Snack maker's firing of union officials was illegal - 7th Circuit

The logo of Mondelez International on an office building in the Glattpark district in Opfikon, Switzerland October 2, 2018. REUTERS/Arnd Wiegmann
  • Overtime probe focused on union officials amid labor dispute
  • Investigation's abrupt end suggested anti-union animus

(Reuters) - A U.S. appeals court has upheld the National Labor Relations Board's finding that snack food giant Mondelez Global LLC used an investigation into alleged time theft as a pretext to fire three employees at a New Jersey factory who were actively involved in a union.

A unanimous three-judge panel of the 7th U.S. Circuit Court of Appeals on Wednesday said Mondelez's abrupt abandonment of the investigation once the three workers had been terminated was sufficient evidence of anti-union animus that violated the National Labor Relations Act.

Mondelez also failed to further investigate dozens of other workers at the Fair Lawn, New Jersey plant who were implicated in the investigation, the court said, and did not give the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union an opportunity to respond to the time theft allegations.

The court also upheld the NLRB's other findings in the sprawling case, including that Mondelez made unlawful unilateral changes to working conditions after a collective bargaining agreement expired.

Chicago-based Mondelez and its lawyers at Jackson Lewis did not immediately respond to requests for comment. Nor did the union, which is represented by Joshua Shiffrin of Bredhoff & Kaiser.

Mondelez, which makes Ritz crackers, Oreo cookies and other well-known food products, acquired the Fair Lawn plant in 2014 and adopted an existing bargaining agreement with the union.

The relationship between Mondelez and the union deteriorated after the agreement expired in 2016, manifested by union protests, disputes about overtime, and unilateral changes to working conditions, according to court filings.

The company, meanwhile, had launched an investigation into excessive overtime hours that identified about 60 employees working more than 80 hours per week.

The manager conducting the probe narrowed his focus to five workers, including the president of the union and two stewards who were actively involved in union protests and contract negotiations.

Mondelez ultimately fired the union officials, finding they had falsified overtime records and taken excessive breaks, and then ended the investigation.

The union filed eight unfair labor practice charges against Mondelez, including claims that the workers were terminated because of their involvement in the union and that the company changed workers' schedules without bargaining and refused to provide information about new hires.

An administrative law judge ruled against Mondelez on all of the claims in 2018, and a three-member NLRB panel upheld the decision last year.

Mondelez appealed, arguing that it lacked knowledge of the three workers' involvement with the union, that the overtime investigation began before their union activity took place, and that there was no proof of anti-union animus.

But the 7th Circuit on Wednesday said those claims were belied by the record in the case. Clashes between the union and Mondelez managers provided the backdrop for anti-union discrimination to take place, Circuit Judge Michael Brennan wrote.

And the NLRB reasonably concluded that the time theft probe's focus on the union officials was not a coincidence, and that Mondelez failed to explain why it abruptly ended the investigation without taking action against the other 50 workers who were implicated, Brennan said.

The panel included Circuit Judges Joel Flaum and Michael Scudder.

The case is NLRB v. Mondelez Global LLC, 7th U.S. Circuit Court of Appeals, No. 20-1701.

For Mondelez: Daniel Schudroff of Jackson Lewis

For the NLRB: Barbara Sheehy

For the union: Joshua Shiffrin of Bredhoff & Kaiser

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at