Winery Can't Ban 'cellar Lives Matter' Vest, Nlrb Judge Says

Posted: Aug 15, 2018

Woodbridge Winery violated federal labor law when it barred an employee from wearing a safety vest adorned with the slogan "Cellar Lives Matter," since it was connected to union activity and wasn't offensive, a National Labor Relations Board judge ruled Friday.

Administrative Judge Ariel L. Sotolongo ruled that Woodbridge Winery, known officially as Constellation Brands U.S. Operations Inc., ran afoul of the National Labor Relations Act when it directed Manuel Chavez, a cellar department worker at its winery near Lodi, California, to stop wearing clothes with the slogan written on them.

Judge Sotolongo noted that Chavez came up with the slogan in consultation with colleagues who were frustrated with a protracted organizing campaign and that the slogan itself, despite the employer's contention to the contrary, wasn't inherently offensive given its connection to the hot-button Black Lives Matter movement.

"Even assuming the controversial status of the original [Black Lives Matter] slogan, I reject the notion of guilt by association, or the notion that the original slogan, let alone a derivative, had acquired taboo status, such as the 'N-word,' where its mere mention was sure to provoke dissension, confrontation or disruption," the judge said. "Certainly, rights protected by Section 7, which have withstood the test of time, should not be judged pursuant to the whims of passing political correctness tests."

The dispute stems from unfair labor practice charges filed by the Cannery, Warehouse, Food Processors, Drivers and Helpers, Local Union No. 601, which is affiliated with the International Brotherhood of Teamsters. A bargaining unit of cellar workers at the winery voted in early 2015 for the union to represent them.

Constellation Brands' case challenging the validity of the bargaining unit is pending before the NLRB on remand from the Second Circuit, which ruled in 2016 that the board's since-overturned Specialty Healthcare standard was misapplied in this case.

Chavez, a senior operator in the cellar department, was an organizer in the run-up to the 2015 union representation election and served as a witness in the initial legal proceedings before the NLRB.

In mid-2016, during an annual safety-related training day for Woodbridge workers, which Chavez didn't attend due to illness, the company distributed T-shirts that featured company branding on the front and a logo on the back that said "Straight Outta Woodbridge," playing off of the film "Straight Outta Compton."

When Chavez returned to work and saw his colleagues wearing the shirts, he decided after consulting with colleagues to write "Cellar Lives Matter" in marker on the back of safety vest as a response to the company's messaging, according to Friday's ruling.

After wearing the marked-up vest for several weeks, Chavez was ordered to stop wearing it in a meeting with supervisors.

In Friday's ruling, the judge noted firstly that Chavez came up with the slogan in response to the company's shirts, which he believed expressed a pro-employer point of view and did so after getting input from coworkers.

"Most importantly, he did so in the context of a recent union organizing campaign in order to publicize and emphasize the often arduous and sometimes hazardous work performed by the workers in the cellar department, intending to promote solidarity among the workers in that bargaining unit - who were still awaiting the resolution of a representation case entangled in legal proceedings," the judge said. "In these circumstances, I conclude that Chavez was engaged in concerted activity protected under Section 7 of the [NLRA] when he wore the vest with the 'Cellar Lives Matter' slogan at work."

Additionally, the judge rejected Woodbridge Winery's argument that the slogan was so provocative and offensive that Chavez lost the NLRA's protection, saying the company's argument is "unpersuasive" on both the factual and legal fronts while noting that no rank-and-file workers complained about Chavez wearing it.

"On the factual side, the record is devoid of any evidence that Chavez intended to mock the BLM movement, much less that he succeeded in doing so," the judge said. "While the [Cellar Lives Matter] slogan was arguably controversial in view of then current events, and perhaps carried a twinge of irony to it, irony is not the same as mockery, and controversial is not the same as provocative, let alone rousing or incendiary."

Woodbridge Winery didn't clear the legal hurdle required to show that special circumstances were present to justify a ban on Chavez's slogan, the judge said.

Besides the issue over Chavez's vest, Judge Sotolongo also concluded that Woodbridge Winery maintained an illegal rule in its handbook that restricted eligibility for a company incentive bonus only to nonunion workers, saying the policy, "by direct and clear implication, automatically disqualifies any employees represented by unions."

"Board precedent is clear and unmistakable on this issue: Employer rules, statements, provisions or plans that afford benefits to employees contingent on their non-representational status violate [NLRA]," the judge said. "The sin [in this case] lies in conveying the message that employees who choose union representation are automatically ineligible for any wages or benefits granted or offered to others, for no other reason than the mere fact that they chose to be represented.

Counsel for Woodbridge Winery and the union were unavailable for comment Monday.

Woodbridge Winery is represented by Michael A. Kaufman and Matthew R. Capobianco of Kaufman Dolowich & Voluck LLP.

The NLRB general counsel is represented by Lelia M. Gomez and Kenneth Ko.

The union is represented by Robert Bonsall and Stephanie Platenkamp of Beeson Tayer & Bodine APC.

The case is Constellation Brands U.S. Operations Inc. d/b/a/ Woodbridge Winery, case numbers 32-CA-186238 and 32-CA-186265, before the National Labor Relations Board.

By Vin Gurrieri
August 13, 2018 
Source: Law360

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