Coastside Scavenger Co.Download PDFNational Labor Relations Board - Board DecisionsJan 25, 1985273 N.L.R.B. 1618 (N.L.R.B. 1985) Copy Citation 1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coastside Scavenger Company and Sanitary Truck Drivers and Helpers Local 350, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-17305 25 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 June 1983 Administrative Law Judge Harold A. Kennedy issued the attached decision. The Charging Party filed exceptions and a support- ing brief, and the Respondent filed a brief in re- sponse as well as cross-exceptions and a supporting brief. 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,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. DECISION HAROLD A. KENNEDY, Administrative Law Judge. Based on a charge filed on August 9, 1982, by the Sani- tary Truck Drivers and Helpers Local 350, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Local 350 or the Union) the Regional Director for Region 20 of the National Labor Relations Board issued a com- plaint on September 24, 1982, charging Coastside Scav- enger Company (Coastside or the Company) with violat- ing Section 8(a)(5), (3), and (1) of the National Labor Relations Act (the Act). The trial took place in San Francisco, California, on November 10, 11, and 12 and December 15, 1982.' A number of matters were established by the plead- ings, including the following: 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. In numbering the pages of the transcript, the reporter went from p. 233 to 224 (instead of 234) so that the numbers 224-233 appear twice. The first set of such numbers are renumbered 224A-233A, and the second set of such numbers are renumbered 224B-233B. 2. Coastside has a place of business in Pacifica, Califor- nia, and is a California corporation engaged in the busi- ness of providing garbage pickup services. 3. Coastside is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It grossed over $50,000 last year and in the same time period purchased and received goods and materials valued in excess of $5,000 directly from outside the State of California. 4. The president and vice president of Coastside are, respectively, Mario Torrigino and Louis Picardo, and each is a supervisor and an agent of the Company as those terms are defined in the Act. 5. Since 1970 the Union has been the exclusive collec- tive-bargaining representative of a unit of Coastside em- ployees described as follows: All drivers, helpers, and mechanics employed by [Coastside] at its Pacifica, California facility exclud- ing office clerical employees, supervisors and guards as defmed in the Act. 6. Coastside and the Union have signed successive agreements, the last one being effective for the period August 1, 1979, to July 31, 1982. 7. About June 3, 1982, the Union, by letter, requested Coastside to bargain with respect to terms and conditions of employment. The Union and the Company met at var- ious times in June, July, August, and September 1982 for the purpose of negotiating a new agreement for the unit described above. 8. Certain Coastside employees represented by the Union went on strike on August 2, 1982.2 In addition to the facts established by the pleadings re- ferred to above, the following matters are not in dispute. The Union has been recognized as the exclusive bar- gaining representative of Coastside's drivers, helpers, and mechanics for 12 years. Collective-bargaining contracts were negotiated with the Union during the 1970s by one of Coastside's two owners, either President Mario Torri- gino—referred to during the trial as Owner Torrigino, Torrigino Senior, and as Mario—or Vice President Louis (Lou) Picardo, without a strike. Robert Morales, secre- tary-treasurer of the Union, represented the Union in ne- gotiating all of such agreements. Negotiations for a new contract commenced on June 17, 1982. Mario Michael Torrigino, the son of Owner Torrigino and referred to during the trial as Attorney Torrigino, Michael, or as Mike, was the Company's chief spokesman during the 1982 negotiations. Morales, who attended all of the 1982 bargaining sessions except the first one, which was attended by Union Business Repre- a Attorney Michael Tomgino, company spokesman during the 1982 negotiations and son of Mario Tomgino, testified that Respondent is "run by the two owners," Mario Tomgino and Louis Picardo, and has 7 trucks and about 15 employees. Merced Ramirez, an employee of Re- spondent who went on strike, identified six employees as "strikebreak- ers"—i.e., persons who continued to work for the Company after onset of the strike. The names and addresses of 10 employees who went on strike are listed in G.C. Exh. 26. Attorney Torrigino indicated that he believed that all of the strikers had been replaced by some time in Sep- tember 1982. Unless otherwise stated all dates refer to 1982. 273 NLRB No. 198 COASTSIDE SCAVENGER CO. 1619 sentative James Payton, was the chief spokesman for the Union. Bargaining sessions were held about the follow- ing dates: June 17 and 29, July 12, 21, 26 and 28, August 3, 6, 20 and 24, and September 7.3 Specifically, the complaint alleges Respondent violated Section 8(a)(5) and (1): (a) By failing "to delegate sufficient authority to its bargaining representative [Michael Torrigino] to bind Respondent to the proposals agreed upon during negotia- tions, thus hindering bargaining, and fail[ing] to bargain with the intent to reach an agreement." (b) By dealing "directly with its employees in the unit . . . by giving the employees its final contract proposal before such proposal was offered to the Union." (c) By demanding about August 21 and August 24 that the Union agree to waive striking employees' rights to reinstatement, allegedly "an unlawful condition of bar- gaining." (d) By refusing "to agree to terms of a collective-bar- gaining agreement which had been negotiated on August 20 and August 24, 1982."4 The complaint also alleges that Coastside "caused and prolonged" the strike that began on August 2 by "unfair labor practices." Further, the complaint alleges Coastside violated Sec- tion 8(a)(3) and (1) of the Act by refusing to reinstate strikers after the Union made unconditional offers on their behalf to return to work.3 Finally, the General Counsel and the Charging Party Union assert that there has been a continuing refusal to reinstate strikers and that Respondent further violated Section 8(a)(3) and (1) of the Act by hiring new employ- ees in the fall of 1982 (November and December), after 3 The General Counsel, the Charging Party, and Respondent agree that bargaining sessions were held on these dates. The Union and the General Counsel claim that a negotiating session was also held on July 16 which Respondent disputes. Whether such session took place or not is not "critical," as the General Counsel states, but I am not persuaded that it did take place. The supposedly "more precise testimony" of Morales on this point is relied on by the Charging Party as being more credible than that of Michael Torrigino, who said he could not remember a meet- ing on that date. Michael conceded during cross-examination that he was in error in previously testifying that he had discussed with Morales on August 20 possible withdrawal of certain litigation instituted by the Union (as the matter was not filed until later), and that a letter he sent on September 7 misstated the understanding reached on sick leave. He also acknowledged that there were events, or their timing, about which he could not be certain. Such concessions by Michael do not cause me to consider his testimony as unreliable. I specifically reject the contention that Morales' testimony "must be credited" over Michael's on the basis of demeanor, recall, or general memory. Actually, Morales' testimony about what happened on specific dates was not so precise. See, for example, Tr. 183 ("On July 16, we had a meeting, to the best of my ability—I am con- fused between two days . . .") and 284-292. I believe the Charging Party's reference in its brief on p. 5 to a bargaining session being held on July 30 is a typographical error as it is not otherwise referred to in its brief. 4 Par. 12 of the complaint, which is in part duplicative of par. 11 (quoted in (d) above), alleges that the Union and the Company reached agreement on August 24, 1982, that the Union requested execution of a written contract on that date, and since that date through oral notifica- tion by its agent, has failed and refused to execute a written contract em- bodying the agreement described above." 5 Par. 17 of the complaint alleges that the Union advised the Employ- er's agent of the offer to return by phone about August 21 and in a bar- gaining session about August 24 and that on such dates the Respondent failed to reinstate such employees. commencement of the trial, without recalling any of the strikers. It must be determined whether Coastside violated the Act in the respects alleged above. Also, consideration must be given to whether the investigation conducted by Region 20 of the Board prior to issuance of the com- plaint was "so unfair and biased as to constitute a denial of due process of law," as Respondent asserts. Seven witnesses were called. A summary of their testi- mony follows. Leopoldo Perez identified himself as an employee driver of Respondent until he went out on strike at the end of July 1982. Perez said he was on the picket line thereafter "every day." On his last day of work, July 30, Owner Picardo asked Perez "for the key of the truck and for the keys of the route." Picardo then gave him (as well as other employees) an envelope containing a one-page doc- ument (G.C. Exh. 16) purporting to be a copy of the Company's "final offer." Perez took the document with him to a union meeting held that afternoon. Union offi- cial Morales spoke at the meeting and explained, in Span- ish and in English, that the document "was not the final offer" the Union had received from the Company. Mo- rales then stated to those at the meeting that "we go on strike because of Unfair Labor Practices." On August 23, Perez said he was "punched in the nose" while leafletting in a post office by an employee of Coastside. Perez said he thereafter received treatment at a nearby hospita1. 6 Perez testified that he was on the picket line shortly after the punching incident and ob- served Owner Torrigino, accompanied by two workers. According to Perez, Owner Torrigino commented, "He doesn't look that bad," and added, laughingly, "Oh, they got the wrong guy."7 Merced Ramirez testified that he had worked for Coastside Scavenger for about 17 years before going on strike and that he had been shop steward since 1970. He said he was a truckdriver for Respondent and had held a "captain's" position. Ramirez stated that on Friday, July 30, as he left work, Owner Lou Picardo gave him "and some other employees" a copy of General Counsel Exhibit 16, and then stated: . . . "I got this for you guys. That's a final propos- al. That's all I can do for you guys because I don't have enough money to support all the amount that you are asking for." And, of course, I—you know— and then he says, "Many business, they are closing here in Pacifica. We don't get enough money to pay you guys whatever you want." 6 Marcella Barton, who works in the Emergency Admissions Office of Mary's Help Hospital, testified that Perez came to the hospital for treat- ment on August 23. The hospital report (G.C. Exh. 36) which she helped prepare indicates that Perez reported he had been "hit by a scab" while delivenng papers to persons entering a post office. The report indicates that he complained of a nose injury and a cut lip. Barton said she called Coastside to Inquire whether the injury resulted from an industrial acci- dent and was told by "a gentleman" that Perez was on strike and no longer in the Company's employ. 7 The General Counsel's attorney stated that "We are not alleging that the Employer is responsible for the attack." 1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ramirez said he went home that afternoon and, before going to the meeting of Coastside employees and union members scheduled to begin at the Royal Inn in South San Francisco at 4 p.m., he called union official Morales and advised him that a company proposal had been dis- tributed to Coastside employees. Ramirez furnished Morales a copy of General Counsel Exhibit 16 at the start of the meeting. Morales returned it soon thereafter, explaining that he had received a copy of it from someone "about 3:15" that afternoon. Ramirez stated that Morales then spoke to employees during the meeting and that another union official, Jim Payton, stated "the same thing" to them in English. 8 Ramirez stated that he worked on the following day, Saturday, July 31, an "overtime day." When he finished his work that day he was told by Picardo. I am waiting for you guys in here Monday morning with that picket sign. I am bringing one for me, too. Ramirez stated on cross-examination that Morales ex- plained that the union office had received on the after- noon of July 30, around 3 or 3.15, a proposal from the Company "which was longer than the one-page propos- al." Also, on cross-examination Ramirez recalled that on the first day of the strike (Monday, August 2) there was a sign at the company yard which stated: "We are seek- ing permanent replacements for striking employees." Ra- mirez acknowledged that some Coastside employees did not go on strike, among them: J. Moylett, Allan Bernard (nephew of Picardo), Jose Castellanos, Miguel Castel- lanos, Ramon Castellanos, and Victor or Valentino For- nesi. It was brought out during cross-examination that Ra- mirez was discharged on February 2 but returned to work about 6 weeks later pursuant to an arbitration award that had converted the termination to a 10-day disciplinary suspension, along with some backpay (paid shortly prior to the start of the trial of this proceeding). Ramirez claimed at first that Owner Torrigino did not speak to him after his return in the spring of 1982 pursu- ant to the arbitrator's award, but he later asserted that Mario Torrigino had said to him, "You are responsible for bringing the Union in this Company" Ramirez said he was told by the Company when ter- minated in February 1982 that it was because he "broke the truck on purpose and a lot of that bulls—." Robert Morales testified that he had served as business representative of Local 350 from 1973 to 1976 and since that time as the Union's secretary-treasurer He said he had negotiated for his Union a collective-bargaining agreement with Torrigino Senior around 1973 and an agreement with Lou Picard() in 1979. He stated that in 1982 he participated in arbitrations involving Merced and Victor Ramirez.9 8 Ramirez said his "first language" is Spanish but that he could read "a little bit" of English Ramirez indicated nothing was said at the meeting that day about a strike 9 G C Exh 28 is an arbitrator's "interim award" dated June 2 reinstat- ing Merced Ramirez G C Exh 29 is the arbitrator's "opinion and award," dated June 18, finding Merced Ramirez deserving of "discipli- nary suspension" of 10 days rather than discharge for being "in the wrong" plus backpay (estimated at $8000 by Morales) G C Exh 30 is of Morales also testified that the Union and Coastside had agreed to settle a grievance of Aurelio Navarro, follow- ing the filing of a lawsuit by the Union, on terms that provided for Navarro's reinstatement and payment of a $4000 "damage award" (not yet accepted by the employ- ee) Morales testified that, prior to the first bargaining ses- sion held on June 17, the Union had prepared proposals (G.C. Exh. 2, dated June 3) for Business Representative James Payton to present to the Company. Morales said he decided to become "directly" involved in the negotia- tions after conversing with Payton about what happened at the first bargaining session. Morales stated that he asked Mario Torngino" at the second session whether Michael had the power to act for the Company, "and he says, 'Definitely." Morales said he continued to inquire about Michael's authority to act "like a broken record" at every meeting. Morales said he had received a copy of company pro- posals set forth in Michael's June 21 letter (G.C. Exh 4) before the June 29 meeting At the meeting he said he "kept insisting" that the Company respond to "economic issues," while Michael "kept insisting" that "we get the contract language out of the way." Morales disagreed with the way Michael classified "economic" and "lan- guage" issues, contending that Michael proposed "eco- nomic changes" in the form of only changing language. Morales referred to Michael's initial proposals with re- spect to health and welfare matters, pensions and the change of workweek (so Sunday, normally not worked by Coastside employees, and Saturday would not require payment of any overtime) as illustrations of Michael's confusing classification." Morales indicated these items the arbitrator's "opinion and award," dated June 18, disciplining Victor Ramirez, in the form of a 10-day suspension, but providing for his rein- statement and backpay G C Exh 31 is a "supplementary award" of arbi- trator dated October 27 in favor of Victor Ramirez Morales testified that Coastside had satisfied Merced Ramirez' backpay award, but he was not aware that Victor Ramirez' had been paid G C Exh 31 indicates, how- ever, that the Company had paid Victor Ramirez $6284 12 ' ° Morales testified that Michael told his father to "shut up" at two or three bargaining sessions, but he appeared to be uncertain which meetings the father did attend Morales Indicated he thought the father was present at the second bargaining session on June 29 and stated, "I want to be able to fire people without union intervention" Such comment, Morales said, prompted Michael to say, "Shut up, Mario" Morales later acknowledged on cross-examination that Torrigino Senior attended bargaining sessions on June 17 (Morales not present), June 29, July 26, and July 28 " Morales sought to denigrate Michael's labor relations expertise and enlarge on his own Morales indicated that he educated Attorney Torn- vino about such things as trust funds and maintenance of benefit con- cepts—for which Michael supposedly expressed appreciation Morales did not persuade me, however, that Michael sought to put through sub- stantive changes in the guise of changing language as a stratagem or ruse Morales indicated, by his own testimony, that Michael explained that the Company's health and welfare plan, irrespective of whether it provided for maintenance of benefits, would Involve a "lesser price" for the Com- pany, that the Company proposed cutting pension contribution from 70 cents to 25 cents per hour and that a change in the workweek would reduce the amount of overtime Coastside would have to pay Testifying under questioning of the Union's counsel, Morales indicated he had con- siderable labor relations experience having negotiated as many as 30 agreements On cross-examination Morales dented "Iectunng" to Michael about any Sunday work but did acknowledge that the old contract cov- ered any work performed on Sunday Morales also indicated that the Union had proposed a change that would preclude the Company employ- Continued COASTSIDE SCAVENGER CO. 1621 were discussed at the June 29 meeting as were other issues—the number of holidays and the effective date of the new contract and lack of any proposed wage in- crease from the Company. Morales said he objected to the Company's health and welfare proposal, which pro- vided for no maintenance of benefits, to the reduced pen- sion contribution (from 70 cents to 25 cents) and the change of workweek so that Saturday and Sunday would be "regular days," and the proposed effective date of the new contract, January 1, 1983, instead of August 1, 1982 (affording no holiday between August 1, 1982, and Janu- ary 1983, according to Morales). 1 2 At the July 12 meeting the "Witnesseth" clause was discussed, with Morales suggesting appropriate language (set forth on G.C. Exh. 8), along with the pension contri- bution (Michael still proposing to "reduc[e] it by 45 cents") and a supposedly "better" company health plan. Morales said the Union made a concession with respect to Saturday overtime (accepting a guarantee of 6 rather than 8 hours), and Michael added two more sick days "with pay-off" and an additional holiday, "Cinco de Mayo" (May 5, the Mexican Independence Day) Mo- rales indicated that he thought agreement was reached at that point and he asked about Michael's authority to act, "not seeing his father there" Michael assured him of his authority, Morales said, with Michael saying, "I can guarantee you." Even though Morales indicated he thought agreement was reached, he said he accused Mi- chael of "playing games" with his "nonsense language" and not wanting "to discuss a complete economic pack- age." Morales said he volunteered to meet anytime as the contract was about to expire. The fourth (Morales' third) bargaimng session took place, according to Morales, at the union hall on July 16, starting late around 10:45 a.m. It was to have taken place at the Chamber of Commerce building in Pacifica, Mo- rales said, but Michael had gone instead to the Royal Inn. Morales indicated at one point in his testimony that the meeting at the union hall took place "in the middle of the month of July and I had asked for [Michael's] father and he said that he was on vacation." After com- menting that neither of the owners was present at the meeting Morales said he again asked Michael if he had "intentions to negotiate a contract and to finalize it," and Michael again assured him that he had the power to rep- resent the Company. Morales said he kept questioning Michael's authority, citing various reasons I was very concerned, and I came down with the impression that, number one, because of his inability to understand the contract, that we were running out of time, and that everytime that we discussed, mg a worker on "straight time" on the weekend Attorney Torngino tes- tified that only one employee normally works on Saturday, but "about everybody worked" on the first Saturday of each month 12 Morales identified a letter, G C Exh 7, that he said he hand deliv- ered at the June 29 bargaining session It asks for a response to the Union's initial proposals and also questions Michael's classification of issues Morales testified that at this meeting the Company wanted to be paid a fee for deducting dues for the Union, considered to be a noneco- nomic item by Michael, and that he and Michael disagreed on the proper classification of a number of items discussed that day well, he would say, "want to check this out" . . . . You know, he gave me the impression that he did not want—he did not want to settle the agree- ment. . . . Morales said Michael made the Company's first wage proposal when the parties met at the union hall which he described as follows: [Michael] says, "I know you are going to be upset, but I am going to give you our proposal on wages." And I said, "Go ahead, we've got to get it some- time or another." And he gave me a proposal of 10 cents per hour the first year, five cents per hour the second year, and five cents per hour the third year, with no cost of living index, which he said his father was against it, and that he would never agree to a cost of living clause. Morales indicated during his testimony that he thought there were bargaining sessions on both July 16 and 21 and that the arbitrations that the Union sought on behalf of Navarro and the two Ramirezes were discussed at each. Michael had proposed use of the language that would eliminate the need for warning letters and allow terminations "for just cause," noting that his father was very upset over the cost of the "two arbitrations and a court case" that sought an arbitration. Morales said he explained to Michael that his (Michael's) proposal was "very dangerous" and suggested an alternative—keeping the employees on the payroll pending the outcome of their grievances—which Michael thought "would be ac- ceptable" and "satisfy" his father." On July 21, according to Morales, the parties agreed on "equipment" benefits—after Morales "explained" mat- ters of safety and security to Attorney Torrigino—with Michael agreeing that the Company would increase shoe allowances from $35 to $45 (with a maximum of two pairs each year) and no assessment to employees for gar- bage cans (supposedly in accord with the law but con- trary to Owner Torrigino's desires)." Initially, Morales thought two Federal mediators, as well as Michael's father, attended the bargaining session held on July 26." Morales was uncertain how long it " Morales stated that the language he proposed, which he said Mi- chael accepted on July 16, was later typed out and shown to Michael on August 3 Under questioning by Charging Party's counsel, Morales said he also explained to Michael on July 16 that he should not attempt to change sec 24, "Public Authorities and Agreement," as Michael was pro- posing, stating that it would open up "a can of worms" The Company had "given up" on this item, he said, by "July 12th and/or 16th" 14 On cross-examination Morales stated that Pedro Navarro had filed a grievance over efforts of the Company to collect payment for damage to garbage cans Morales said the Union proposed a change in sec 16 "be- cause of the experience of the grievances" Morales maintained that on that day the Union insisted on an increased pension contribution and that the health and welfare plan was discussed He claimed that "all the Issues were outstanding" up to that date and even on August 2, when the stnke began, "because they had not bargained in good faith" On redirect, how- ever, he mentioned agreement was reached on vacations and maintenance of benefits 15 Morales later indicated he thought the two Federal mediators came only to the July 28 meeting 1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lasted, but it was his recollection that the duration of the new contract and Coastside's plan to obtain an increase of rates from Pacifica's city council in January 1983 were discussed. Michael wanted, Morales stated, a 3-year contract that would not commence until January 1983, the earliest time the Company supposedly could offer any wage increase.' 6 Morales testified that he and his union colleague, Jim Payton, walked out of the July 28 bargaining session "out of desperation" after discussing certain subjects— what the date of the contract should be; sick leave, a matter Morales said he thought had been previously agreed on (i.e., 12 days); and wages, a subject opened up by Morales, who explained that the Union was asking for only "parity for the area," resulting in a response of "no way" from Mario. Morales said the union officials walked out because the "conduct" of the company repre- sentatives indicated they did not want to finalize any agreement with the Union but wanted it to agree to allow the Company to discharge employees. Quoting Morales: [T]hey gave the impression that I should have the authority to say to them, "Yes, you can fire Victor Ramirez. You can fire Merced Ramirez. You can fire Aurelio Navarro. You can fire Pedro Navarro. And there will be no problem." Morales stated during cross-examination that he did not have "a clear recollection" of the July 28 bargaining session but stated it "started like any other negotiating meeting." He indicated later that a Federal mediator at- tended the session as did Torrigino Senior, who was "there sitting silently." Morales maintained that it was a "nonsense affair of negotiations," but added: And I will say this: That I am not critical that, in the case of Michael, he did it with intention; it's just that he didn't know, like me trying to fix your car and I am not a mechanic." Morales agreed on cross-examination that at the July 28 session additional subjects were discussed—pensions (with the Union proposing a lesser increase); vacations (previously "agreed to that already," according to Mo- rales, except that the Union continued to press for 4 weeks' vacations for employees with 7 years with the Company); discharge and suspension language (a "settled issue," Morales maintained, although he agreed that he had not yet submitted in writing the language previously suggested that was reportedly acceptable to the Compa- ny); "Item 16" (supposedly resolved previously but "set- tled" again that day); sick leave (previously settled but reopened by the Company as to the "payoff"); and griev- ance and arbitration provision. Morales maintained that " Morales said he expressed concern over the fact that there would be no agreement between August 1982 and January 1983, but he acknowl- edged that Michael had offered a "Letter of Understanding" covering such period 17 Morales stated later that he "felt that the company was not dealing in good faith" because It had sent "the kid [who] didn't have any experi- ence in regards to a labor contract" Morales stated that Attorney Torn- gino had "always been very polite with us" the last item, referred to as item 23, had been previously settled, but he conceded that discussion of it that day "could have" triggered the walkout by him and union official Payton. After the union officials walked out, Morales instruct- ed Payton to get in touch with Owner Lou Picardo in an effort to get him involved in the negotiations. Morales said Payton then did two things, at Morales' direction: (1) called Picardo and offered to sit down and negotiate immediately "with somebody who had real power and real desire to negotiate" and then (2) confirmed such offer by telegram. The response Picardo gave was not promising. Said Morales: My indication from Mr. Payton was that Lou Pi- card° again told him just to strike their "f" with an "ing" asses. "They deserve it, they got it coming, and I am going on vacation. I don't care."' 8 July 30 was an eventful day, although no bargaining session was held. Around 3 p.m. a messenger hand deliv- ered to Morales at his office a 4-page letter from Attor- ney Torrigino containing several company proposals (G.C. Exh. 17). Morales said he learned earlier, around 12 noon or 1 p.m. when Merced Ramirez telephoned him, that "a final proposal" of the Company (G.C. Exh. 16) had also been distributed to employees that day. Mo- rales stated that he received a copy of the latter docu- ment, signed by "Mario Torrigino" and "Louie Pi- cardo," at the Royal Inn at South San Francisco around 4 p m., about the time a union meeting was due to begin. Morales stated that he had called the meeting "to give the men an up-to-date report" on the status of the negoti- ations with Coastside. Morales spoke to the "member- ship" in English and in Spanish, and Payton also offered some comments. Morales said he explained that the Company had sent out "two different sets of docu- ments," one from the officers of the Company and an- other, described as "outrageous" and indicative of "con- tempt for the Union," from the Company's attorney, and that he (Morales) was calling a strike. Morales said he also told the men at the meeting: I had learned that the Company again had commit- ted another Unfair Labor Practice by going directly to the employees without my knowledge and prior to giving the Union what was considered in their mind a final proposal. Morales testified that after the strike began (on August 2) he attended additional bargaining sessions on August 3 and 20. The August 3 meeting took place, Morales said, is Morales said he had sought Picardo's held earlier in the month, tele- phoning /um on two occasions about the time of the July 16 meeting when Mario was on vacation Morales said he explained to Picardo in the first conversation that the contract was about to expire and that the par- ties were making no headway in the negotiations due to Michael's lack of knowledge Morales said Ptcardo's response was "Bob," he said, "it is my opinion," he said, "that you should get your 1' signs and strike their asses because they don't want to listen to me" Also, he said, "I want you to know," he said, "that begin- ning August 1st," he said, "I am going on a one-month vacation and I don't give a shit" COASTSIDE SCAVENGER CO. 1623 at the Royal Inn at "South City" and was attended by Attorney Torrigino, Payton, himself, and a Federal me- diator. Morales said he hand delivered a letter (G.C. Exh. 18) containing certain union proposals at that meet- ing. Morales stated that Michael agreed to a union pro- posal, set forth on another typewritten document (G.C. Exh. 33, displayed but returned to "my briefcase," he later explained because Michael "was backing away") that pertained to discharges and suspensions (identified as sec. 12 and providing for an employee to remain on the job if discharged). According to Morales, Michael stated the Union's proposal was "good" and "I accept this." With respect to the August 20 meeting, Morales said the parties first met in the morning, and then in the after- noon he and Michael concluded an agreement in a pri- vate meeting. Initially the parties discussed "amnesty" for Respondent's "loyal employees" (replacements) and Respondent's recall of strikers. Morales said he "pro- ceeded to explain" to Michael what amnesty meant and that as secretary-treasurer of the Union he could not give it; also that he (Morales) must demand that every- one on the picket line be allowed to return to work. Mi- chael indicated that his father would not consider taking back five of the strikers, initially identified by Morales and confirmed by Michael to be the following: Merced Ramirez, Victor Ramirez, Pedro Navarro, Aurelio Na- varro, and Leopold Perez. Navarro had filed "various" grievances against the Company, Morales said, including one which objected to Coastside's attempt to charge Na- varro for the cost of a garbage can and another over the failure of the Company to pay overtime for washing equipment (trucks).' 9 Morales testified that he took the lead that afternoon to settle the strike and requested, through the Federal mediator that was present, a private meeting with Michael—after asking and getting Mi- chael's assurance that he had the power to act. According to Morales, all of the outstanding issues were discussed in the private meeting, 2° including wages (Michael accepted one of two offers made by Morales "$1.55, and 55 and 55"), cost of living (dropped by Mo- rales), washing of truck (dropped by Morales), pensions ("three nickels divided into three years"), and income protection (raised from $40 to $60) and dental plan (90 percent of the usual and customary fees), and they emerged from the meeting telling the mediator that was present that day: "It is over, and we cannot give you any specifics." Before coming out of the meeting Morales said the two shook hands, Michael expressed his thanks, and Mo- rales expressed his willingness to "help the company with the City Council politically and see that you get your raises, whatever you got coming." Michael then wrote his home phone number on the back of a business card and told Morales: 19 Michael testified that the Company might take "some" strikers back but that only one vacancy existed at the time. 20 Morales indicated matters previously agreed upon were also dis- cussed, including these: sick leave, "Section 12" language, shoe allow- ances, holiday and vacation benefits, and the effective date of the con- tract. Bob, I want you to call me tomorrow at 10:30 a.m. and I will tell you the time when your men should return to work. Morales said he telephoned the following morning, a Sat- urday, as Michael had suggested and had a telephone conversation which he described as follows: At 10:30 a.m. in the morning I phoned him and I said . . . I am calling to definitely obtain the times when you want my men to go back to work. And he went silent and took, like, a few seconds. And I said, "What's wrong?" And he said, "My father did not buy it." And I said, "Jesus Christ, you mean to tell me that you are going to come back with the same bullshit all over again? You gave me to under- stand that you had power to act, that you had in- tentions of finalizing the contract, that you had the intention and that it will be over after we shook hands, that I was going to help the Company." "And now," I said, "you come out with this bull- shit." And he said, "Bob," he said, "I apologize. I don't blame you for being upset." He said, "But, be- lieve it or not, my father did not buy it." And I said, "You know, man, for being a lawyer you have no ethics." And I said, "You should not enter into any agreements ever to which you have no right on entering. But I told you we had an agreement on behalf of the Union." I told him, "I took the re- sponsibility that I was going to live by my agree- ment, and what you are doing to me," I said, "you know, you have no class." And I hung up on the Morales said he was very upset by his telephone con- versation with Michael and on the following day, Sunday, August 21, called "my lawyer Bert Boltuch" to ask him to telephone Michael. To vouch for the fact that Boltuch did so, and declaring it as "not hearsay," Mo- rales referred to a letter (R. Exh. 5) that Boltuch had sent to Michael. Another bargaining session was thereafter held at the Royal Inn in South San Francisco on August 24. Mo- rales said he requested the meeting, through Federal Me- diator Glenn Bergerson, who attended the session, along with Morales, Jim Payton, and Attorney Torrigino. Again, Morales said he asked Michael whether he had power to act and Michael responded: I definitely have the power to act on behalf of the Company. I defmitely have the power to sign a contract. I definitely have the power to finalize the existing situation that we have. Attorney Torrigino proceeded to outline a company proposal or "settlement offer" which called for an in- crease in wages (70 cents effective August 1, 1982, 70 cents the second year, and 70 cents the third year), noth- ing on pensions; withdrawal of Cinco de Mayo holiday (denied on cross-examination, however); elimination of the "pay-off' for the 2 extra days of sick pay if not used; withdrawal of income protection plan (i.e., no increase); the 90-percent dental plan; 4 weeks' leave of absence for 1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD funerals; and acceptance of the Union's section 12 (dis- charge and suspension) language, said to have been agreed to "on August 3rd and again on August 20." Mi- chael also indicated there was no problem "on anything else that we had already agreed to," according to Mo- rales who then asked the "main question: Will my men go back to work immediately?" In response Michael said that the Company did not want the men back, and Mo- rales asked Michael if he were "making this as a condi- tion of your package?" "Yes," he said, "My father does not want these people back." Morales testified that he then told Michael, "You are involving yourself in an- other unfair labor practice because you are making it as a condition of your offer." Morales indicated Michael changed his position at this point and extended an offer that would permit the strikers to return to work. 21 Quot- ing from Morales' direct examination: "Look, Bob," he said, "I tell you what I am going to do." He said, "If you stay within the scope of my economical offer that I am giving you, that will be no problem." Morales indicated he summarized Michael's offer and once more asked if the Company would reinstate the strikers. And he said, "If you stay within these amounts," he said, "yes, we will take them back." Morales indicat- ed in response that there was agreement but asked Mi- chael if he would allow him "a few minutes with Jim Payton" to "play with the figures." Michael agreed, saying there was no more money to be had but that as long as the Union stayed "within the scope of the $2.10" (i.e., the "70, 70, and 70" wage offer), "you've got your- self a deal." Morales said he gave Michael his word, in front of Payton and the mediator, he would stay within the $2.10 and excused himself and Payton. 22 Morales said he worked out an arrangement in about 7 minutes staying within the $2.10, but was never given an oppor- tunity to present it. 23 Morales said he called the media- tor and Michael together and stated, "Okay, Michael, we got it." Before he was able to give him the sheet of paper showing Morales' figures, however, Michael an- nounced that his father would not agree. Morales said he then told Michael, "You've got to be shitting me again . . . I can't believe it," and Michael said, "I apologize." James Payton, business representative of the Charging Party Union, testified that he went to Respondent's 2i Responding to questions of the General Counsel on redirect con- cerning the August 24 meeting, Morales testified that Michael indicated that day that the Company would take back one striker Morales said he rejected the offer and "told him that my condition will be that the com- pany will have to take everyone back to work" because of the Compa- ny's unfair labor practices Thereafter, Michael offered to take all of the men back if the Union would accept his money terms-1 e, "As long as you stay within the money wage offer, there'll be no problem"—but thereafter withdrew the offer after Morales conferred with Business Agent Payton "In the room alone" Morales stated later (on recross) that he wanted all of the strikers back "at that particular time because of the violence at the picket line" 22 Morales testified he "took five cents out of the second year and five cents out of the third year, borrowed ten cents from the two pennies" to Increase the income protection plan, pension and payoff on the sick leave 23 On cross-examination Morales agreed that, as stated in his affidavit, before conferring with Payton privately on the figures he told Michael "to make phone calls, if he had to" premises a little after 4 p.m. on September 8 and, aftei seeing the employees on strike there (listed in G.C. Exh 26), spoke to Lou Picard°, part owner of Respondent Payton said he told Picardo that "we have a contract' and added: "The men are here, they're willing, they're ready and able to go to work." Picard° said he would have to speak with "his attor- ney" and went back into the office. Five minutes later Picardo returned and stated that there was no contract. Payton said he asked Picardo if he were refusing to let the men return to work, and Picard° replied, "Yes, that's right" Payton said he then put up a picket line with signs that contained the words "unfair," "Coastside," and "strike." Payton was later recalled by Respondent and was asked if the union membership voted on the Company's "final proposal" at the July 30 union meeting. Payton stated that no vote was taken, adding that in his opinion the Company had engaged in an unfair labor practice in giving out "2 different sets of proposals" that day. He confirmed that both he and Morales spoke at the meeting that day and that employees were told they were not properly informed as the proposal handed out to employ- ees that day (G.0 Exh. 16) did not explain the "lan- guage proposals" that were contained in the final propos- al that was sent to the Union (G.C. Exh. 17). Payton said that the employees did vote unanimously before July 30 to go out on strike. Payton also testified that during the negotiations Mo- rales had made an oral proposal concerning discharges which would allow a worker to remain on the job pend- ing outcome of a grievance procedure. Attorney Torri- gino did not like it at first but later accepted it. Payton said Morales showed the company attorney a typed pro- posal later, on August 3, and then put the paper back in his (Morales') briefcase. Mario, Michael Torrigino, referred to during the trial as "Attorney Torrigino," "Michael" or simply as "Mike," said he was retained by Respondent's owners, his father and Lou Picard°, to represent them in negotiating a con- tract with Local 350 in 1982. He had had no prior expe- rience in labor negotiations. Michael said he was author- ized in early June by the owners to present "their terms" to the Union, agree to such terms, and reach compro- mises. Michael stated that he conferred with the owners before the negotiations began on June 17, explained what he hoped to accomplished during the negotiations, and obtained "full authority to go after the goals that I stated." He said he reviewed with the owners a draft document with proposed language changes. Michael also indicated that he would confer with the owners after bargaining sessions and reduce to writing matters that had been agreed to (referring specifically to G.C. Exhs. 9, 10, 11, and 14). According to Michael, at the first bargaining session, which was held at his office on June 17, he read the Union's initial proposal (G C. Exh. 2) and asked union official Payton questions about it. (The Company's initial proposal, dated June 21 and received in evidence as G.C. Exh. 4, was being typed that day and was mailed later to COASTSIDE SCAVENGER CO 1625 the Union, Michael said.) Michael said he asked if the Union was proposing a wage increase. Payton acknowl- edged that the Union's initial proposal overlooked such issue, and Payton indicated, as Michael recalled, that the Union would be requesting a $2 hourly raise. Michael stated that his father accompanied him to the June 29 bargaining session. Morales joined Payton in rep- resenting the Union at this meeting and handed Michael General Counsel's Exhibit 7, the Union's ("We do not understand your position") response to the Company's initial proposal. Morales did not want to deal with "non- economic" or "language" Issues, as Michael had pro- posed, and, after accusing the Company of not wanting an agreement, walked out of the room into a hallway, taking Payton with him. The union officials returned, however, after Michael asked whether they were refus- ing to bargain, and the parties then began to discuss the Company's initial proposal, item by item The meeting ultimately adjourned with each side requesting written responses to the initial proposals of the other. Michael said he prepared a response (G.C. Exh. 11) on July 5 for the Union and received the Union's response (G.C. Exh. 13) at the next bargaining session held on July 12.24 Using notes to refresh his recollection, Michael indi- cated he thought an agreement was reached on certain matters at the July 12 meeting, including union security (secs. 2(a) and 2(b)); section 6(b), so "missed pickups" would be handled without extra compensation when oc- curring due to a crew's fault; and funeral leave (actually agreed to in Michael's July 5 letter). Other subjects were discussed, including the witnesseth clause (agreed to on July 21, he said) and the discharge and suspension and grievance and arbitration provisions." Michael initially testified that he offered an additional holiday (making it 12 in all) on July 21, and that Morales responded, "Thank you. Let us go to the next point." Later he indi- cated that he made the offer on July 28 when Federal Mediator Glen Bergerson was in attendance. In any event, Michael claimed that Morales never said he would drop the demand for additional holidays. Michael testified that the Company had wanted to revise the grievance and arbitration language so as to make it clear who should give notice and when. Michael 24 Testifying on cross-examination, Michael stated that the "ranting and raving" by Morales at the June 29 meeting caused him to believe that Morales had not read the Company's initial proposal Michael said Morales "was ranting and raving and insulting me at virtually every in- stance" during the negotiations Michael agreed that he had drawn a dis- tinction between language and economic proposals, but he denied that he had insisted that his language changes must be first accepted Michael also denied that he had maintained that the Company's initial proposal to reduce holidays and pension contributions involved only language changes He said he had explained that a change in discharge and suspen- sion language "would be worth X amount of money," but he acknowl- edged that the language changes he sought would have resulted only in minimal savings to the Company 65 Michael said the discharge and suspension language was a recurring issue during the negotiations He said Morales never submitted language on the subject before the strike, although Morales later showed him a written proposal (G C Exh 33) on August 3 and asked Michael to sign it Michael said he told Morales at that time he would sign It "right now" if it would settle the strike, but Morales balked, saying the Union wanted more money and there were other Issues Michael said he never agreed to the Union's proposal that a discharged employee could stay on the pay- roll "until a discharge was decided indicated the subject had been pursued earlier, but on July 28 Morales "stormed out" of the bargaining session that day while the topic was being discussed. According to Michael, Morales maintained the Company was not bargaining in good faith, that it was changing positions and "he was going to call a strike." 26 Michael stated that he then undertook to prepare the Company's "last, best, and final offer" (G.C. Exh. 17) and submitted it on July 30 to Federal Mediator Bergerson. Michael said he asked the mediator to call Morales and try to arrange a meet- ing that day, but none took place.27 Michael testified that he was made aware of the Union's July 29 telegram that was sent to the Company's office indicating to him, he said, that the Union was will- ing to negotiate with Picardo. The parties met again on Tuesday, August 3, the day after the Union went out on strike. Certain issues were resolved, including dental, holidays, shoe allowance (equipment), and truck washing (guaranteed hours) that day, but several issues remained unresolved—i.e., income protection, pension, vacations, discharge and suspension, garbage cans, wages, and sick leave." Michael stated that during the August 6 bargaining session he handed Morales a letter (G C. Exh. 20) which withdrew all offers because "the rules of the game" had changed: employees had gone on strike and put the Company to inconvenience and expense. Michael said he did not present the letter at the beginning of the meeting but did so after giving the Union another chance to accept the Company's final offer of July 30 Michael recalled meeting with the Union and a Feder- al mediator on August 20, but he did not believe that amnesty was discussed first (as Morales had testified). Michael said he had a private caucus that day with the mediator and during such meeting spoke by telephone with the Company's counsel, "John" Harper. According to Michael, Morales had insisted that "all my men have to go back to work immediately," and the response Mi- chael gave was to the effect that: . . the company was not willing to fire people that we had hired to permanently replace the strik- ers; that we would place them on a preferential hiring list and call them back as vacancies occurred. 66 On cross-examination Michael agreed, after reviewing his negotiat- ing notes and the letter he wrote on July 28, that there were a number of issues outstanding when the parties convened that day Michael denied agreement had been reached on sec 12, discharges and suspensions (or apparently on sec 23, settlement of disputes, either for that matter) as Morales had maintained "'Michael also explained on cross-examination that he "dropped off a copy of G C Exh 16, the document that was handed out to employees summarizing the Company's offer, around 11 a m that day He said he wanted the employees to have the information before the union meeting that was scheduled to take place that afternoon Michael stated that there was not enough time to prepare a Spanish translation of the Company's offer 26 G C Exh 18, the Union's August 3 letter addressed to President Mario Torrigino, sets forth the Union's view of the status of negotiations at the start of the session on health and welfare (income and dental care), pension, guaranteed hours, holidays, vacations, discharges and suspen- sions, equipment, sick leave, and classifications and wage rates 1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was a "joint session" that day, Michael said, and the mediator asked the Union its position, as he request- ed, on "the issue of mutual forgiveness regarding any lawsuits and charges that were pending" and "the issue of amnesty" for the Company's "loyal" nonstrikers. The Union responded that it could not grant amnesty, that it did not control the district attorney insofar as any pend- ing criminal charges may be involved and by reiterating its position on the issue of the return of strikers—i.e., that "all of their people" must be put back to work im- mediately. Mike had said he repeated his offer to use a "preferential hiring list and take them back as vacancies occurred." It was "at that juncture," Michael said, that Morales asked for a confidential "private off-the-record discussion." A private meeting between Morales and Michael fol- lowed and, according to Michael, each voiced his re- spective position concerning reinstatement of the strikers and the problems each had in representing his particular principals. Morales accepted (i.e., "reaffirmed" agree- ment on) Michael's offer of an additional holiday and truck washing proposal, offered Michael "two alterna- tives on the wages," and expressed a desire for a dental plan and immediate reinstatement of the strikers. Michael did not recall anything being said about discharge and suspension language. He was surprised, he said, at the progress made and told Morales that he would recom- mend approval of the "economic" changes that had been discussed. The relations had become "very cordial," Mi- chael said, and "it looked like we were going [to] wrap things up." 29 Michael recalled that Morales talked "about helping us with the City." Michael said he de- clined to call the owners that day as Morales suggested. Michael said he wanted to sit down with the owners in the hope of getting "them to come up" with additional money. Michael gave Morales his business card, which bore his home number on the back, and Morales agreed to call on the following morning. Michael met with the owners 3 ° that night, he said, but had to tell Morales the following morning, Saturday, August 21, when the latter telephoned around 10:30, that he was "sorry" but "they would not buy it." Michael said he told Morales that the Union was asking for "too much money," and the com- pany "won't fire all of their replacements." Michael said he told Morales that he would get back to him later, but before he did so the Union's attorney, Burton Boltuch, 29 Michael explained on cross-examination that he was initially author- ized to offer a wage Increase of 10 cents-5cents-5 cents per hour over a 3-year penod on July 21, which amount he could Increase by negotiating a cost-saving provision (e g, discharge language that would allow termi- nation for cause without utilization of a procedure requiring warning let- ters) On July 28 he was authorized to offer 60 cents, 60 cents, and 60 cents but "we did not get to that point" On August 20 Michael stayed with the Company's "last, best, and final" offer of "seventy, sixty-five, sixty-five," but Morales was wanting more in wages, suggesting 70 cents- 75 cents-75 cents or an alternative amount with fringe benefits Michael said Morales made proposals that day "on Just about everything" so that he had a total package to present to his father Michael stated that Mo- rales made termination of replacements and immediate recall of the strik- ers a condition of agreement, explaining that "the contract was worthless without " 39 But on cross-examination Michael said he was not sure that Lou Pi- card° attended the meeting with Torngino Senior on the night of August 20 telephoned on the following day, Sunday, around 10:30 or 11 a.m. Boltuch inquired, according to Michael, "why the company did not accept the agreement that had been reached on the 20th." Michael denied that any agree- ment had been reached and told Boltuch: "Look, the issues are money, and the company won't fire everybody like Morales wants them to." Boltuch suggested, Michael said, that there were different "ways to treat the replace- ments," but Michael responded that the Company would not fire all of the replacements." The parties met again, with a Federal mediator present, at the Royal Inn in South San Francisco on August 24. After meeting privately with the mediator, Michael made an offer on behalf of the Company to the Union, as follows: Bob, I have an offer, and I believe it is better than what we had been doing. I want you to consider it. The company is willing to offer seventy cents in the first year; seventy cents in the second year; seventy cents in the third year in wages. And I said, "In ad- dition to that the company is willing to leave on the table the dental plan; because we understand that's something that is very important to the union. However, in return for the increase in wages, I am removing from the company's offer the holiday, the pension increase, and I verified that the two days of sick leave that we had offered would be without pay-off, and vacations would stay the same." And, I made a preface, a comment that we would offer the money, the money, the dental plan, and, then, all of the other fringes, which were cost items to the company, would stay the same. Morales indicated he was pleased with the offer and asked what the Company's position was with respect to recall of the strikers. Michael responded by explaining that "this economic offer was in conjunction with our prior position that the . . . replacements would not be terminated and the strikers would not be returned imme- 31 It was later stipulated that Charging Party's attorney Burton Bol- tuch would testify, if called as a witness, essentially as follows Boltuch telephone Michael Torngino on Sunday, August 22, after Morales had telephoned Boltuch and reported that he felt that the parties had reached an agreement on August 20 Morales had reported that he felt that when the strikers were coming back was the only Issue left open, and Morales was to learn that fact on Saturday, August 21, when he was to call Mi- chael Morales had also reported to Boltuch that he had called Michael on August 21 and was told by Michael that there was no contract and that strikers could not return Boltuch inquired of Michael concerning the Company's position and whether he had authority to negotiate Mi- chael in response indicated the agreement of August 20 was "tentative," that he did have authority to negotiate and that the owners, his father and Picard°, were the only ones who knew why there was no agreement Michael did indicate, however, that money and the immediate return of the strikers were involved in the Company's decision Boltuch asked that principals, with authority to finalize settlement, be brought to a negotiat- ing session, and Michael, in response, suggested that all union members should also appear Boltuch told Michael that the Union wanted to con- clude an agreement, independent of the strike replacement issue, and indi- cated as much in a letter to Michael (R Exh 5) which he immediately prepared and mailed himself Michael testified that he was irritated by Boltuch's telephone call on Sunday, August 22, and he felt that he was being set up for a charge Michael stated that Boltuch disavowed being a negotiator for the Union but refused to say so in writing COASTSIDE SCAVENGER CO. 1627 diately." In response to Morales' inquiry about how many strikers could return right away under the compa- ny proposal, Michael said he believed that there was one opening at that time. After some quizzing of Michael by the mediator, Morales asked Michael: "If I accept your proposal, can I play with the money . . . move it around?" Michael agreed that he could as long as the cost to the Company was not increased. Morales asked for time "to work the figures" and suggested that Mi- chael call his father to find out how many strikers could return. Michael said he then spoke by telephone with the company owners, first with his father, and then Lou pi- cardo, who stated: "We are not going to fire anybody." Michael said he returned to the "meeting room" and told Morales that no vacancies existed. Thereupon Morales accused Michael of reneging on an agreement, of being unethical and of wasting Morales' time. Morales pro- ceeded to tell the mediator what the Union had of- fered—"a dollar, fifty-five, fifty-five; seventy-five, seven- ty-five, seventy-five; and, the fringe benefits"—during the private meeting between Morales and Michael on August 20 and left. Michael stated that another bargain- ing session was held on September 7, but he gave no de- tails concerning it. I reject Respondent's contentions advanced in support of "The Due Process Issue." Respondent had due notice of the charges against it and had the opportunity to appear at the hearing, present evidence, and be fully heard. Consequently Respondent has had its day in court and has not been denied due process or any procedural statutory right. See Green Spring Dairy v. CIR, 208 F.2d 471 (4th Cir. 1953). The Administrative Procedure Act does afford certain procedural safeguards, including the assurance of a lawful investigation, and it is well established, as Re- spondent asserts, that an agency must abide by its own rules and regulations. However, section 5(b) of the Ad- ministrative Procedure Act, relied on by Respondent, only requires that an informal means of settlement be made available. See Teamsters Local 282 v. NLRB, 339 F.2d 795 (2d. Cir. 1964). Further, the guidelines in the General Counsel's Casehandling Manual on which Re- spondent relies, sections 10056.3 and 10056.4, are not rules or regulations which the Board is empowered to enforce. 32 Section 3(d) of the Act provides that the Gen- eral Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issu- ance of complaint." Section 101.4 of the Board's State- ments of Procedure, subpart B, states: As part of the investigation hereinafter mentioned, the person against whom the charge is filed, herein- after called the Respondent, is asked to submit a statement of his position in respect to the allege- 32 Cf. Gulf State Mfrs v. NLRB, 579 F.2d 1298 (5th Cir. 1978). The administrative law judge and the Board in that case had allowed the General Counsel to proceed on charges (as being "reinstated") even though they had been withdrawn with prejudice and were time barred by sec. 10(b). The court of appeals denied enforcement of the Board's decision on this aspect of the case, noting that sec. 10120.5 of the Case- handling Manual prohibited such action. The court pointed out that vio- lation of the Board's "own internal procedures" in that case did adverse- ly affect Respondent's rights, depriving It of its 10(b) defense. tions. The case is assigned for investigation to a member of the field staff, who interviews represent- atives of the parties and other persons who have knowledge as to the charges, as is deemed necessary . . . The regional director may in his discretion dis- pense with any portion of the investigation described in this section as appears necessary to him in consider- ation of such factors as the amount of time neces- sary to complete a full investigation, the nature of the proceeding, and the public interest. [Emphasis added.] See Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, (9th Cir. 1978). The Accardi doctrine announced in United States ex rel Accardi v. Shaughnessy, 347 U.S. 260 (1953), thus, has no application to the case at bar. It is to be noted that the General Counsel has only issued a complaint, and it must be dismissed if the evi- dence does not sustain the allegations. None of the Board cases cited by Respondent are apposite to the case at bar. Electronic Components Corp. v. NLRB, 546 F.2d 1088 (4th Cir. 1976), involved a summary Board order, issued without a hearing, directing an employer to bargain with a union which had been certified by the Board without an investigation of the employer's objections to an elec- tion as required by Section 102.69(c) of the Board's Rules and Regulations. NLRB v. Western Cartridge Co., 138 F.2d 551 (2d Cir. 1943), involved "conduct" of the Board's trial examiner, and Texas Instruments v. NLRB, 599 F.2d 1067 (1st Cir. 1979), involved an "ALJ's lack of analysis" in writing a decision, giving the "appearance of stacking the deck." I reject the contention of the General Counsel and the Charging Party Union that Respondent failed to give its bargaining representative, Michael Torrigino, sufficient authority as alleged in paragraph 13 in the complaint. In their briefs, the General Counsel and the Union argue that Respondent sent to the bargaining table an inexperi- enced and incompetent negotiator who had no authority to consummate an agreement. They further maintain that the record establishes that Respondent never intended to reach an agreement with the Union. These contentions, and all arguments advanced in support of the 8(a)(5) and (1) charges, are likewise rejected. Section 8(d) of the Act defines the duty to bargain col- lectively as "the mutual obligation . . . to meet at rea- sonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment, or the negotiation of an agreement." Such obliga- tion does not compel either party to agree to a proposal or to make a concession. NLRB v. American National In- surance Co., 343 U.S. 395 (1952). The essential element in the bargaining principle is the serious intent of the par- ties to reach a common ground. Romo Paper Products Corp., 220 NLRB 519 (1975). A determination of whether a respondent has met the good-faith bargaining standard requires consideration of the totality of the respondent's conduct. M R. & R. Trucking Co., 178 NLRB 167 (1969), enfd. in part 434 F.2d 689 (5th Cir. 1970); and NLRB v. Insurance Agents, 361 U.S. 477 (1960). 1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although an employer is not required to be represent- ed by an individual possessing final authority to enter into an agreement, this is subject to a limitation that it does not act to inhibit the progress of negotiations. Car- penters Local 780, 244 NLRB 277 (1979). The degree of authority possessed by the negotiator is a factor which may be considered in determining good-faith bargaining. Lloyd A. Fry Roofing Co. v. NLRB, 216 F.2d 273 (9th Cir. 1954). While "tentative" agreements are not necessarily sub- ject to being withdrawn at any time for any reason, agreements reached on individual items during negotia- tions are not necessarily final and binding. NLRB v. Al- terman Transport Lines, 587 F.2d 212 (5th Cir. 1979). Quoting from the court's decision in Alterman at 221: As we have observed before, "probably in few other instances is the task of judging so difficult" than determining whether a party has fulfilled its duty "to enter into discussions with an open and fair mind, and a sincere purpose to find a basis of agreement . . . . The truth is that objective stand- ards are generally either unavailable or unavailing. And conduct done at one time judicially ascertained to manifest good faith, may, under other circum- stances, be a mere pretense." NLRB v. Herman Sau- sage Co., 5 Cir., 1960, 275 F.2d 229, 231. While Michael Torrigino had no labor negotiating ex- perience prior to meeting with the Union's officials in June 1982, it can hardly be said that he was an incompe- tent negotiator. The record discloses that Michael was a licensed attorney and had prepared himself for meeting with union representatives by obtaining and examining copies of contracts used in the scavenger industry. He conferred with a family friend, an official of another Union (IBEW), who furnished him with relevant materi- als to study. He conferred with the Company's two owners and advised them from time to time concerning the negotiations. Michael testified credibly that he was authorized by the owners to represent the Company during the negotiations and to make compromises and agreements in accord with terms that had been discussed. Michael was not granted absolute or unlimited authority, but that fact did not convict Respondent of bad-faith bargaining. Mario Torrigino, Respondent's president and principal owner, was unquestionably unhappy with employees Merced Ramirez, Victor Ramirez, and Aurelio Navarro because of the backpay the Company was required to pay them, and for that reason sought to change the dis- charge and suspension language so it could exercise "the prerogatives of management." But it was not bad-faith bargaining for the Company to seek such change." 33 The General Counsel and the Charging Party maintain that Mario Torrigino pressed for the language change so the Company could termi- nate employees at will. Such assertion is based on the testimony of union official Morales as to what Torrigino said and what the latter meant by it. Morales was hardly an unbiased witness, and, in any event, I reject such assertion The Company had a right, as Respondent suggests in its brief, to hold and voice an opinion that it should have the power to dis- charge an employee for cause, contrary to what the arbitrator found in Respondent was, of course, obviously concerned with economics—as was the Union—and sought to lower costs in a number of ways. But having such an objective and attempting to accomplish it did not amount to bad- faith bargaining. 34 The Company sought a number of concessions intially on pension contributions, vacations, and holidays and admittedly did not propose a wage in- crease until July 21 (and only a modest one then) when an additional holiday was proposed." The Company had discussed various proposals and made concessions and/or agreements on a number of issues, including hours of work, rest and lunch, leased equipment, and ad- ditional holidays. When employees went on strike, how- ever, there had been no agreement on wages, discharges and suspension, equipment, or on grievances and arbitra- tion. The Union's conduct is also relevant and must be con- sidered. See Continental Nut Co., 195 NLRB 841 (1972); also Times Publishing Co., 72 NLRB 676 (1947). It is to be noted that Morales undertook to "educate" Respond- ent's spokesman, Michael Torrigino, about labor rela- tions—what a negotiator could do and not do, what con- stituted unfair labor practices, and unlawful demands. Morales' walking out of negotiations on June 29 and again on July 28 did not help the Union's or the General Counsel's cause. At the June 29 session Morales respond- ed to Michael's efforts to discuss what Michael regarded as noneconomic or language issues as "bullshit" and briefly walked out with his union colleague James Payton. Morales and Payton walked out again on July 28 with Morales maintaining that Michael had attempted to change some things that had been "previously settled." The Union sought to avoid dealing with Respondent's designated bargaining representative on two occasions by going to the Company's vice president and part owner Lou Picardo and asking that he, rather than Michael, bargain with the Union. The Union, to be sure, also made concessions and agreed to a number of company proposals, but it is to be noted that the Union had adhered to its positions with respect to additional holidays and discharge and suspen- sion language. Morales claimed that Michael had agreed the case of Victor Ramirez, without first having to dispatch warning let- ters within a specified time period. Respondent also points out in its brief that the principal owner, Mario Torrigino, attended bargaining sessions on July 17 and 29, and July 26 and 28 pnor to the stnke, the last being when "extensive discussions on economic Items" were held. (The General Counsel claims erroneously that Mario "apparently" attended only two sessions.) Curiously, and in- consistently, one paragraph of the complaint alleges Respondent's bar- gaining representative had insufficient authority between June and Sep- tember 1982 to bind Respondent but elsewhere avers that Respondent re- fused to agree to terms or execute contracts that had been negotiated for it in August. Also, the Charging Party maintains at one point in its brief that "the company never delegated sufficient authority to Michael Torri- gmo" prior to the stnke but suggests subsequently therein that Michael had more than enough authority on June 29 and July 26 when he ordered his father, the principal owner of Respondent, "to 'shut up." 34 The Union and the General Counsel refer to Respondent's proposals as "radical" and "outrageously one-sided," Implying that they were un- lawful per se. 35 An additional increase was proposed before the strike by letter on July 28 Michael said he submitted the wage proposal at the July 28 bar- gaining session and was authorized to increase It. Morales and Payton walked out of the meeting, however, so it was not discussed. COASTSIDE SCAVENGER CO. 1629. in July to the Union's proposal that would require reten- tion of a discharged employee on the Company's payroll, but I find otherwise." The Company's "last, best and final offer" of July 30 in the form of a hand-delivered letter modified its posi- tion on discharge and suspension (with the Company agreeing to a provision requiring three offenses within, 6 months and issuance of two warnings except for certain specified offenses) and indicated agreement on a number of items. The letter (G.C. Exh. 17) indicated Respondent was willing to meet and "discuss these matters" but noted that "since you walked out of our last meeting we will leave it up to you to propose another time and place and to notify Mr. Bergerson." The sending of such letter and the distribution of a different "final offer on econom- ic matters" to employees 2 or 3 hours earlier prompted Morales to call a strike against Respondent "on the basis of Unfair Labor Practices." The General Counsel and the Union maintain that sending of the different "final offer" to employees was an attempt to bypass the bar- gaining representative and deal directly with the employ- ees, constituting a separate 8(a)(5) violation, but I reject such contention. In Procter & Gamble Mfg. Co., 160 NLRB 334 (1966), the Board stated: As a matter of settled law, Section 8(a)(5) does not, on a per se basis, preclude an employer from com- municating, in noncoercive terms, with employees during collective-bargaining negotiations. The fact that an employer chooses to inform employees of the status of negotiations, or of proposals previously made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith [citing NLRB v. Reed & Prince Mfg. Co., 118 F.2d 874 (1st Cir. 1941)]. General Counsel's Exhibit 16, the document distribut- ed to Respondent's employees, outlined the Company's major proposals that were sent by letter to the union office. General Counsel's Exhibit 16 in no way dispar- aged the Union of its bargaining representative status, was not coercive, and amounted to "no more than a le- gitimate tactic of urging the employees to communicate with their representative, to persuade them to tell their negotiators they wanted them to accept the company's newest offer." See Safeway Trails, 216 NLRB 951 (1975); 36 The correspondence does not indicate such agreement was reached. See G.C. Exh. 17, Attorney Torrigmo's July 30, 1982 letter to the Union. Union Business Respresentative Payton gave equivocal but unpersuasive support to Morales' claim that agreement had been reached on this Issue. Payton stated that Michael had indicated on July 16 that he did not like the Union's proposal but "later changed his mind." He indicated he was not sure when Michael changed his mind and acknowledged that the Union's proposal in writing (typed) was shown to Michael later on August 3—and only briefly, with Morales handing Michael a typed docu- ment across the table and then taking it back. Michael testified that Mo- rales "reiterated" an oral proposal that discharged employees could "stay on the payroll until a discharge was decided" at some point ("I'm not certain that it was on July 12") Michael asserted that he never agreed to the Union's proposal, although he said he did not tell Morales on August 3, when shown it in typed form, that he 'would "sign this agreement right now if that will settle the strike." Michael said Morales rejected the offer: "[Morales] said, 'No way. We want more money' And that there were a lot of other issues." also Wantagh Auto Sales, 177 NLRB 150 (1969). 37 Re- spondent, to be sure, opened itself up to suspicion of bad- faith bargaining by distributing General Counsel's Exhib- it 16, but it did not rise above that. See Stanley Oil Co., 213 NLRB 219 (1974). There is nothing in the record to suggest Michael had any less authority, or insufficient authority, to represent the Company after the strike. Nor is there proof that Re- spondent bargained in bad faith after August 2. The Union agreed on August 3 to the Company's proposals on holidays, dental plan, guaranteed hours, and equip- ment, but the amount of pension contribution and wages remained outstanding that day and on August 6 when the parties met again. Nonagreement is not to be equated to bad faith, however. The Company withdrew "all offers" on August 6, but it did so lawfully because of the change of circumstances resulting from the Union's strike. See Times-Herald, 249 NLRB 13 (1980).38 A finding that agreement was reached on August 20 and again on August 24 requires acceptance of Morales' testimony over Michael's, and I am unable to do so. Mi- chael testified that he was "surprised" and "shocked" at how reasonable Morales had been in the "private ses- sion" the two had together on August 20, but Michael explained that the Union's demands were still "in excess of what the company's current position" was at that time. Michael told Morales that he would recommend that the Company accept the Union's offer, and he did so. Morales surely understood Michael's response for Morales asked Michael to call his father immediately to get approval. The August 22 letter of union counsel sup- ports Michael's version as it recites that a "tentative agreement" was reached and Michael "would recom- mend it to the owners of the company." As for reaching an agreement on August 24, Michael's version of the meetings held that day is also more credi- ble than Morales'. There is no dispute about the fact that Michael withdrew the offers of an additional holiday, the payoff of 2 days of sick leave, and the increased contri- bution to the pension plan in return for an increased wage offer, and that Morales indicated an interest in the revised offer. Morales then inquired about the return of the strikers, a subject Michael said he had not recently discussed with the company owners. Michael made it clear to Morales before the latter met privately with Business Representative Payton to "play with the fig- 87 Morales indicated great concern over the differences between G.C. Exh. 16 and G.C. Exh. 17. In explaining the differences, however, his major complaint was that G.C. Exh. 16 was incomplete and did not inform employees of everything that was set forth in the letter sent to the Union (i.e., details as to cost to employees under the dental plan, washing of trucks, increase of probationary period for new employees, employee cost for packing cans if more than two should be needed, !owe rate of pay if reassigned to lower seniority class, and shoe allowance). Morales did note that G.C. Exh. 17 did not refer to additional sick and funeral leave mentioned in G.C. Exh. 16. 38 Quoting the decision in Hickinbotham Bra L, 254 NLRB 96 (1981): "A strike is a two-edged sword. Depending upon how it affects the employer's operations, the strikers may gam concessions or they may lose concessions previously obtained." Here, as in Lloyd A. Fry Roof- ing Company, supra, the Union was operating on a "take-it-or-leave-it basis," and calling of a strike contributed to the failure to reach an agreement. 1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ures," that it wuld be necessary to make further consulta- tion about the return of the strikers. I do not credit Mo- rales' assertion that Michael undertook to give assurance that there would be "no problem" in the recall of all the strikers if the Union were to simply stay within the money terms of the offer made on behalf of the Compa- ny that day. Michael told Morales that the Company was not going to fire the replacements. Morales was bound to have known that Michael would have had to get clear- ance on the reinstatement of the strikers.39 I find that the record shows that the parties did not reach a complete agreement on August 20 or on August 24 as alleged in the complaint or at any other time. Ac- cordingly, the "Heinz remedy" sought by the General Counsel is not appropriate." The complaint alleges Respondent refused unlawfully, contrary to Section 8(a)(3), reinstatement of striking em- ployees following their unconditional offer to return to work about August 21 and that since that date Respond- ent has unlawfully demanded, contrary to Section 8(a)(5), that such employees waive their right to rein- statement. Insisting that the Union waive reinstatement of strikers as a condition of reaching agreement would have been unlawful, of course. See Lytron, Inc., 207 NLRB 554 (1973); Masonic Home, 215 NLRB 75 (1974), enfd. 548 F.2d 1276 (6th Cir. 1976); and American Cyanamid Co., 235 NLRB 1316 (1978), enfd. 592 F.2d 356 (7th Cir. 1979). But, contrary to what Morales testified and the ar- gument of the General Counsel and the Charging Party, Michael did not impose such a condition, either on August 20 or 24. Morales sought to make it appear that Michael was doing so, but the record persuades me that the only demand made was that of Morales—that the strikers be returned immediately as a condition of any agreement. Such demand by Morales was not an unquali- fied offer that the strikers would return to work. Mi- chael's saying no to such request of Morales, moreover, did not constitute an imposition of an unlawful condition. Here again Michael's testimony is more reliable than that of Morales. Michael testified that on August 20 he told Morales, following Morales' demand that the men must go back to work immediately and after Michael had spoken to the Company's labor counsel by tele- phone, that the Company would not fire replacements but would place the strikers on a preferential hiring list. On August 24 Michael repeated what the Company's po- sition was on the return of the strikers when Morales asked about the number of openings at the time—"re- placements would not be terminated and the strikers would not be returned immediately." 39 Morales agreed on cross-examination, after being shown on his affi- davit, that he had insisted that Michael make any necessary telephone calls about the return of strikers. 40 In H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941), the Supreme Court held that an employer's obligation to bargain in good faith includ- ed a duty to sign a written agreement embodying terms that had been agreed upon. But in H. K. Porter Co. v. NLRB, 397 U.S 99 (1970), the Court held that the Board could not compel an employer to sign a con- tract containing a checkoff provision that had not been agreed to—even though the record indicated bad-faith bargaining on the employer's part by repeatedly refusing to bargain on the issue. The Union, through Payton, did make an uncondition- al offer to return the strikers on September 8. I reject the contention that Morales made an unconditional offer on any earlier occasion. Neither the General Counsel nor the Charging Party press the point in their briefs that an unconditional offer was made by the Union prior to that date, each only maintaining that such an offer was made by the Union through Payton about September 8 "at the very latest."41 I do not fmd that Respondent's conduct either caused or prolonged the strike, called by Morales on August 2, as the complaint alleges. The Charging Party contends that Respondent's prestrike conduct violated Section 8(a)(5) and (1) and "therefore" caused the strike to be "an unfair labor practice strike from its inception." The General Counsel contends that the strike was an unfair labor strike for a number of reasons—i.e., Respondent's alleged "direct dealing," Michael's alleged lack of au- thority, the Company's alleged intent not to agree, and Respondent's late "miniscule" economic proposal. I have previously considered and rejected such contentions. The allegation was not sustained. Respondent's striking employees, even though eco- nomic strikers, did, and do, have a right to be recalled and reinstated when vacancies occur. Laidlaw Corp., supra. The record does not disclose, however, that Re- spondent had violated the Act by failing to recall or re- instate such strikers after the Union made an unqualififed offer of their return on September 8." The Charging Party maintains that Michael Torrigino admitted that there was "at least" one opening on September 8, but I do not so interpret his testimony. Michael stated that the Company did not actually know how many of its em- ployees went out on strike (Perez and Castellanos were on vacation at the time the strike began) but, pressed on cross-examination to testify from memory ("off the top of my head") as to when the permanent replacements were hired, indicated that seven or eight were replaced on August 13 and that all of the strikers had been re- placed by sometime in early September. Said Michael: It was sometime in September—in, in the first— after the first week of September, yeah. Michael explained that one of the replacements was later discharged and replaced in November by one of the strikers. Such testimony does not provide an adequate basis for finding Respondent unlawfully failed and re- fused to recall economic strikers at a time when they had signified the requisite willingness to return to work. Nor do the "job vacancies of up to a week's duration" occur- ring in November and December 1982, which were filled 41 Economic strikers are, of course, entitled to reinstatement when they unconditionally offer to return to their jobs if they have not been replaced, and later, although replaced, if available when there is a job opening. See Ladlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U S. 920 (1970) 42 The failure to reinstate economic strikers falls sufficiently within the ambit of par. 17 and 18, in my view, although the complaint alleges Re- spondent "caused and prolonged" the strike, which averment I find not sustained. The complaint does not allege, and the record does not estab- lish, as the General Counsel asserts, that the strikers were unlawfully dis- charged. COASTSIDE SCAVENGER CO. 1631 by temporary workers Dorris Matter, James Frances, and Jay Lourenco, facts stipulated to and relied on by the General Counsel, establish an unlawful failure or re- fusal to reinstate economic strikers. Contrary to the Gen- eral Counsel's argument, I find the meager information in the record concerning the work performed by these three individuals named is not sufficient to permit a de- termination that any of them were placed in job vacan- cies that had to have been offered to a striker. Certified Corp., 241 NLRB 369 (1979), holds, contrary to what the General Counsel maintains, that the temporary nature of a job is a critical factor in determining whether it is "substantially equivalent" to what position a striker had held.4 3 CONCLUSIONS OF LAW 1. Respondent Coastside Scavenger Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Sanitary Truck Drivers and Helpers Local 350, affiliated with the International Brotherhood 4 3 And see Randall v. NLRB, 687 F.2d 1240 (8th dr. 1982), which cites both Certified Corp, supra, and Bancroft Cap Co., 245 NLRB 547 (1979) (discussed by the General Counsel). After citing Certified Corp., the court stated: "The existence of a temporary job is not the equivalent of a vacancy to which a striker should have been reinstated." of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All drivers, helpers, and mechanics employed by Respondent at its Pacifica, California facility, excluding clerical employees, supervisors and guards as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The strike which commenced about August 2, 1982, by the Union against Respondent has at all times been, and remains, an economic strike. 5. Respondent has not engaged in any unfair labor practice alleged in the complaint. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed44 ORDER It is ordered that the complaint issued against Coast- side Scavenger Company is dismissed. 44 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. Copy with citationCopy as parenthetical citation
