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Date: 07-26-2021
Case Style:
MONDELEZ GLOBAL LLC, v. NATIONAL LABOR RELATIONS BOARD and BAKERY, CONFECTIONARY, TOBACCO WORKERS AND GRAIN MILLERS INTERNATIONAL UNION, LOCAL 719, AFL-CIO
Case Number: Nos. 20-1616 & 20-1701
Judge: Margaret A. Brennan
Court: United States Court of Appeals For the Seventh Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Milwaukee, WI - Labor lawyer represented defendant with a unfair labor practices charge.
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
1 We draw the facts from the Board’s decision and order, ALJ’s decision, ALJ hearing transcript, parties’ briefs, and exhibits.
Nos. 20-1616 & 20-1701 3
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.
A
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 outsourcing 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
2 As a result of a spin-off, Mondelez became the legal successor to
Kraft Foods in 2014. See Spin-Off Information, MONDELEZ INTERNATIONAL,
https://www.mondelezinternational.com/Investors/Stock/Spin-Off-Information (last visited July 19, 2021).
4 Nos. 20-1616 & 20-1701
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.
Nos. 20-1616 & 20-1701 5
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.
B
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
6 Nos. 20-1616 & 20-1701
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). Melgarfocused 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
3 The two employees are Nove Koroskoski, who was ultimately terminated for using Gutierrez’s timecard, and Zoran Naumoski, who had
the highest turnstile-to-workdays ratio. Neither served as a union official.
Koroskoski was discharged on July 1, 2016; Naumoski retired by the time
Melgar completed the overtime study.
Nos. 20-1616 & 20-1701 7
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. Mondelez immediately suspended Vlashi, Gutierrez,
and Scherer without pay.
After the investigatory interviews, Clark-Muhammad reported herfinding—that the union officials falsified their time
records and committed time theft—to Labor Relations Director Pamela DiStefano. Kuratli and Clark-Muhammad both
recommended to DiStefano that the company should discharge the three union officials. On July 1, 2016, Mondelez
8 Nos. 20-1616 & 20-1701
discharged Vlashi, Gutierrez, and Scherer for falsifying time
records and leaving the work area without authorization.
Upon their discharge, Mondelez abandoned the overtime investigation.
C
Throughout 2016, Mondelez changed various terms and
conditions of employment without notifying or bargaining
with the union.
Short-Term Disability Leave Policy. At least since 2012,
Mondelez had a short-term disability leave policy, which required an employee returning from medical leave lasting five
or more workdays to provide a doctor’s note and be cleared
by the medical department at least 24 hours before beginning
their scheduled shift. In March 2016, Mondelez lengthened
the time an employee must wait before returning to work after submitting a doctor’s note. Under this revised policy, an
employee returning from a short-term medical leave must
submit a doctor’s note to the medical department by 10 a.m.
on the Wednesday prior to the week they are cleared to resume working. Failure to do so would preclude the employee
from “being added back to the schedule for the following
week.” Mondelez implemented this revised policy without
collectively bargaining with the union.
Union Access to New Hires. Mondelez periodically conducts
a one-week orientation for its new employees. Traditionally,
Mondelez permits union officials to meet privately with the
new hires for one hour during that week. In that private meeting, the union collects employee information and union applications, completes dues checkoffs, and provides political
action information.
Nos. 20-1616 & 20-1701 9
But there was a sudden shift. In March 2016, Mondelez informed the union that the CBA had expired and that the union “would not be permitted to speak separately with the new
hires.” The management then sat in during the union portion
of the May 12 new hire orientation. Mondelez altered the
longstanding practice without notifying the union in advance
or bargaining with it.
Employee Shift Schedules. In June and December 2016,
Mondelez changed the shift times of the warehouse employees. Mondelez justified this change as an effort to conform the
staggered and varied schedules of the warehouse employees
to the schedules of other departments. To support this unilateral change, Mondelez cited Article 6, Section 2 of the expired
CBA, which states: “The Company will endeavor to keep the
starting time of all employees as uniform as possible, consistent with the operation of the bakery and other locations
covered by this Agreement.” Likewise, Mondelez made this
change without consulting or bargaining with the union.
D
Mondelez also delayed and failed to supply information
requested by the union.
On May 13, 2016, Local 719 asked Mondelez for the names
of employees who had been disciplined for violating the
clock-in-clock-out policy from March 1, 2006, to March 1,
2016. The union sought this information to investigate any
problems with the turnstile or the ID badges as potentially
contributing to a rise in disciplinary actions over turnstile
discrepancies. On September 9, Mondelez provided a partial
response and followed up with additional information on January 5, 2017.
10 Nos. 20-1616 & 20-1701
On July 7, 2016, Local 719 submitted a separate information request. This time, the union asked Mondelez to provide contact information for all new hires since June 2015 to
coordinate a new hire orientation. Receiving no response for
two months, the union repeated its request on September 8.
Mondelez provided a partial list later that month and again
in January 2017 but failed to provide a complete record of the
new hires.
II
As a result of the events just described, Local 719 filed
eight unfair labor practice charges against Mondelez. The
Board’s General Counsel filed a consolidated complaint
against Mondelez, alleging various violations of the Act. First,
the General Counsel claimed that Mondelez discouraged employees from engaging in union activities by discharging
Vlashi, Gutierrez, and Scherer for assisting the union. See 29
U.S.C. § 158(a)(1), (3). Second, the General Counsel alleged
that Mondelez failed to bargain collectively and in good faith
by unilaterally changing the short-term disability leave policy, union access to new hires, and employee shift schedules.
See id. § 158(a)(1), (5). Third, the General Counsel asserted that
Mondelez failed to bargain collectively and in good faith by
refusing to provide employee disciplinary records and new
hire information as requested by the union. See id. § 158(a)(1),
(5).
After a seven-day hearing, an administrative law judge
concluded that Mondelez had violated the Act on each of
those claims. As to the unlawful discharge claim, the ALJ applied a two-part burden-shifting test from Wright Line, Inc.,
251 N.L.R.B. 1083 (1980), to assess whether antiunion animus
motivated a discharge in violation of § 8(a)(3) and (a)(1). The
Nos. 20-1616 & 20-1701 11
ALJ said yes, finding that Melgar’s overtime study was “applied in a disparate and discriminatory manner to single out
the top union echelon.” Characterizing the overtime
investigation as a “sham,” the ALJ highlighted Mondelez’s
failure to render any “meaningful investigative follow-up” to
assess “the veracity of the explanations provided by the workers” before their discharge. The ALJ also determined that
Mondelez unilaterally changed the terms and conditions of
employment in violation of § 8(a)(5) and (a)(1). In making that
determination—specifically as to the short-term disability
policy and the employee shift schedules—the ALJ applied the
“sound arguable basis” standard, which allows an employer
to take unilateral action if it is based on a reasonable interpretation of the CBA. And finally, the ALJ concluded that
Mondelez violated § 8(a)(5) and (a)(1) by failing to timely and
completely furnish information requested by the union.
The Board affirmed the ALJ’s recommended order, with
three relevant clarifications. Citing an intervening decision,
Tschiggfrie Properties, Ltd., 368 N.L.R.B. 120 (2019), the Board
clarified that the unlawful-motivation analysis under Wright
Line requires a sufficient causal connection between the adverse employment action and the protected activity. The record, the Board found, “amply establishe[d]” the necessary
causal relationship here. The remaining two clarifications addressed the ALJ’s application of the “sound arguable basis”
standard to assess the unilateral change claims relating to the
short-term disability leave policy and employee shift schedules. The Board explained that this standard only applies to
an active CBA, making it inapplicable to disputes involving
an expired agreement as here.
12 Nos. 20-1616 & 20-1701
Mondelez petitioned for our review of the Board’s decision and order, and the Board cross-petitioned for enforcement. Because Mondelez is an Illinois corporation, we have
jurisdiction over the petition for review and the cross-application for enforcement under 29 U.S.C. § 160(f).
III
The National Labor Relations Act protects an employee’s
right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29
U.S.C. § 157. Section 8(a)(1) prohibits an employer from interfering, restraining, or coercing an employee for exercising the
rights guaranteed by the Act. An employer violates § 8(a)(3)
by unlawfully discharging an employee due to union activity.
And § 8(a)(5) bars employers from refusing to bargain collectively and in good faith with the union. A violation of either
§ 8(a)(3) or § 8(a)(5) derivatively violates § 8(a)(1). See Metro.
Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983).
When reviewing a Board decision, we assess “whether
substantial evidence supports the Board’s factual findings
and whether legal conclusions have a reasonable basis in
law.” Constellation Brands U.S. Operations, Inc. v. NLRB, 992
F.3d 642, 646 (7th Cir. 2021); see 29 U.S.C. § 160(e). We look to
“such relevant evidence that a reasonable mind might accept
as adequate to support the conclusions of the Board.” NLRB
v. Teamsters Gen. Local Union No. 200, 723 F.3d 778, 783 (7th
Cir. 2013) (internal quotation marks omitted). Under this deferential standard of review, we examine the “existing administrative record,” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019), and “give great deference to an agency’s credibility determination, overturning it only in extraordinary circumstances.” Witter v. Commodity Futures Trading Comm’n, 832
Nos. 20-1616 & 20-1701 13
F.3d 745, 750 (7th Cir. 2016). We need not “reweigh the evidence.” AutoNation, Inc. v. NLRB, 801 F.3d 767, 771 (7th Cir.
2015) (internal quotation marks omitted). Our only task is to
evaluate “whether there is evidence in the record supporting
the Board’s outcome that would satisfy a reasonable fact
finder.” NLRB v. KSM Indus., Inc., 682 F.3d 537, 544 (7th Cir.
2012).
We discuss, in turn, the Board’s conclusion that Mondelez
unlawfully discharged union officials, unilaterally changed
various conditions of employment, and unreasonably delayed and failed to furnish relevant information requested by
the union.
A
First up is the Board’s finding that Mondelez discharged
Vlashi, Gutierrez, and Scherer in violation of § 8(a)(3) and
(a)(1). To make a prima facie case under subsection (a)(3), the
General Counsel must make a “showing sufficient to support
the inference that protected conduct was a motivating factor
in the employer’s decision.” AutoNation, 801 F.3d at 774 (internal quotation marks omitted). We apply the two-part
Wright Line burden-shifting framework to examine an employer’s motivation in discharging a union member. 251
N.L.R.B. at 1089. See, e.g., NLRB v. Transp. Mgmt. Corp., 462
U.S. 393, 400–04 (1983) (upholding Wright Line), abrogated on
other grounds by Dir., Off. of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994).
Under Wright Line step one, we assess whether the General
Counsel “has shown that antiunion animus was a substantial
or motivating factor in the discharge.” Big Ridge, Inc. v. NLRB,
808 F.3d 705, 713 (7th Cir. 2015). The General Counsel can
14 Nos. 20-1616 & 20-1701
satisfy this burden by demonstrating: “(1) the employee engaged in a protected activity; (2) the decisionmaker knew it;
and (3) the employer acted because of antiunion animus.” Id.
(internal quotation marks omitted); see also Tschiggfrie, 368
N.L.R.B. 120, at *10 (emphasizing that the Wright Line test is
“inherently a causation test”). Simply pointing to any
evidence of employer’s animus is not enough to sustain this
burden. Tschiggfrie, 368 N.L.R.B. 120, at *10 (“The General
Counsel does not invariably sustain this burden of proof under
Wright Line whenever, in addition to protected activity and
knowledge thereof, the record contains any evidence of the
employer’s animus or hostility toward union or other protected activity.”). Rather, “the evidence must be sufficient to
establish that a causal relationship exists between the employee’s protected activity and the employer’s adverse action
against the employee.” Id. at *11.
Once the General Counsel meets this initial burden, we
move to step two: The employer can rebut the evidence by
showing that it would have discharged the employee even “in
the absence of the protected conduct.” Wright Line, 251
N.L.R.B. at 1089; see Big Ridge, 808 F.3d at 714. We need not
accept an employer’s explanation, however, “if there is a reasonable basis for believing it furnished the excuse rather than
the reason for [the] retaliatory action.” Big Ridge, 808 F.3d at
714 (alteration in original) (internal quotation marks omitted).
At either step of Wright Line, the Board may infer discriminatory motive based on direct or circumstantial evidence.
Loparex LLC v. NLRB, 591 F.3d 540, 546 (7th Cir. 2009).
Substantial evidence supports the Board’s conclusion that
the union activity of Vlashi, Gutierrez, and Scherer was a motivating factor in their discharge. The Board highlighted that,
Nos. 20-1616 & 20-1701 15
based on the record, Mondelez knew the three union officials
regularly engaged in union activities. Take, for example, their
union advocacy in early 2016. Gutierrez protested the unilateral change to the short-term disability leave policy; Scherer
challenged Mondelez’s use of subcontractors to perform overtime work; and Vlashi participated in CBA negotiations and
spoke at the union rallies. The three union officials were visible and vocal advocates, who frequently corresponded with
the management and supervisors. It is against this backdrop
the Board concluded Mondelez had knowledge that Vlashi,
Gutierrez, and Scherer engaged in union activity. That is a
permissible reading of the record.
Likewise, ample evidence supports the Board’s finding
that antiunion animus was a motivating factor in the union
officials’ discharge. When unionized workers wore companyissued shirts with pro-union logo and slogan, Kuratli ordered
them removed and returned to management, sharply disapproving the protest measure. Kuratli responded similarly
when she ordered the American flags be taken down. Further,
the Board pointed to Mondelez supervisors uttering hostile
remarks aimed at the union officials and deriding the expired
CBA. And importantly, the Board emphasized the “temporal
proximity” between the union campaigns and the termination of the three union officials. All this together, the Board
concluded, demonstrates that antiunion animus was a motivating factor in Mondelez’s decision to discharge the three
union officials.
On appeal, Mondelez pushes back. First, the company
claims it lacked knowledge of the three union officials’ activities because the Labor Relations Director DiStefano did not
know. Second, Mondelez argues that the Board ignored
16 Nos. 20-1616 & 20-1701
critical facts when concluding that temporal proximity established a causal link. Third, it asserts that the Board’s disparate
treatment finding lacks support.
All three contentions fall short. Start with the claim that
Mondelez lacked requisite knowledge. This argument presumes not only that DiStefano was the sole decisionmaker for
Mondelez, but also that the General Counsel failed to establish her knowledge of the union activities of Vlashi, Gutierrez,
and Scherer. Substantial evidence demonstrates otherwise. In
her testimony, DiStefano stated that when discharging an employee, she and other members of management must “align[]
on decisions,” meaning she was not the only person responsible for discharging Vlashi, Gutierrez, and Scherer. The record indicates that Kuratli (who ordered the overtime study)
and Clark-Muhammad (who spearheaded the investigatory
interviews) were intimately involved. They shared notes with
DiStefano, and both recommended discharging the three union officials. And given that Vlashi, Gutierrez, and Scherer
were widely recognized union advocates at the Fair Lawn
plant, it is a permissible reading of the record that Mondelez
knew of their union activism.
It was also reasonable for the Board to conclude that “temporal proximity” establishes the causal link between the three
officials’ union activity and their discharge. Mondelez insists
that the timing of their discharge did not “align” with the union activity and that Melgar’s overtime study had commenced six months prior to any alleged unfair labor practice.
But when the overtime study began is of no moment. Underscoring Mondelez’s “abrupt and insufficiently explained
abandonment” of the overtime study, the Board stated that
“whatever the initial reason for the study, in practice it
Nos. 20-1616 & 20-1701 17
devolved into a pretext” for discharging the “three high-profile and combative union representatives.” And to arrive at
this conclusion, the Board considered factors besides temporal proximity: how the overtime study and follow-through
were “truncated”; how Mondelez provided “insufficient” explanations for the abandonment of the study; and how the
company suspended and discharged Vlashi, Gutierrez, and
Scherer but took “no action against other employees who engaged in the same misconduct, some of whom were more
egregious offenders than the discriminatees.”
Substantial evidence likewise supports the Board’s disparate treatment finding. Among the 59 employees on the
overtime study list, only five were targeted for a follow-up
investigation.4 That Koroskoski and Naumoski were included
in the investigation does not undermine the Board’s conclusion that Mondelez discharged the three union officials due
to antiunion animus. That is because neither Koroskoski nor
Naumoski is a good comparator. Koroskoski was caught using Gutierrez’s card, so for Mondelez to discharge Gutierrez,
it made sense to also terminate Koroskoski. Naumoski, for his
part, had the most egregious overtime discrepancies. What is
more, the ALJ and the Board found that Mondelez failed to
address the overtime discrepancies of the remaining employees on Melgar’s list or to provide any explanation.
Mondelez contends it would have discharged Vlashi,
Gutierrez, and Scherer despite their union activities. But this
too falls short. For one, the Board found that the abrupt abandonment of the overtime study suggests pretext. Recall that
4 Gutierrez was not among the 59 employees. While Naumoski was
listed in the overtime study, he retired before any discipline.
18 Nos. 20-1616 & 20-1701
as soon as Vlashi, Gutierrez, and Scherer were discharged,
Mondelez halted the overtime study “without taking any action with regard to its overtime cost problem.” The Board emphasized that Mondelez’s failure to conduct a “meaningful”
investigation suggested its discriminatory intent. See, e.g.,
Airgas USA, LLC, 366 N.L.R.B. 104, at *2 (2018) (noting that an
employer’s “failure to conduct a meaningful investigation”
demonstrates animus). Indeed, Mondelez suspended and discharged the three union officials but did not pursue any actions against other serious offenders. As the ALJ recognized,
and the Board agreed, Mondelez failed to provide a credible
reason for this “sudden change of course.” Not only was the
investigation truncated, the Board continued, but also “neither the employees nor [Local 719] had a reasonable opportunity to respond” to the record falsification and time theft
allegations. The Board agreed with the ALJ that “one could
reasonably conclude that the investigation was already completed before their meeting and that the meeting was merely
a pro forma exercise” because “the record is devoid of any
credible evidence of a meaningful investigative follow-up.”
Given this record, the Board reasonably concluded that
Mondelez’s justification was pretextual. There is ample support for “an inference that stealing time was not the real reason why Gutierrez, Scherer, and Vlashi were discharged.”
Substantial evidence therefore supports the Board’s conclusion that Mondelez failed to prove it would have suspended
and discharged the union officials even in the absence of their
union activities.
B
Next up is the Board’s finding that Mondelez unilaterally
changed the short-term disability leave plan, union access to
Nos. 20-1616 & 20-1701 19
new hires, and employee shift schedules, in violation of
§ 8(a)(5) and (a)(1).
Section 8(a)(5) bars employers from refusing to collectively bargain in good faith with a union. 29 U.S.C. § 158(a)(5).
An employer violates § 8(a)(5) by unilaterally changing conditions of employment, including “wages, hours, and other
terms and conditions of employment.” Spurlino Materials, LLC
v. NLRB, 645 F.3d 870, 879 (7th Cir. 2011) (quoting 29 U.S.C.
§ 158(d)). To trigger § 8(a)(5), the challenged change must be
“material, substantial, and significant.” Caterpillar, Inc., 355
N.L.R.B. 521, 522 (2010). In other words, unlawful unilateral
changes occur when “there is an employment practice concerning a mandatory bargaining subject, and [] the employer
has made a significant change thereto without bargaining.”
Bath Iron Works Corp., 345 N.L.R.B. 499, 501 (2005). An “employer’s unilateral change in conditions of employment under
negotiation” violates § 8(a)(5) because “it is a circumvention
of the duty to negotiate.” NLRB v. Katz, 369 U.S. 736, 743
(1962).
With this background, we examine the Board’s finding
that Mondelez unilaterally changed the terms and conditions
of employment in violation of the Act. Mondelez concedes it
unilaterally changed three conditions of employment but argues that the changes were either immaterial or permissible.
First, the Board determined that Mondelez unlawfully
lengthened the return timeframe for employees on short-term
disability leave. The original policy allowed employees to return to active duty within one day of medical clearance. The
revised policy, the Board recognized, “extended that
timeframe from at least 2 to as many as 7 workdays.” For example, if an employee on a short-term disability leave
20 Nos. 20-1616 & 20-1701
submitted their doctor’s note after the Wednesday 10 a.m.
cutoff time, he would not be scheduled to a shift until the following workweek.
Mondelez concedes that it unilaterally revised this policy
yet claims that any change was immaterial. Not so. The Board
affirmed the ALJ’s finding that the extended return timeframe
“affected the amount of wages that worker would earn.” And
by the Board’s count, the revised policy would potentially deprive an employee of two to seven days’ wages. Given that
short-term disability policy is a mandatory bargaining subject, Am. Water Works Co., 361 N.L.R.B. 64, 66 (2014), substantial evidence supports the Board’s conclusion that Mondelez
violated § 8(a)(5) and (a)(1) by unilaterally changing its shortterm disability leave policy.
Second, the Board found that Mondelez unilaterally
changed a longstanding practice of allowing the union to conduct a private meeting during the new hire orientation. True,
the union’s private access to new employees is not an express
employment condition. Even still, § 8(a)(5) extends to employer’s “regular and long-standing” practices that are neither “random” nor “intermittent.” Sunoco, Inc., 349 N.L.R.B.
240, 244 (2007). And union access to employees is a mandatory bargaining subject. See N. Mem’l Health Care v. NLRB, 860
F.3d 639, 648 (8th Cir. 2017).
Mondelez acknowledges that it unilaterally changed this
longstanding practice as well, yet it asserts the change was
immaterial. Again, we disagree. The company relies on
Peerless Food Prods., Inc., 236 N.L.R.B. 161 (1978), to no avail.
The Board concluded in Peerless that a company’s unilateral
change limiting some aspects of a union representative’s access to employees did not amount to a material, substantial,
Nos. 20-1616 & 20-1701 21
or significant change. Id. at 161. The policy change in Peerless,
however, applied indiscriminately to all nonemployees and
did not affect the union’s representation access.
In contrast, here the Board agreed with the ALJ’s finding
that “eliminating [Local 719’s] right to meet separately with
newly hired unit employees during their orientations” was
material. The ALJ, crediting a union official’s testimony,
found that the newly imposed limitations on union access to
new employees had a “chilling effect on soliciting contributions” and undermined “other union-related discussions.”
On this record, the Board’s conclusion that Mondelez violated
§ 8(a)(5) and (a)(1) was reasonable.
Third, the Board determined that Mondelez unilaterally
changed its warehouse employees’ shift schedules without
bargaining with the union. On this claim, too, Mondelez concedes unilaterally changing the policy. The company argues
that it was only “aligning” the employees’ shift schedules
based on the language of the expired CBA, which stated that
the starting time of the employees will be kept “as uniform as
possible.”
The Board correctly dismissed this argument. It first clarified that the “sound arguable basis” standard, which the ALJ
employed, does not apply to cases involving an expired CBA.
The proper inquiry, the Board explained, is whether
Mondelez unilaterally changed a term or condition of employment, not whether its unilateral actions were based on a
reasonable interpretation of contract language. Given that
employee work schedules are mandatory bargaining subjects,
Bloomfield Health Care Ctr., 352 N.L.R.B. 252, 256 (2008), the
Board determined that Mondelez violated § 8(a)(5) and (a)(1)
by altering the warehouse employees’ shift schedules without
22 Nos. 20-1616 & 20-1701
bargaining collectively. Substantial evidence supports this
conclusion.
C
That leaves a final question: Does substantial evidence
support the Board’s finding that Mondelez failed to timely
and completely furnish relevant information requested by the
union?
Section 8(a)(5) requires employers “to provide information that is needed by the bargaining representative for the
proper performance of its duties.” NLRB v. Acme Indus. Co.,
385 U.S. 432, 435–36 (1967). This court has held that “unions
should receive a broad range of potentially useful information
to fulfill these obligations.” Nat’l Steel Corp. v. NLRB, 324 F.3d
928, 934 (7th Cir. 2003). The General Counsel needs to show
only “a probability that the information is relevant and that it
will be of use to the union in carrying out its statutory duties.”
Id. (internal quotation marks omitted); see also Country Ford
Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C. Cir. 2000) (noting that “the threshold for relevance is low”). Any information that directly relates to the bargaining unit employees
is “presumptively relevant.” Gen. Elec. Co. v. NLRB, 916 F.2d
1163, 1171 (7th Cir. 1990) (internal quotation marks omitted);
see Mountain View Country Club, Inc., 359 N.L.R.B. 914, 916
(2013) (explaining that disciplinary records are presumed relevant).
An employer’s unreasonable delay in providing the requested relevant information violates § 8(a)(5). See Monmouth
Care Ctr., 354 N.L.R.B. 11, 51 (2009) (“An unreasonable delay
in furnishing such information is as much of a violation of
Section 8(a)(5) of the Act as a refusal to furnish the
Nos. 20-1616 & 20-1701 23
information at all.”). When a union official requests relevant
information, “the employer has a duty to supply the information in a timely fashion or to adequately explain why the
information was not furnished.” Regency Serv. Carts, Inc., 345
N.L.R.B. 671, 707 (2005). A seven-week delay, for example, is
considered untimely. See Woodland Clinic, 331 N.L.R.B. 735,
737 (2000). Nor can an employer refuse to provide the requested information by asserting that it is “confidential.” Nat’l
Steel Corp, 324 F.3d at 934; see also Crozer-Chester Med. Ctr. v.
NLRB, 976 F.3d 276, 294 (3d Cir. 2020) (noting that “a naked
assertion of confidentiality is insufficient” to reject a union’s
request for relevant information).
Mondelez contends it delayed furnishing the employee
disciplinary records because the union’s request constituted
impermissible prehearing discovery. To be sure, under Board
precedent, a union may not use information requests as a prehearing discovery device on a pending unfair labor practice
charge. Union-Tribune Publ’g Co., 307 N.L.R.B. 25, 26 (1992); see
also Teachers Coll. Columbia Univ. v. NLRB, 902 F.3d 296, 307
(D.C. Cir. 2018) (same). The requested disciplinary records,
Mondelez argues, directly related to the union’s charge
against the clock-in-clock-out policy so the request would be
improper.
Yet the timing of the union’s request undermines
Mondelez’s argument. On May 13, 2016, the union requested
employee disciplinary records as part of its investigation to
evaluate “whether there was an increase in disciplining workers subsequent to the [clock-in-clock-out] policy change.”
That request related directly to the union’s March 28, 2016
grievance, which alleged Mondelez made a unilateral change
to the clock-in-clock-out policy. It was not until June 23, 2016,
24 Nos. 20-1616 & 20-1701
that the union filed an unfair labor charge against Mondelez
on that issue. That means the information request predated
the union’s charge. So when the union submitted its information request, there was no pending charge—only a pending grievance.
Here, the ALJ found, and the Board affirmed, that
Mondelez unreasonably delayed supplying the requested
disciplinary records in violation of § 8(a)(5). The ALJ credited
the information request as “reasonable, appropriate, and necessary” for the union to adequately represent its employees in
the grievance process. Turning to timing, the ALJ determined
that Mondelez failed to “substantially comply” with the May
2016 request until January 5, 2017—a delay of more than
seven months. Citing Board precedent, the ALJ found this delay to be unreasonable. See, e.g., Woodland Clinic, 331 N.L.R.B.
at 707 (seven-week delay); Bundy Corp., 292 N.L.R.B. 671, 672
(1989) (ten-week delay with “specious” reasons); see also
NLRB v. Ingredion Inc., 930 F.3d 509, 517–18 (D.C. Cir. 2019)
(citing Woodland Clinic and Bundy Corp. as examples of “unjustified delay” under § 8(a)(5)).
Mondelez’s “discovery” argument fares no better. The
ALJ explained that an “employer must timely respond to a
union’s request seeking relevant information even when the
employer believes it has grounds for not providing the information.” Here, it was not until September 9, 2016, that ClarkMuhammad informed the union that the record compilation
had taken “an unusually long amount of time.” And even
then, she did not request additional time to produce the documents. This is sufficient to support the Board’s decision that
Mondelez unreasonably delayed supplying the requested
disciplinary records, in violation of § 8(a)(5) and (a)(1).
Nos. 20-1616 & 20-1701 25
Here, too, substantial evidence supports the finding that
Mondelez failed to provide a complete record of the new hires
as requested by the union in violation of § 8(a)(5) and (a)(1).
In July 2016, the union requested a full list of newly hired employees from “June 2015 to the present.” This request, the ALJ
concluded, was necessary and reasonable for the union to coordinate a new hire orientation. After receiving no response
from Mondelez, the union sent another request two months
later on September 8, 2016. But the ALJ found “nothing in the
record to show that [the union’s] September 8 reaffirmation
of [the] request was acknowledged or followed-up by ClarkMuhammad.”
Mondelez fails to mount any meaningful counter to this
finding. It offers the same “discovery” contention as above:
that the request for new hire information constituted impermissible prehearing discovery related to the union’s allegation that Mondelez refused to deduct union dues from new
employees’ pay. The ALJ properly rejected this assertion,
noting that the union’s “primary focus” for its information
request “was to ensure that new hires receive their union orientation,” not an effort to conduct discovery on the dues-deduction charge. At bottom, it was reasonable for the Board to
conclude that Mondelez failed to provide a complete record
of the new hires as requested in violation of § 8(a)(5) and
(a)(1).
Outcome: Substantial evidence supports the Board’s decision as to each of the conclusions Mondelez disputes. So we DENY Mondelez’s petition for review and GRANT the Board’s crossapplication for enforcement.
Plaintiff's Experts:
Defendant's Experts:
Comments: