Dairyland USA Corporation, 310 (2006)

Dairyland USA Corporation and Local 348-S, United Food and Commercial Workers1 and Miguel Pierre

Dairyland USA Corporation and Local 348-S, United Food and Commercial Workers and William Urizar. Cases 2–CA–35632, 2–CB–19388, 2–CA–35633, and 2–CB–19389

May 31, 2006

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On July 19, 2005, Administrative Law Judge D. Barry Morris issued the attached decision. The Respondents and the General Counsel each filed exceptions and supporting briefs, answering briefs, and reply briefs.

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 exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order.

We adopt the judge’s findings that Respondent Dairyland USA Corporation (Dairyland) violated Section 8(a)(1) of the Act by interrogating employees about their activities on behalf of Teamsters Local 202, engaging in surveillance of those activities, and threatening them with loss of work if the Teamsters came into Dairyland’s facility. We also adopt the judge’s findings that Dairyland violated Section 8(a)(1) by promising increased medical benefits to employees if they supported the Respondent Local 348-S, United Food and Commercial Workers (the Union), threatened an employee with discharge if he did not sign a Union card, and created the impression of surveillance of their protected activities. We also agree with the judge that Dairyland violated Section 8(a)(2) of the Act by directing employees to sign the Union’s authorization cards.

The judge also found, however, that Dairyland did not violate Section 8(a)(2) by recognizing the Union as the employees’ collective-bargaining representative at a time when the Union did not have the support of an uncoerced majority of employees. The General Counsel excepts to this finding and to the judge’s failure to find that the subsequent collective-bargaining agreement between the Respondents also violated the Act.3 As explained below, we find that Dairyland and the Union violated the Act as alleged in this regard, and we reverse the judge accordingly.4

i. background

Dairyland is a wholesale food distributor in the greater New York metropolitan area. Dairyland employs approximately 150 employees as warehousemen and drivers at its facility in the Bronx and at a small facility in Columbia, Maryland.5 In addition to these facilities, Dairyland also uses a parking lot a few blocks away from the Bronx facility for its delivery trucks.

On January 23, 2003,6 the Union and Dairyland signed a neutrality agreement. The terms of that agreement allowed the Union to come to the Bronx facility to meet with Dairyland’s employees. On January 27, representatives of the Union went to Dairyland’s Bronx facility and were provided space in the Dispatch Office to meet the employees and solicit authorization cards. On that day, Warehouse Supervisor Kevin Kelly told 18 warehouse employees that they “ha[d] to go” to the dispatch office to meet with the Union “to sign” a card. Operations Manager Mineo Maldonado was present when warehouse employee Bobby Richardson was signing a card, and at various times Maldonado went “in and out” of the card-signing meetings. Maldonado also threatened delivery driver Santana7 by saying to him, “[I]f you don’t sign the card, you won’t be working here.”8 Maldonado also told delivery driver Miguel Pierre that the Union was “there for us” and would “supply medical benefits.”

On January 31, pursuant to the neutrality agreement, an arbitrator conducted a card check. The arbitrator found that the Union had received 111 signed authorization cards out of a proposed unit of 150, and he certified the Union as the collective-bargaining representative of the unit employees. The following day, February 1, the Union and Dairyland signed a collective-bargaining agreement, in which Dairyland recognized the Union. The agreement contains a union security clause and a check-off clause. Since February 1, Dairyland has deducted $25 from each employee paycheck for union dues.

In May, after the foregoing events, employee Efrain Rodriguez raised a complaint about timecards in a union meeting. Several days later, Supervisor Kevin Kelly told Rodriguez that “he’s hearing things about me that he’s not liking and that I should put a stop to it.”9 Thereafter, in June, several employees met at a parking lot used by Dairyland a few blocks away from the facility to discuss representation by Teamsters, Local 202. Two days later, John Pappas, vice-president of Dairyland, called employee William Urizar into his office. At that meeting, Pappas stated to Urizar, “Willie, what were you doing in that meeting. . . . We know you were there,” and “if those Teamsters come into the company, we’re going to cut 30 routes.”10

With this background, we turn to the allegation that Dairyland unlawfully recognized the Union.

ii. unlawful recognition allegation

A. Judge’s Analysis

The judge found that Dairyland did not violate Section 8(a)(2) of the Act by recognizing the Union at a time when the Union did not represent an uncoerced majority of employees. In doing so, the judge applied a purely mathematical analysis. He counted the 18 warehouse employees who were told to meet with the Union to sign a card. He also added Richardson, who signed his card in Maldonado’s presence, and determined that a total of 19 employees were coerced and their authorization cards were thus tainted.11 The judge then subtracted the 19 tainted cards from the total of 111 signed authorization cards and concluded that the Union had the support of 92 uncoerced employees, a majority of the proposed unit of 150. Consequently, the judge found that Dairyland’s grant of recognition did not violate Section 8(a)(2) of the Act, that the Union’s acceptance of recognition did not violate Section 8(b)(1)(A), that Dairyland did not violate Section 8(a)(3) by entering into, maintaining, and enforcing a collective-bargaining agreement containing a union- security clause, and that the Union did not violate Section 8(b)(2) by entering into, maintaining, and enforcing such agreement.

B. Exceptions

The General Counsel excepts to the judge’s failure to find that Dairyland unlawfully granted recognition, arguing that the judge applied the incorrect standard. The General Counsel contends that the judge erroneously applied a strict mathematical calculation and that the recognition was unlawful because Dairyland engaged in a pattern of unlawful assistance that tainted the Union’s card majority. For the reasons stated below, we find merit to the General Counsel’s exceptions, reverse the judge, and find that the recognition and resulting collective-bargaining agreement violated the Act as alleged.

C. Legal Standard

An employer violates Section 8(a)(2) of the Act when it extends recognition to a union that does not represent an uncoerced majority of employees. Ladies Garment Workers, 366 U.S. 731 (1961). The General Counsel does not need to show, with mathematical precision, that the union lacks the support of an uncoerced majority of employees. SMI of Worcester, Inc., 271 NLRB 1508, 1520 (1984); Clement Bros. Co., 165 NLRB 698, 699 (1967) (holding that coercion of 7 employees out of 129 who signed authorization cards in a unit of approximately the same size was sufficient to infer a larger pattern of coercion amid other violations), enfd. 407 F.2d 1027 (5th Cir. 1969). Rather, “‘[a] pattern of company assistance can be sufficient to invalidate all cards.’” Famous Castings Corp., 301 NLRB 404, 408 (1991) (quoting Amalgamated Local 355 v. NLRB, 481 F.2d 996, 1002 fn. 8 (2d Cir. 1973)). In determining whether a pattern of unlawful assistance exists, the Board examines the totality of the circumstances, including conduct occurring both before and after recognition of the union. Farmers Energy Corp., 266 NLRB 722, 722–723 (1983) (determination of whether employer’s pre- and post-recognition unlawful acts tainted majority status depends on the entire “‘general contemporaneous current of which they were integral parts’”) (quoting Machinists, Lodge No. 35 v. NLRB, 110 F.2d 29, 35 (D.C. Cir. 1939), affd. 311 U.S. 72 (1940)), enfd. 730 F.2d 1098 (7th Cir. 1984); Windsor Castle Health Care Facilities, 310 NLRB 579, 592 (1993) (finding that “circumstances occurring after the execution of the collective-bargaining agreement further manifest[ed] a pattern of assistance,” enfd. in relevant part 13 F.3d 619 (2d Cir. 1994).

Thus, an employer unlawfully grants recognition to a union if it has engaged in a pattern of unlawful assistance. E.g., Windsor Castle, supra at 590. Some examples of conduct constituting unlawful assistance include directing employees to meet with a union representative to sign an authorization card and having a supervisor or company official present when cards are signed. Duane Reade, Inc., 338 NLRB 943 (2003), enfd. 99 Fed. Appx. 240 (D.C. Cir. 2004). When such conduct is accompanied by other coercive activity that interferes with employees’ Section 7 rights, that additional coercive conduct becomes part of the overall pattern of unlawful assistance. See, e.g., Famous Castings Corp., 301 NLRB at 407–408 (employer’s direction of employees to sign cards, interrogation of employees, and issuance of threats constituted pattern of assistance sufficient to taint majority).

Rather than considering whether the totality of the circumstances demonstrated a pattern of unlawful assistance, the judge simply subtracted 19 tainted authorization cards from the 111-card total and found that a majority of uncoerced employees still supported the Union. As set forth above, the judge did not apply the appropriate standard. E.g., Famous Castings Corp., 301 NLRB at 408 ([T]he General Counsel need not...