Mondelez Global LLC v. Nat'l Labor Relations Bd.
| Decision Date | 21 July 2021 |
| Docket Number | Nos. 20-1616 & 20-1701,s. 20-1616 & 20-1701 |
| Citation | 5 F.4th 759 |
| Parties | MONDELEZ GLOBAL LLC, Petitioner / Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent / Cross-Petitioner, and Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 719, AFL-CIO, Intervenor-Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James D. Thomas, Attorney, Jackson Lewis P.C., Chicago, IL, Megann McManus, Philip B. Rosen, Daniel Schudroff, Attorneys, Jackson Lewis P.C., New York, NY, for Petitioner / Cross-Respondent.
David Habenstreit, Elizabeth A. Heaney, Barbara A. Sheehy, Attorneys, National Labor Relations Board, Washington, DC, Peter S. Ohr, National Labor Relations Board, Chicago, IL, for Respondent / Cross-Petitioner.
Joshua B. Shiffrin, Attorney, Bredhoff & Kaiser, PLLC, Washington, DC, for Intervenor-Respondent.
Before Flaum, Brennan, and Scudder, Circuit Judges.
A union filed charges of unfair labor practices against Mondelez Global, a manufacturer of baked goods, alleging violations of the National Labor Relations Act. The National Labor Relations Board's General Counsel filed a consolidated complaint, and an administrative law judge found that the company had unlawfully discharged union officials, made unilateral changes to various conditions of employment, and failed to timely and completely provide relevant information the union requested. The Board agreed. Because substantial evidence supports the Board's decision, we deny Mondelez's petition for review and grant the Board's cross-application for enforcement.
Mondelez, an Illinois corporation, makes Ritz crackers, Oreo cookies, and other baked goods at its production plant in Fair Lawn, New Jersey.1 Local 719—a chapter of the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union—represents the Fair Lawn plant's production workers (excluding supervisors) across several departments. Each employee is assigned a specific job classification and prohibited from working in other classifications.
Nafis Vlashi, Claudio Gutierrez, and Bruce Scherer were prominent advocates for the union. During the relevant period, Vlashi served as Local 719's president, and Gutierrez and Scherer were longtime union stewards. In these roles, they represented the interests of unionized workers, which included ensuring that they "receive their fair share of overtime" and that Mondelez does not instruct them to work in classifications other than their own. As union officials, Vlashi, Gutierrez, and Scherer occasionally became embroiled in "heated disputes" with Mondelez's management and supervisors.
The relationship between Mondelez and Local 719 deteriorated during 2016. This manifested in numerous ways, including union protests, disputes about overtime, changes to terms and conditions of the collective bargaining agreement between the company and the union (the "CBA"), and the company's delayed responses to the union's information requests. Below we detail the facts of these various disputes, which show the tension between Mondelez and Local 719 that persisted throughout 2016.
In 2014, Mondelez took over operations of the Fair Lawn plant from its predecessor, Kraft Foods Global, Inc.2 In this transition, Mondelez adopted the then-existing CBA between Kraft and Local 719. After that agreement expired in February 2016, the union officials—Vlashi among them—met with the management to negotiate a successor CBA, but those discussions fell through.
In early 2016, Local 719 initiated a boycott against Mondelez for failing to reach a new agreement and for out-sourcing production work abroad. Vlashi, Gutierrez, and Scherer were among those who led this effort. On one occasion, the three union officials placed American flags with the phrase "United We Stand" at the entrance of the employee locker rooms. Seeing this as a protest, Plant Manager Charlotta Kuratli directed the flags be taken down. The union officials complied. In February, Local 719 organized a "day of unity" to rally the unionized workers. Gutierrez and Scherer, along with other union members, emblazoned Mondelez-issued shirts with a union logo and slogan—"Local 719 BCTGM United As One Voice"—and wore them to work. Kuratli and Human Resources Manager Erica Clark-Muhammad asked the union members to remove and return the shirts. Scherer ignored this demand, and Gutierrez kept the shirt on under his sweatshirt. Then in April and May, Vlashi coordinated and spoke at four union rallies in front of the Fair Lawn plant. The union officials publicized these protest activities on Facebook.
Vlashi, Gutierrez, and Scherer clashed with Mondelez on other labor matters, too. In one instance, Mondelez hired a subcontractor to clean equipment on a Saturday. The three union officials complained to their supervisor that the Saturday clean-up work should be reserved as an overtime opportunity for the unionized workers. When the supervisor rejected this suggestion, the three union officials elevated the issue to a safety coordinator, who instructed the subcontractor to stop. And when an employee on a disability leave could not return to work after receiving medical clearance a day before, Gutierrez argued with a manager over Mondelez's unilateral change to the short-term disability leave policy.
At times, Mondelez's managers and supervisors expressed resentment towards the union. In March 2016, Mondelez assigned utility-classification employees to work on the floor. Gutierrez complained to a shift manager that those employees may not work outside their classification. The manager ignored the complaint and allegedly told them to "leave them there because [Local 719] did not have a contract." On a separate occasion, a manager directed the packing department employees to clean up a spill in the mixing department. Scherer complained to a shift manager that the expired CBA prohibited such cross-classification assignment. That manager dismissed this complaint and stated that the union could not do anything to stop the management from assigning across classifications because Local 719 did not have a contract.
Employee overtime hours emerged as one point of contention between Mondelez and Local 719.
During this period, Mondelez provided an identification badge to each employee at its Fair Lawn plant. Employees used their individually assigned ID badges to enter the facility by swiping them on a turnstile and to clock in and out of their shifts. Those working overtime, however, did not clock in and out on their own. Instead, a supervisor manually punched them in and out of the electronic system.
In fall 2015, Rogelio Melgar, a manager, observed that the Fair Lawn plant had been incurring excessive overtime costs. He notified Kuratli, who then instructed Melgar to audit the overtime issue. Melgar first reviewed the correlation between manual "punch outs"—which he defined as when an employee leaves the facility without clocking out and a supervisor manually adjusts the payroll record—and overtime hours. He noticed a correlation between high overtime hours and high manual punch outs. As an initial attempt at lowering overtime costs, Melgar recommended only one supervisor oversee the manual punch outs. Despite making this change, the problem continued.
Melgar began an official overtime study in May 2016. After selecting 16 random weeks from October 2015 to May 2016, Melgar prepared a report based on the following three factors: (1) the number of times a worker goes in and out of the facility; (2) payroll patterns focusing on those working more than 80 hours per week, which yielded a list of 59 employees; and (3) any discrepancies between an employee's turnstile records and payroll records (e.g., multiple exits but no re-entries by the same worker). Melgar focused on employees who had logged high overtime hours and high turnstile swipes because he believed that "a high ratio of turnstile entries of workers performing overtime work would tend to establish that those workers were not working while on overtime."
From that list, Melgar narrowed his focus to Vlashi, Gutierrez, Scherer, and two other employees.3 Vlashi had the third highest overtime hours and sixth highest turnstile swipes; Scherer fell at the bottom of the overtime list but ranked thirteenth on the turnstile list. Oddly enough, Gutierrez appeared neither on the overtime list nor on the turnstile list. He came up in the report only because Melgar had discovered that another employee, Koroskoski, had used Gutierrez's badge to swipe out of the turnstile. And Naumoski was listed because he had the highest number of turnstile entries for the number of days worked. Based on the findings, the management concluded that these individuals falsified turnstile records, left work without authorization, and took excessive breaks.
On June 15, 2016, Human Resources Manager Clark-Muhammad individually summoned Vlashi, Gutierrez, and Scherer. She confronted each union official with allegations of time theft and turnstile-record falsification. When questioned about his turnstile discrepancies across four days in May, Vlashi maintained that he "clocked in and out at his regular time" and that "the other clock-ins and outs were done manually by a supervisor." In a separate interview with Scherer, Clark-Muhammad inquired about Scherer's turnstile discrepancies and punch outs with no corresponding turnstile swipes. Scherer confessed that he had occasionally bypassed the turnstiles when he did not have his badge but denied using other employees' badges to enter and exit the facility. Gutierrez, too, was under scrutiny. When confronted with the incident involving Koroskoski, Gutierrez denied asking his coworker to use his badge to swipe the turnstile and clock him out. The union officials later testified that their individual meetings "lasted less than 10 minutes" and that Clark-Muhammad failed to provide any opportunity to rebut the claims....
To continue reading
Request your trial