheless clear victory, 36 to 24.

In connection with its unionizing efforts, beginning on September 16, 1998 and updated thereafter, the Union filed charges against Goya with the local NLRB office in Miami alleging violations of various sections of the NLRA. On April 18, 2000, based on these charges, the Board's Acting Regional Director filed a complaint against Goya for numerous violations of sections 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. The complaint alleged that Goya had interfered with, restrained, or coerced employees in the exercise of their rights to unionize in violation of section 8(a)(1); discriminated against employees in their retention and the terms of their employment for exercising protected rights in violation of section 8(a)(3); and, refused to bargain collectively with the Union in violation of section 8(a)(5).1 See 29 U.S.C. §§ 158(a)(1), (a)(3), (a)(5) (2006).

The complaint alleged numerous violations of the NLRA. Among these were allegations that Goya violated section 8(a)(1) with precertification promises and threats intended to discourage employee support for the Union. Post-election, Goya was alleged to have violated sections 8(a)(1) and 8(a)(3) when it fired three employees who were active in the Union because of their participation in a protest at a local Winn-Dixie store on June 30, 1999. Additionally, Goya was alleged to have violated section 8(a)(3) when it underemployed another active union employee after the employee discovered a rat infestation in a box of product he was using to stock shelves at another Winn-Dixie store. Finally, the complaint alleged violations of section 8(a)(5) based on Goya's refusal to recognize the Union, its unilateral changes to certain policies, and its refusal to permit union designates to represent employees.

The ALJ's findings establish a widespread and lengthy anti-union campaign by Goya's then-president Mary Ann Unanue

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and other members of Goya's management from precertification up to and through the unlawful withdrawal of recognition, which involved Goya management in the circulation of the disaffection petition.2 There were numerous unlawful and coercive interrogations and threats to workers by Goya officials prior to union certification. Specifically, Goya's then-president, Ms. Unanue, conducted coercive interrogations of employees in an effort to gather information on union organizing. At an employee meeting, she reminded employees that union organizing had forced Eastern Airlines into bankruptcy. She also threatened unilateral action against the employees that would result in job loss, suggesting the futility of union organizing efforts prior to the election. At a company meeting, Ms. Unanue informed those who would become union members that they would not be eligible for Goya's pension plan. Ms. Unanue consistently spread the message to Goya employees that if they unionized, they would lose present benefits and that bargaining would start at "zero." There were also threats of plant closures in the event of unionization. The ALJ found, in addition to the threats and intimidation, that Ms. Unanue also made promises to at least one group of workers, night-shift employees, that disagreeable assignments would be transferred to another group, in an attempt to block certification of the Union. Finally, and significantly, Ms. Unanue and other members of management told numerous different groups of employees on multiple occasions that Goya would never recognize a union, and would not bargain with the Union even if the employees voted to unionize. (ALJ at 12.)3

Despite these precertification violations, the union won both elections with majority support of the workers. However, problems with management continued after the elections. During the certification year, the company only met with the Union twelve times--eight times for the warehouse employees and four times for the

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salespeople--and failed to come to any kind of agreement with the Union.

Goya ultimately followed through on its pre-certification threats not to recognize or bargain with the Union. During the Union's first--and only--year of certification, Goya was charged with numerous acts of refusing to recognize the Union. Among the incidents found by the ALJ, employees were told directly by management officials that Goya "would not recognize the authority of 'employee representatives.' " (ALJ at 20.) On numerous occasions, Goya specifically rejected requests by employees to have union representatives present when the employees were having personnel issues. For example, an employee was told by one manager, Maria Cristina Banos, that Goya would not recognize a union delegate. Another was told that Goya would not recognize union delegates until there was a signed contract. (Id.) The warehouse manager told employees that the Union would "never" obtain a contract with Goya. (Id.) Goya's attorney even wrote a letter stating that Goya would not recognize the authority of "employee representatives." (Id.) The ALJ found that the net effect of these actions was "to reverse the outcome of the election by ignoring the Union." (Id.)

Goya also, during the certification year, instituted unilateral changes to several policies--those which are the "bread and butter" of labor issues--including route scheduling and the use of temporary employees. (Board at 5.) Goya argued that it used temporary workers prior to unionization and was therefore not altering the status quo. The ALJ, however, found that Goya "routinely bypassed the Union and instituted unilateral changes at will" in violation of section...

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