Lou's Produce

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1194 (N.L.R.B. 1992)

1194
308 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The judge’s conclusion that contributions to the pension fund
were not delinquent until March 11, 1990, is erroneous. Although it
appears that a notice of delinquency was not sent until that date, the
collective-bargaining agreement establishes that pension fund con-
tributions for hours worked in each month were due on the 10th day
of the following month. Thus, as noted above, contributions for the
month of January 1990 were due on February 10, 1990.
3 Sec. 14(2) of the collective-bargaining agreement provides: ‘‘If
neither party to this Agreement prior to sixty (60) days before De-
cember 31, 1989, notifies the other party, in writing of its desire to
change, modify, or terminate this Agreement, then the Agreement is
automatically extended and renewed for the following year.’’ In light
of the parties’ having engaged in preexpiration bargaining, the Gen-
eral Counsel does not contend that the agreement was renewed pur-
suant to sec. l4(2), even though the required notices were never sent.
4 The judge erroneously found that Plumos testified that he first
advanced the renewal claim at a meeting on March 6, 1990. In fact,
Plumos testified that he first made the statement about automatic re-
newal on February 14, 1990. The judge also found that the Respond-
ent’s unilateral discontinuance of pension contributions was privi-
leged by the Union’s February 14, 1990 contract renewal claim. For
the reasons set forth below, we disagree. Moreover, as noted above,
the Respondent discontinued those contributions as of February 10,
l990, 4 days before Plumos’ statement was made.
Lou’s Produce, Inc. and General Truck Drivers,
Warehousemen, Helpers and Automotive Em-
ployees, Local 315, affiliated with International
Brotherhood of Teamsters, AFL–CIO.1 Case
32–CA–11128
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 8, 1991, Administrative Law Judge
James M. Kennedy issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions, a sup-
porting brief, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The General Counsel has excepted to the judge’s
failure to find that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing employment
conditions after January 1, 1990, and by withdrawing
recognition from the Union on March 6, 1990. For the
reasons that follow, we find merit to these exceptions.
The General Counsel established, through the undis-
puted testimony of Western Conference of Teamsters
Pension Trust Administrator Judie Turner, that the Re-
spondent made no contributions to the fund for hours
worked after December 30, 1989, the date the Re-
spondent’s collective-bargaining agreement with the
Union expired. Under the terms of the expired agree-
ment, contributions for hours worked in January 1990
were due on February 10, 1990. The Respondent ad-
mits that these contributions were not made. There is
no evidence that the parties bargained to impasse over
elimination of pension benefits; to the contrary, the
Respondent admits that, during contract negotiations in
the fall of 1989, it tentatively agreed to continue mak-
ing contributions to the Teamsters Pension Trust, at a
higher rate, as part of a successor agreement. By uni-
laterally discontinuing pension contributions after the
expiration of the parties’ collective-bargaining agree-
ment, without first bargaining to impasse with the
Union, the Respondent failed and refused to bargain
collectively and in good faith with its employees’ rep-
resentative in violation of Section 8(a)(5) and (1) of
the Act.2
Likewise, the General Counsel established, and the
Respondent admits, that it made no contributions to the
Teamsters Benefit Trust for hours worked after Janu-
ary 1990. Contributions for hours worked in a given
month were due on the first day of the following
month and considered delinquent if not received or
postmarked by the 20th day of the month in which the
contributions were due. There is no evidence that the
parties bargained to impasse over the issue of health
insurance benefits.
The judge concluded that the Respondent was never-
theless privileged to discontinue contributions to the
benefit trust because the Union’s business agent, John
Plumos, advised the Respondent on February 14, 1990,
that the parties’ 1986–1989 collective-bargaining
agreement had been automatically renewed as a result
of the failure of either party to serve notice of its in-
tent to modify or terminate the agreement within the
period of time specified for such notices in section 14
of the agreement.3 The judge viewed this statement as
a refusal to bargain on the Union’s part, which then
privileged the Respondent to unilaterally modify terms
and conditions of employment without first bargaining
such changes to impasse.4 We disagree. When viewed
in context with other developments in this case, it is
evident that the Union never refused to bargain with
the Respondent.
The issue of health benefits first arose in the fall of
1989. The Respondent indicated its willingness to con-
tinue participating in the Teamsters Benefit Trust, pro-
vided contributions were not required for casuals re-
gardless of the number of hours they worked in a
1195LOU’S PRODUCE
5 Under the 1986–1989 collective-bargaining agreement, contribu-
tions to the benefit trust were required for casuals or regular employ-
ees for each month in which the individual worked 80 or more
hours. Pursuant to a side letter to that agreement, however, casuals
were not entitled to any benefits, including health and welfare.
6 In adopting the judge’s conclusion that this poll was unlawful,
we rely only on his findings that, as admitted by the Respondent,
the poll did not comply with the secret ballot requirement estab-
lished in Struksnes Construction Co., 165 NLRB 1062 (1967), and
that the Union was not given prior notice of the poll. See Texas Pe-
trochemicals Corp., 296 NLRB 1057 (1989), modified on other
grounds 923 F.2d 398 (5th Cir. 1991). We find no merit to the Re-
spondent’s assertion that these requirements are inapplicable here be-
cause the poll was not ‘‘used for withdrawing recognition from a
union.’’ The poll asked employees whether they wanted ‘‘to remain
with the Teamsters Union at Lou’s Produce’’ and was headed with
the words ‘‘Teamsters Union Status.’’ Under these circumstances,
we agree with the judge that the purpose of the poll was to deter-
mine whether employees continued to support the Union. As such,
in the absence of the safeguard noted above, the poll constituted an
independent unfair labor practice even if the Respondent had not re-
lied on it to subsequently withdraw recognition from the Union.
7 In this regard, unbeknownst to the Union, the Respondent had
ceased contribution to the pension and benefit funds prior to the
Union’s first assertion that the agreement had renewed itself.
8 Although Nona Alessio, the Respondent’s co-owner and book-
keeper, testified that she mentioned to Coppa, in the fall of 1989,
that her son had health insurance with Kaiser that was less expensive
than the coverage provided by the Teamsters Benefit Trust, she
never testified that switching to Kaiser was actually proposed to the
Union. To the contrary, it is undisputed that, at least as of December
31, 1989, the Respondent would have continued in the Teamsters
Benefit Trust if the casuals’ issue had been resolved.
9 For the same reason, we find no merit to the Respondent’s argu-
ment that the Union’s reneging on an alleged agreement to exclude
casuals from health benefits was an act of bad-faith bargaining
which excuses its subsequent unilateral actions. At most, the Union’s
action could have privileged the implementation of the Respondent’s
last offer in this regard. We also note that the Respondent introduced
no evidence concerning Coppa’s authority to bind the Union in ne-
gotiation or concerning its efforts to protest the Union’s alleged
Continued
given month.5 According to the Respondent, the then
union business agent, Frank Coppa, agreed to this pro-
posal but was unable to provide the Respondent with
satisfactory language prior to December 31. Thereafter,
Coppa was replaced by Plumos, who met with the Re-
spondent on January 10, l990. At that meeting, Plumos
refused to agree to any waiver of the normal benefit
trust rule requiring contributions for employees, and
the Respondent’s officials told Plumos, in response,
that they could not afford the Union and wanted to
‘‘get out of’’ dealing with the Union.
On February 5, 1990, the Respondent polled its em-
ployees to determine their support for the Union.6 The
judge found that the Respondent called Plumos that
same day to tell him that a majority of employees had
indicated they did not want the Union to represent
them.
The parties next met on February 14, l990. The Re-
spondent repeated its desire to get rid of the Union as
its employees’ representative, and Plumos for the first
time stated that the collective-bargaining agreement
had been renewed as a result of the parties’ failure to
serve the notices specified in section 14 of the agree-
ment. According to Plumos’ uncontradicted testimony,
he also offered to work out the Respondent’s problems
concerning the cost of health and welfare coverage and
payment of delinquent health and welfare contribu-
tions.
On March 1, 1990, the Respondent unilaterally es-
tablished a new health insurance program with Kaiser,
a private insurer, for its employees. On March 6, 1990,
the Respondent again met with Plumos, who repeated
both his assertion that the agreement had been auto-
matically renewed and his offer to work out a payment
program for the Respondent’s delinquent contributions
and to provide for coverage under a ‘‘lesser’’ Team-
sters health and welfare plan. The Respondent rejected
these offers and advised Plumos that it had obtained its
own health insurance from Kaiser and that the Union
had been voted out.
Under these circumstances, we find no merit to the
Respondent’s assertion that the Union engaged in bad-
faith bargaining by stating, on February 14 and March
6, that the parties’ contract had been automatically re-
newed. Initially, we note that these statements were, in
each case, accompanied by the Union’s offer to nego-
tiate over the issue in dispute between the parties, i.e.,
the cost of health insurance. Moreover, the assertion
concerning automatic renewal was made in the context
of the Respondent’s unlawful poll of employees con-
cerning their support for the Union and its statements
to Plumos that it wished to get rid of the Union.7
Under these circumstances, we cannot say that the
Union refused to bargain with the Respondent.
Even if the Union’s assertion that the agreement had
been automatically renewed is viewed as a refusal by
the Union to engage in further bargaining, we agree
with the General Counsel that this would not privilege
the Respondent’s unilateral implementation of the Kai-
ser health insurance plan. Contrary to the Respondent,
its proposals to the Union never encompassed dis-
continuing health and welfare coverage under the
Teamsters Benefit Trust, let alone the specific Kaiser
health insurance plan which the Respondent imple-
mented on March 1, 1990.8 Cf. R. A. Hatch Co., 263
NLRB 121 (1982) (employer lawfully implemented its
last proposal where the union had stated ‘‘it’s the short
form or nothing’’ in negotiations). See also
Lawrenceville Ready-Mix Co., 305 NLRB 1010 (1991).
Because changing from the Teamsters Benefit Trust to
a new health insurance policy with Kaiser was not in-
cluded in its proposals to the Union as of February 14,
1990, the date the complained of statements were first
made, the Respondent violated Section 8(a)(5) and (1)
by unilaterally implementing the Kaiser policy on
March 1, 1990.9
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
change of position. Accordingly, we need not decide whether the
Union’s reneging on a proposal would have privileged the Respond-
ent’s unilateral implementation of its last offer with regard to health
insurance.
10 Because the provision of benefit fund agreements are variable
and complex, we leave to the compliance stage the question of
whether the Respondent must pay any additional amounts into the
benefit funds in order to satisfy our ‘‘make whole’’ remedy.
Merryweather Optical Co., 240 NLRB 1213, 1216 (1979).
We also find that the General Counsel has estab-
lished that the Respondent unlawfully withdrew rec-
ognition from the Union on March 6, 1990, as alleged
in the complaint. The Board has recognized that a
withdrawal of recognition need not be explicitly stated
to run afoul of the Act; rather, the Board will examine
an employer’s statements and actions in context to de-
termine whether a violation has occurred. Paramount
Poultry, 294 NLRB 867 (1989); Corson & Gruman
Co., 284 NLRB 1316 (1987). As noted above, the Re-
spondent here: (1) ceased making contributions to the
pension and benefit funds without bargaining with the
Union; (2) conducted an unlawful poll of employees,
without prior notice to the Union, to determine wheth-
er the Union still enjoyed majority support; (3) subse-
quent to, and in reliance on, the poll results, declined
the Union’s repeated offers to negotiate the outstand-
ing issue of health insurance, instead stating at every
opportunity that it wished to get rid of the Union; and
(4) unilaterally implemented its own health insurance
plan, also in reliance on the poll results. We find that
by these actions the Respondent effectively and unlaw-
fully withdrew recognition from the Union after March
6, 1990.
CONCLUSIONS OF LAW
1. By failing and refusing to remit required contribu-
tions to the Western Conference of Teamsters Pension
Trust and Teamsters Benefit Trust, as provided in the
parties’ 1986–1989 collective-bargaining agreement,
after January 1990, without previously bargaining to
impasse over such changes, the Respondent violated
Section 8(a)(5) and (1) of the Act.
2. By conducting a poll of its employees on Feb-
ruary 5, 1990, to determine their union sympathies, the
Respondent violated Section 8(a)(1) of the Act.
3. By unilaterally implementing its own health insur-
ance plan on March 1, 1990, without proposing or bar-
gaining with the Union over the change, the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
4. By withdrawing recognition from the Union after
March 6, 1990, without any good-faith basis for doubt-
ing the Union’s continued majority support, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to make whole its
unit employees by making all pension and health and
welfare contributions as provided by the expired col-
lective-bargaining agreement with the Union, which
have not been paid,10 and by reimbursing employees
for any expenses ensuing from the Respondent’s fail-
ure to make such contributions as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). All pay-
ments to employees shall be made with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
We shall also order the Respondent to recognize
and, on request, to bargain in good faith with the
Union concerning the wages, hours, and other terms
and conditions of employment of unit employees and
to reduce to writing any agreement reached.
We shall also order the Respondent to, on request
by the Union, rescind the unlawfully implemented
health insurance plan.
ORDER
The National Labor Relations Board orders that the
Respondent, Lou’s Produce, Inc., Richmond, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
General Truck Drivers, Warehousemen, Helpers and
Automotive Employees, Local 315, affiliated with
International Brotherhood of Teamsters, AFL–CIO as
the exclusive bargaining representative of the employ-
ees in the unit described below by: (i) failing and re-
fusing to make contributions to pension and health and
welfare funds pursuant to the parties’ expired 1986–
1989 collective-bargaining agreement without first bar-
gaining to impasse with the Union; (ii) unilaterally im-
plementing its own health insurance plan without first
proposing the plan to the Union and bargaining to im-
passe over its proposal; and (iii) withdrawing recogni-
tion from the Union, without a good-faith basis for be-
lieving that the Union no longer represents a majority
of unit employees. The unit is:
All full-time and regular part-time driver/ware-
house A, lead/warehouse, utility/warehouse driver
employees employed by the Respondent at its
Richmond, California facility, excluding all other
employees, office and clerical employees, guards,
and supervisors as defined in the Act.
(b) Coercively polling its employees concerning
their support for the Union.
1197LOU’S PRODUCE
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the unit employees for any losses
they may have suffered as a result of the Respondent’s
failure to make pension and health and welfare con-
tributions as required by the parties’ expired collective-
bargaining agreement in the manner set forth in the
remedy section of this decision.
(b) On request, discontinue its unlawfully imple-
mented health insurance plan for unit employees.
(c) Recognize and, on request, bargain collectively
with the Union concerning wages, hours, and other
terms and conditions of employment of unit employees
and reduce to writing any agreement reached.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount due under the
terms of this Order.
(e) Post at its facility in Richmond, California, cop-
ies of the attached notice marked ‘‘Appendix.’’11 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted.
(f) Notify the Regional Director within 20 days of
this Order what steps the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to bargain in good
faith with General Truck Drivers, Warehousemen,
Helpers and Automotive Employees, Local 315, affili-
ated with International Brotherhood of Teamsters,
AFL–CIO as the exclusive bargaining representative of
the employees in the unit described below by: (1) fail-
ing and refusing to make contributions to the pension
and welfare funds pursuant to our expired 1986–1989
collective-bargaining agreement without first bargain-
ing to impasse with the Union; (2) unilaterally imple-
menting our own health insurance plan without first
proposing the plan to the Union and bargaining to im-
passe over our proposal; and (3) withdrawing recogni-
tion from the Union, without a good-faith basis for be-
lieving that the Union no longer represents a majority
of unit employees. The unit is:
All full-time and regular part-time driver/ware-
house A, lead/warehouse, utility/warehouse driver
employees employed at our Richmond, California
facility, excluding all other employees, guards,
and supervisors as defined in the Act.
WE WILL NOT coercively poll our employees to de-
termine their union sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole our unit employees for any
losses they may have suffered as a result of our failure
to make pension and health and welfare contributions
as required by our expired collective-bargaining agree-
ment, with interest.
WE WILL, on request by the Union, discontinue our
unlawfully implemented health insurance plan for unit
employees.
WE WILL, on request, recognize and bargain collec-
tively with the Union concerning wages, hours, and
other terms and conditions of employment of unit em-
ployees and reduce to writing any agreement reached.
LOU’S PRODUCE, INC.
Gary M. Connaughton, Esq., for the General Counsel.
Christopher W. Katzenbach, of San Francisco, California, for
the Respondent.
Andrew Baker, Esq. (Beeson, Tayer, Silbert, Bodine & Liv-
ingston), of San Francisco, California, for the Charging
Party.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 14(2) of the 1986–1989 contract. It reads:
If neither party to this Agreement prior to sixty (60) days be-
fore December 31, 1989, notifies the other party, in writing of
its desire to change modify or terminate this Agreement, then
the Agreement is automatically extended and renewed for the
following year.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Oakland, California, on October 4,
1990, and reopened September 5, 1991, on a complaint
issued by the Regional Director for Region 32 of the Na-
tional Labor Relations Board on June 15, 1990. The com-
plaint is based on a charge filed by General Truck Drivers,
Warehousemen, Helpers and Automotive Employees, Local
315, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (the Union) on May 11, 1990. It alleges that Lou’s
Produce, Inc. (Respondent) has committed certain violations
of Section 8(a)(5) and (1) of the National Labor Relations
Act.
Issues
Specifically, the complaint alleges that Respondent vio-
lated Section 8(a)(5) and (1) by failing to make contractually
required fringe benefit payments to the health and retirement
plans, unlawfully polled employees regarding their senti-
ments and support for the Union, and withdrew recognition
from the Union at a time when it was not privileged to do
so. Respondent defends on the ground that it was privileged
to stop the payments and substitute another health plan be-
cause the Union engaged in an unlawful peremptory declara-
tion that the expired contract had renewed itself under the
automatic renewal (evergreen) clause, thereby refusing to
bargain over health plan changes before any change could be
adequately presented at bargaining. It further asserts that the
Union’s conduct violated Section 8(b)(3) of the Act and priv-
ileged it to cease paying pension plan contributions. Insofar
as the polling is concerned, Respondent asserts it was harm-
less saying the Union even accepted an offer to run a second
poll with the Union’s participation, and finally that it did not
withdraw recognition until the Union withdrew from the
agreement to participate in the second poll.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs and supplemental
briefs. Both the General Counsel and Respondent filed briefs
and supplemental briefs which have been carefully consid-
ered. Based on the entire record of the case, as well as my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation, engaged in the
wholesale produce business at its facility in Richmond, Cali-
fornia, where it annually purchases and receives goods and
services valued in excess of $50,000 from enterprises located
within California, each of which enterprises had received
those goods or services from points outside California. Re-
spondent, accordingly, admits it meets the Board’s indirect
inflow standard for the assertion of jurisdiction. I therefore
find that it is an employer engaged in commerce, and in an
industry affecting commerce, within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has had a collective-bargaining relationship
with the Union since at least the mid-1960’s. During that
time it has been owned by members of the Alessio family,
perhaps in conjunction with others. In 1986 John Alessio
sold the business to one of his sons, Mike Alessio, who co-
owned the business with a ‘‘partner’’ whose name is not
clear in the record. According to an illegible signature her
name appears to be Karen Fll. At the time of the trans-
actions being scrutinized, she was no longer involved with
the business. However, in November 1986, she had signed
an addendum to the 1986–1989 collective-bargaining con-
tract.
That collective-bargaining contract was scheduled to ex-
pire on December 31, 1989. By that time Mike Alessio and
his wife Nona were operating the business. It employs about
six people in the bargaining unit, only two of whom are not
family members. Among other things, the expiring collec-
tive-bargaining contract provided that Respondent pay for a
Teamsters health plan known as Policy 1400 of the Califor-
nia Teamsters Welfare Trust. It is one of several plans of-
fered by that Trust. The contract also provided for payments
to the Western Conference of Teamsters Pension Trust Fund.
Although the parties did not give each other the contrac-
tual and statutory notices of termination or give notice to the
Federal and state mediation agencies as required by Section
8(d) of the Act, they nonetheless began to bargain over a
successor agreement sometime in September 1989. Business
Agent Frank Coppa represented the Union while Mike and
Nona Alessio represented Respondent. Although the contract
contained an automatic renewal clause providing that if the
parties failed to ‘‘open’’ the contract for renegotiation, it
would renew itself for 1 year,1 the General Counsel does not
contend that the parties’ failure to do so caused the evergreen
clause to go into effect. The Union’s position on that issue
is that it did. Beginning in mid-to late February 1990 it
began contending that the contract had renewed itself on Jan-
uary 1, 1990. That position was restated in its charge filed
by counsel, and in some letters both before and after the
complaint issued on June 15, 1990. At the time it began
making that contention, Coppa had been replaced as the
Union’s bargainer by Business Agent John Plumos. Plumos
was the individual who initiated that claim when it became
apparent that the health plan renewal had become insur-
mountable.
B. The Bargaining
Between September and December 1989, the Alessios and
Coppa met on two or three occasions to negotiate a new con-
1199LOU’S PRODUCE
2 In pertinent part, the addendum contained the following lan-
guage:
(B) Casuals will not be guaranteed a daily or weekly mini-
mum number of hours.
(D) Casuals will not accrue seniority or be entitled to any ben-
efits including but not limited to holidays, health and welfare,
vacation, sick leave, funeral leave, jury duty, leave of absence,
etc. [Emphasis added.]
tract. The negotiations went smoothly in all respects except
one, the issue of health insurance. There were two specific
areas of concern. First, the per employee price of continuing
the Policy 1400 plan seemed excessive to the Alessios. Nona
Alessio describes their conversation on that subject:
Q. [By Mike Katzenbach] Did you ever discuss with
Mike—during those conversations, do you recall any
discussion with Mike Coppa concerning the costs of the
Union health plan?
A. Yeah.
Q. What did you tell—what happened there?
A. I told him that my son has his own health plan
which was Kaiser, and at the time it was $78 a month
and Teamsters wanted $365 for the same coverage, and
I said we just can’t afford it. I mean, it’s—you know,
trying to save pennies everywhere I could.
Q. Okay. What did Mike Coppa say in response to
that?
A. He was pretty nice. He understood. I mean, he
said, ‘‘Yeah, I know. It’s tough all over.’’
In an effort to reduce the overall costs of health insurance,
Coppa’s contract proposal of late November or early Decem-
ber included a switch from plan 1400 to another, known as
plan III. This plan cost $290 per month per employee.
The second concern was coverage for casual employees.
The fresh produce business is seasonal and Respondent has
some difficulty in controlling the hours of extra or casual
employees due to the timing of various harvests and con-
nected shipments.
It is apparent from the testimony of both the Alessios and
Plumos that the health and welfare trust has a rule, known
as either the ‘‘79 hour’’ or ‘‘80 hour’’ rule which requires
an employer who works an employee for more than 79 hours
per month to pay full monthly coverage for him or her. The
Alessios believe the rule works a severe hardship against it
in situations where a casual employee is asked to work 1 or
2 hours over the limit. In such situations the trust would re-
quire, at least under its plans, as much as $365–$400 on be-
half of such an employee.
The issue was not new. It had been resolved in 1986 in
favor of Respondent which had obtained a waiver from the
Union on that issue. Curiously, neither Mike Alessio nor
Coppa could initially recall the 1986 waiver when they began
to bargain in 1989. They did not have a copy. Indeed, the
waiver is found in the addendum signed by Karen Fll. in
1986.2 During bargaining and while researching the problem,
Nona Alessio came on it and showed it to them. Repeating
the waiver seemed a promising solution to the problem. In-
deed, Mike Alessio told Coppa that if he could get relief on
the casuals health coverage, he could afford the other eco-
nomic terms of the newly proposed contract.
Even so, both parties had difficulties with the waiver.
Nona Alessio believed it was not clear enough. She knew it
was inconsistent with the health trust’s 79-hour rule and she
was afraid the trust might not accept it as written. Second,
she feared the trust might not accept Respondent’s definition
of ‘‘casual employee’’ as Respondent practiced it. Her latter
fear may have been overly cautious and it may be that the
remainder of the contract could have been used to properly
define what the parties intended. Nonetheless, she told Coppa
she wanted a waiver with greater clarity. At one point Coppa
assured her that the previous language was adequate. In a
telephone conversation he even told her that he had had his
office secretary read it and that she had agreed with him that
its purpose was clear. Nona Alessio, however, was not will-
ing to accept that curbstone opinion. Finally, Coppa agreed
both to try to draft clearer language and to get a letter di-
rectly from the trust to that effect. It is unknown what efforts
he made in that regard, but he had not presented either alter-
nate language or such a letter to the Alessios prior to the ex-
piration of the contract on December 31, or before he was
replaced by Plumos in January.
Plumos did not approach the problem as sympathetically.
He apparently had marching orders to negotiate a health plan
which was entirely consistent with the health and welfare
trust’s rules. Not only would he not follow through on
Coppa’s promise to try to tighten the waiver language, he
would not accept the concept of a waiver at all. He would
not even consider extending the waiver of the past contract
or even ask the trust for the letter Coppa had offered to seek.
Plumos testified:
Q. [By Mike Katzenbach] Have you ever agreed to
give him that, such a letter?
A. No, I haven’t.
Q. Did he ask for that relief?
A. Yes, I told him that the law stated—according to
the trust plan, the 80-rule is for everybody. It doesn’t
exclude casuals or permanent employees. 80 hours and
you have to pay.
Q. How many times did you tell him? How many
times did he ask you for relief and how many times did
you tell he you couldn’t give it to him?
A. Three times.
Q. All right. Did you ever tell him that you’d look
into it? Did you check it out further?
A. No, I—at the first meeting, I told him 80 hours
and that’s it.
Q. And was that your position from the start—first
meeting right through the last meeting?
A. That’s correct.
Q. Is that your position today?
A. That’s correct.
. . . .
Q. [By Mr. Katzenbach] but the condition of being
in the Union’s health plan was that they would have to
agree that if somebody works 79 or more hours, they
would have to pay full benefits; is that correct?
A. That’s correct.
Q. All right. And they couldn’t have the Union
health plan if they were not willing to agree to that
term?
A. We have cheaper plans.
Q. You discussed your plan, right?
A. Yes. My plan only.
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Some of the discussion between Aloise, Aires, and John Alessio
centered on an old debt which Respondent owed the trust and was
making an effort to pay. That issue is not a part of this charge or
complaint, although the topic was discussed at several bargaining
sessions.
4 An automatic renewal or ‘‘evergreen’’ clause typically provides
that if the parties to a collective-bargaining contract fail to give writ-
ten notice of the contract’s termination to each other by a deadline
(usually 60 days before the contract’s expiration date), the contract
will renew itself without change for another year. The evergreen
clause here follows that pattern. See fn. 1, supra. The Board, how-
ever, has held that if the parties actually begin bargaining before the
contract expires, they will be deemed to have waived the require-
ments that the notice of termination be in writing or that it be time-
ly. The General Counsel concedes the rule applies here. I agree. Ship
Shape Maintenance Co., 187 NLRB 289, 291 (1970); Hassett Main-
tenance Corp., 260 NLRB 1211 fn. 3 (1982); and Industrial Workers
AIW Local 770 (Hutco Equipment), 285 NLRB 651 (1987).
5 The March 6 meeting seems to have been relatively short. The
majority of it was spent discussing the debt which Respondent owed
the health trust and in that sense was a continuation of the February
14 sidebar involving Aloise on that matter.
Q. Your plan, the plan that you were talking about,
was—all the plans require payments after 72 hours—
after 79 hours, right?
A. That’s correct.
Q. Every plan?
A. Every plan.
Q. All right. So that if they wanted to have the plan
that they wanted to have, that you were discussing, it
had to be with the condition of having full benefits for
employees if they worked 79 or more hours, right?
A. That’s all the plans that we have.
Q. They all require that?
A. Yes.
Q. There was no plan that you had that didn’t re-
quire that?
A. That’s correct.
Q. So there was no plan that you could offer them
that gave them a deal that said if they worked someone
more than 79 hours, they could have this plan?
A. That’s correct.
It appears that beginning in January Plumos had four or
five meetings with Respondent, some of which were not for-
mal bargaining sessions. For example, Nona Alessio recalls
that on one occasion in early January Plumos came by the
office to introduce himself and to say that he was Coppa’s
successor. Pursuant to an appointment made by telephone on
January 8, a meeting was conducted at Respondent’s place
of business on January 10. During that session, the Alessios
tried to persuade Plumos that Coppa had essentially agreed
to the waiver relating to the casuals. Although they could not
convince Plumos, they did ask him to discuss the issue with
Vince Aloise, who serves both as a member of the Union’s
executive board and as a trustee of the health and welfare
trust. It was Aloise who had been behind the 1986 waiver.
Another meeting occurred on February 14. At that time
Plumos had prevailed upon Aloise to attend. In addition, the
Alessios obtained the presence of John Alessio, Mike’s father
and previous owner (now semiretired, but who continues to
be employed), as well as its accountant, Fran Aires. It was
during this meeting that the union representatives explained
that the waiver was no longer acceptable.3 It was also at this
meeting that Respondent finally became convinced that the
Union would not honor Coppa’s apparent promise and would
not grant the waiver relief at all.
Nona Alessio describes what happened next during an in-
formal ‘‘drop-in’’ conversation with Plumos:
Q. [By Katzenbach] At the first meeting you had
with Mr. Plumos, did he say anything about the con-
tract rolling over?
A. No, it was about the second or third meeting that
he mentioned that, the contract rolling over. He had
come by—it was almost like a—just a social thing, just
a check-in with you type thing. There was no meeting,
he just dropped by. And he said, you know, ‘‘We still
haven’t gotten this thing resolved.’’ And I said, ‘‘I
don’t know how we can. We can’t afford to be in the
Teamsters.’’ And he said, ‘‘Well,’’ and he kind of
smiled at me and said, ‘‘Guess what? It rolled over.’’
And I said, ‘‘What are you talking about?’’ And he
said, ‘‘Read your contract.’’ And he kind of smiled at
me. And I did, and he was right. It did say that, and
I said, ‘‘But we told —we talked about this’’—not with
him, but with Frank Coppa months before now, you
know, I mean, it was all verbal, though, and I didn’t,
you know, give it to them in writing.
According to Nona Alessio, however, during the drop-in
conversation, they then had a short discussion of whether the
oral agreement they had with Coppa had forestalled the oper-
ation of the automatic renewal clause.4 Plumos insisted that
it had; she was puzzled, not quite believing him, but con-
cerned with the language of the clause which seemed to say
he was right.
The record does not show exactly when this conversation
occurred, but it seems likely to have been within a week
after the February 14 negotiation session. Neither does the
record show exactly when she and Mike Alessio decided to
act. Nonetheless, Mike Alessio testified that decisions were
made to do three things: obtain substitute health insurance
for their employees which was less costly; cease paying into
the pension trust and poll the employees regarding whether
they still wished to be represented by the Union. These deci-
sions were not simultaneous but the first two were triggered,
at least in part, by Plumos statements that the contract had
rolled over and his informing them that the health and wel-
fare trust would not permit the same waiver which it had
provided for the 1986–1989 contract.
On March 6, the parties met again. Plumos testified that
it was at that meeting he first told them the contract had
rolled over. He testified:
A. [Mike Alessio] didn’t want to have nothing to do
with the Teamsters any more at that meeting.
Q. What did he say?
A. He didn’t want to sign the contract and at that
meeting I told him that it automatically extended.
Q. And what did he say if anything?
A. He said, ‘‘You guys are getting too rich for my
blood. I want out.’’
It is undisputed that at this meeting,5 for the first time,
Mike Alessio told Plumos that he had purchased substitute
1201LOU’S PRODUCE
6 I think it is fair to assume that between February 14 and March
1, Respondent took the steps necessary to purchase the Kaiser plan.
There is no evidence in the record regarding the length of lead time
which Kaiser requires to arrange for such a group purchase and even
the 2 weeks involved seems pretty short. Perhaps Respondent had
begun inquiring even before the February 14 meeting because of the
poll. But that allows for only 1 additional week. Most likely the ab-
solute rejection of the waiver and the knowledge that the Union was
claiming ‘‘rollover’’ triggered a hasty Kaiser purchase. That is con-
sistent with Nona Alessio’s testimony.
7 R. Exhs. 1, 2, 3, and 4 were originally rejected and placed in
the rejected exhibit folio. At the reopened hearing they were all re-
ceived in evidence, although they are still contained in that folio.
health coverage from Kaiser Permanente. At that time he
also referred to the fact that he had conducted a poll of the
employees to determine if they wished to remain repre sented
by the Union. There is a dispute regarding whether this was
the first time he had mentioned the poll. Plumos testimony
suggests that it was and that Alessio had said the polling was
done by a show of hands; Mike Alessio says the poll was
first mentioned in a telephone conversation prior to the
March 6 meeting. He remembers a discussion with Plumos
in which Plumos asked if the poll had been conducted by se-
cret ballot and discussing whether such a poll was valid or
should be redone with Plumos participating. Alessio says he
agreed in that telephone conversation with Plumos request to
conduct the poll a second time.
It appears from the evidence that the poll had been con-
ducted on February 5 and that it was by written ballot. It
was, however, not secret as the ballots contained a signature
line. Even so, it was not discussed at the February 14 meet-
ing. Until then, of course, Respondent still held out the hope
that Union would continue to grant the waiver. It seems like-
ly, therefore, that Respondent was hedging its bet. It had not
yet, except for arming itself with the information about the
poll, taken any definitive action with respect to changing its
relationship with the Union or making any unilateral
changes. Indeed, as Alessio said, Respondent did not ‘‘join’’
the Kaiser health plan until March 1.6 Clearly Respondent
purchased the Kaiser plan not because it was trying to dodge
the Union, but because the Union wouldn’t budge on the bar-
gaining issue and had taken the definitive and reactive stance
of declaring the old contract to have renewed itself.
In fact, the Union’s posture on this point continues, even
though the General Counsel discounts it. On April 9, 1990,
the Union’s lawyer wrote Respondent a letter referring to Re-
spondent’s apparent disavowal of its continuing obligation to
comply with the terms of the ‘‘current collective bargaining
contract.’’ (R. Exh. 2.)7 Moreover, the unfair labor practice
charge which the Union filed, also through counsel, ex-
pressly asserts that Respondent has violated the ‘‘current’’
collective-bargaining agreement and has ‘‘repudiated’’ it
‘‘mid-term.’’ (G.C. Exh. 1(a).) Even after the complaint was
issued, the Union continued to maintain that the 1986–1989
contract had rolled over. An exchange of letters so shows.
On July 11, 1990, Respondent’s attorney, Katzenbach, wrote
Plumos asserting, inter alia, that the bargaining had come to
an impasse. Plumos responded with a letter to Mike Alessio
dated July 27, offering to set up meetings to resolve the con-
tract. (G.C. Exh. 9.) On August 2, Katzenbach replied, offer-
ing to bargain for the Company, saying, ‘‘I assume from
your letter that the Union is no longer contending that the
old contract rolled over for an additional year. Nevertheless,
I would appreciate that you would confirm this in writing.’’
(R. Exh. 4.) By letter dated August 8, Plumos stated that he
would be available to bargain, but also saying, ‘‘The Union
does maintain that the contract is in effect from 1/1/90
through 12/31/92.’’ This statement shows that the Union be-
lieves the contract to have rolled over not for just 1 year but
for 3. Clearly, the Union’s conviction on the rollover is
strongly held. I must assume its belief was just as fierce in
February when Plumos told Nona Alessio that Respondent
was stuck with the contract. That was the Union’s belief then
and is still its belief.
C. The Poll
As touched on previously, Mike Alessio conducted a poll
of Respondent’s employees on February 5. The General
Counsel argues that that date should be disregarded because,
he says, it is the product of leading testimony. That observa-
tion, Although partly true, is not a complete recitation of
what occurred. In fact, Mike Alessio’s testimony is the prod-
uct of refreshed recollection. He could not initially recall the
date as he testified and Respondent’s counsel, following the
rules on such matters, showed him a document which re-
freshed his recollection. It should not be regarded so lightly
as simply the result of a leading question. Certainly no evi-
dence elsewhere contradicts his refreshed recollection.
On that day, about 1 p.m., after the majority of the day’s
work was over and after the drivers had returned from their
routes, Mike Alessio distributed ballots to the employees.
Headed ‘‘Teamster Union Status,’’ it proposed the following:
‘‘I wish to remain with the Teamster Union at Lou’s
Produce,’’ followed by ‘‘yes’’ and ‘‘no’’ boxes for the voter
to check. This was followed by a signature line. All the bal-
lots in evidence are signed. It is undisputed that Mike
Alessio did not follow any of the safeguards which the Board
has long required since its decision in Struksnes Construction
Co., 165 NLRB 1062 (1967). Under Struksnes, a poll will be
found lawful if it meets the following criteria: (1) its purpose
is to determine the truth of a union’s claim of majority; (2)
that purpose is communicated to the employees; (3) the em-
ployer gives the employees assurances against reprisals; (4)
the polling is by secret ballot; and (5) it occurs in a context
free of other unfair labor practices.
Mike Alessio says he told Plumos of the poll in a tele-
phone conversation. He also says a second telephone con-
versation followed sometime prior to March 6. In the second
call, he says, Plumos challenged the poll’s validity. Mike
Alessio says, ‘‘Plumos brought it to my attention that the
election that I had taken was illegal and that he would have
to administer an election.’’ Alessio says they set a second
election for a Thursday afternoon. He advised his employees
of the second election, but says it was never held because
Plumos asked to postpone it. He says Plumos never got back
to him for rescheduling. Frank Alessio, Mike Alessio’s
younger brother and a bargaining unit member, recalls Mike
telling him that a second election would be required and also
recalls that a date and time were set, but was unable to be
any more specific.
Plumos contends that the only time he heard about an
election was on March 6 when Mike Alessio told him, in re-
sponse to a health plan discussion, ‘‘No, I don’t want you.
We already got our health—we already got our health and
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
welfare now. We had an election. You guys are voted out.’’
Plumos says he asked him, ‘‘Well, was it a secret ballot?’’
Plumos says Mike Alessio responded, ‘‘No, it wasn’t a secret
ballot. Everybody just come in here and raised their hand. As
they walked in the door, they raised their hand.’’ Plumos
says he told Alessio, ‘‘I should have been present at this
election that you had’’ also saying to Alessio that it was un-
lawful for Alessio to have held the election without the
Union being there.
I must observe here that Plumos testimony does not com-
port with probability. The ballots clearly were in writing.
Why then would Mike Alessio tell him it was by a show of
hands. Up to that point Respondent had been entirely honest
with the Union. To be sure, it was unhappy with the Union’s
having, from Respondent’s point of view, reneged on the
waiver. Even so, that does not seem to be a motive to lie
about whether the vote had been by written ballot. On the
other hand, Plumos would appear to have a greater motive
to stretch the truth here. He is well aware that the Union’s
case is enhanced by proof of the contention that it did not
learn of the poll and the health plan change until March 6.
Furthermore, he does not want to admit to any error regard-
ing having agreed to a second poll at an earlier time. That
would be embarrassing. I conclude, therefore, that of the two
versions, Mike Alessio’s is the most likely. Furthermore, it
suggests that Plumos’s testimony on other matters must be
considered carefully. In this regard, I find his testimony that
he first told Respondent that the contract had rolled over on
March 6 to be a similar stretch.
D. The Pension Issue
When Mike Alessio realized the 1986–1989 contract had
expired on December 31, 1989, he recalled that in 1986 the
pension trust had refused to accept payments during what he
regarded as a similar hiatus. When he and his ‘‘partner’’ pur-
chased the corporation from his father, Respondent had con-
tinued to make payments to the pension trust. Later, during
an audit, the trust realized that the corporation’s owner was
different from the previous owner. It concluded that it was
improper to accept payments from Mike Alessio for it had
no collective-bargaining contract with Respondent signed by
him; accordingly, it refunded Respondent’s payments for the
period of time preceding the signing of the 1986–1989 con-
tract on the grounds that it could not accept payments in the
absence of a collective-bargaining contract. Whether the
trust’s conclusions were legally correct is not for me to say.
Nonetheless, relying on the trust’s analysis, Mike Alessio de-
cided that it would not accept pension contributions until a
new collective-bargaining contract was signed. Therefore,
Respondent made no payments to that plan in 1990.
However, according to (G.C. Exh. 5) a notice from the
pension trust, Respondent was not delinquent in its 1990
payments until March 11, some 5 days after the March 6 col-
lective-bargaining meeting and approximately 2 or 3 weeks
after Plumos first declared the collective-bargaining contract
to have rolled over.
E. The Alleged Withdrawal of Recognition
The complaint alleges that at the March 6 meeting, Re-
spondent withdrew recognition of the Union as the collec-
tive-bargaining representative of the bargaining unit employ-
ees. The evidence relied on by the General Counsel has been
touched on in reference to other issues. Nonetheless, I shall
recount it here.
In section C, above, regarding the poll, Plumos quotes
Mike Alessio as having said, on March 6, ‘‘We had an elec-
tion. You guys are voted out.’’ At another point, mentioned
in section B, he says Alessio made a similar remark on
March 6 only after Plumos told him the contract had rolled
over. At that point Plumos recalls Alessio responding, ‘‘You
guys are getting too rich for my blood. I want out.’’
Although occurring after the issuance of the complaint, it
is worthwhile to recall that on July 11, 1990, Katzenbach
wrote Plumos asserting that the bargaining had come to an
impasse. Plumos responded offering to set up meetings to re-
solve the contract and on August 2, Katzenbach offered to
bargain for the company, saying, ‘‘I assume from your letter
that the Union is no longer contending that the old contract
rolled over for an additional year. Nevertheless, I would ap-
preciate that you would confirm this in writing.’’ And, as
previously noted, Plumos not only did not confirm abandon-
ment of that position, he extended the claim for an additional
2 years.
IV. ANALYSIS AND CONCLUSIONS
Based on the foregoing factual recitations, I conclude that
Plumos, in mid- to late February 1990, told Nona Alessio
that the 1986–1989 collective-bargaining contract had re-
newed itself. He did it because he perceived, correctly, that
there was no reasonable likelihood that Respondent’s needs
could be satisfied with the health plans which the Union
could offer. He had no authority to offer any other plans and
the only way he could think of to preserve the Union’s
health plan was to impose it. He knew that neither the Union
nor Respondent had by written notice opened the contract for
renegotiation as required by its terms and by Section 8(d) of
the Act. He undoubtedly recognized it as a ready excuse to
justify the rollover claim. He also knew that it was only a
matter of time before Respondent formally rejected the
union-sponsored health plans and proposed something else,
likely the Kaiser plan. He knew the union plans were a fi-
nancial burden, knew there were less expensive plans avail-
able on the market, and knew none of the union plans per-
mitted the relief on casual employees which Alessio said he
needed.
At that point Plumos was himself in a box. He could not
offer what Respondent was willing to accept. He knew the
entire contract turned on the health issue. He had become
stuck; he had no intention of offering any other health plan,
undoubtedly because he had no authority to do so. The
health trust would not allow the waiver and it had no cheaper
plans to offer. His resolution of that problem was to force
the old health plan down Respondent’s throat and hope that
he could persuade them that the old contract permitted him
to do so. Accordingly, he preempted Respondent’s foreseen
proposal of a nonunion-sponsored health plan by telling
Nona Alessio that she was stuck with the old contract, using
the available justification, invocation of the evergreen clause.
That first occurred during his social visit with her, occurred
again during some telephone conversations and, by the time
they met on March 6, was not news to the Alessios. It is
what had caused them to ‘‘join’’ the Kaiser health plan on
March 1.
1203LOU’S PRODUCE
8 Taft Broadcasting Co., 163 NLRB 475 (1967), affd. 395 F.2d
622 (D.C. Cir. 1968).
Plumos decision to tell them that the contract had renewed
itself was a clear violation of Section 8(b)(3) of the Act. This
is a literal refusal to bargain. His peremptory act of declaring
the contract to have renewed itself in that circumstance is lit-
tle different from the ‘‘It’s the short form or nothing’’ found
to have created an unwarranted impasse in R. A. Hatch Co.,
263 NLRB 1221 (1982), or the union’s refusal to acknowl-
edge a proper reopener in Carpenters Local 743 (Armstrong
& Smith Construction), 261 NLRB 425 (1982). In the latter
case, the purpose of the refusal was to deliberately impose
the master contract on an employer not party to the multiem-
ployer unit. It has long been the law that if a union acts in
such a way as to prevent the parties from reaching a collec-
tive-bargaining contract, it will violate Section 8(b)(3). See
Carpenters Local 964 (Contractors of Rockland County), 181
NLRB 948 (1970), enfd. 447 F.2d 643 (2d Cir. 1971). Here,
it seems to me, Plumos declaration that the contract had
rolled over is self-evident proof that he did not wish to nego-
tiate a new collective-bargaining contract. Instead, he wished
to avoid the bargaining table, because he knew it would
eventually result in a health plan which was not union spon-
sored.
The General Counsel, in his supplemental brief, appears to
acknowledge that the Union has stepped over the line. He as-
serts, first, that it occurred after Respondent committed the
first unilateral change and, second, that it was transitory and
in response to a difficult bargaining situation. His proof on
both points falls short. It is clear to me that, even though
exact dates are uncertain, the only logical sequence of events
is that the Union, recognizing that the health plan issue had
become insurmountable, desperately decided to preempt it by
reverting to the old plan through a declaration of rollover. It
knew, even during Coppa’s tenure as union negotiator, that
it was a serious problem. Coppa, it may be presumed, ran
into the same opposition to renewing the previous waiver
from the trust which Plumos later described. That is why he
did not return to the Alessios with a favorable report. Indeed,
his failure to testify supports that conclusion.
Clearly, Respondent made no unilateral changes until
March 1 when it put the Kaiser plan into effect. That is not
to say that it wasn’t aware that the problem needed solving.
It was just as aware as the Union that the health plan issue
was truly difficult. Furthermore, the Alessios are somewhat
naive with respect to their obligations under the NLRA. They
did equate the collective-bargaining relationship as simply
another commercial agreement which might go unrenewed
on its expiration. For that reason they were likely to begin
searching for another plan early in 1990. Even so, they knew
that some of the employees might wish to retain union rep-
resentation. That is the reason Respondent conducted the poll
in early February. Yet, it did not mention that poll or use
it as a weapon in bargaining during the February 14 negotia-
tion meeting. Undoubtedly it did not do so because it wished
to give the Union every opportunity to come up with an ac-
ceptable health insurance plan. Mike Alessio testified that
some of his employees, according to discussions during the
poll, thought that health insurance was the most important
benefit of employment. Clearly, he wanted to honor that con-
cern if he could and was willing to entertain a union-spon-
sored plan which met Respondent’s needs. It was hoped the
February 14 meeting would resolve the problem. Therefore,
he did not inject the results of the poll into the mix until well
after the February 14 meeting, no doubt in a conversation he
had with Plumos on the telephone as he said.
It was the Union’s rejection of the waiver at the February
14 meeting which led Mike Alessio to conclude he must find
health insurance elsewhere. Accordingly, he began looking
into it. Even so, it is not clear that he intended to implement
it without first negotiating with the Union. But, when Nona
Alessio learned from Plumos during that same period that the
Union was declaring that the contract had rolled over, that
confirmed to Mike Alessio that he would have to put the
Kaiser plan into effect. He did so, as noted, on March 1.
Moreover, the General Counsel is incorrect in his assess-
ment that the Union’s position was transitory and only a re-
sponse of frustration. I agree that Plumos was in a frustrating
position, but his stance was not simply ‘‘bluster and banter.’’
If it had been, we would not have seen it continue through
the May 11, 1990 unfair labor practice charge and the subse-
quent correspondence. The Union to this day has not aban-
doned the claim of rollover, even claiming a contract of 3
years’ duration. Although the General Counsel may argue
that Respondent’s argument on the point is simply hindsight,
he was not there and could not observe the parties in action
at the table or in those conversations away from the table.
The Alessios, on the other hand, were participants. Their
judgment of what was occurring cannot be lightly tossed
away as simply lucky hindsight. Indeed, subsequent events
have confirmed the accuracy of the Alessios’ observation: the
Union was, and still is, determined to impose a union spon-
sored health plan on Respondent through its declaration of a
lengthy contract renewal. Clearly, that conduct constitutes a
violation of Section 8(b)(3) of the Act. Mailers Local 89
(Little Rock Newspapers), 219 NLRB 707 (1975); Industrial
Workers AIW Local 770 (Hutco Equipment), supra.
In that circumstance, I find that Respondent was privileged
to deal with the health plan problem and other collective-bar-
gaining matters in a reasonable way. Finding alternate health
coverage clearly is an acceptable way of treating with the
Union’s unlawful adamancy on that very point. It is true that
Respondent did not propose the Kaiser plan to the Union and
one might think at first blush that the failure breached the
Taft Broadcasting rule.8 That rule generally requires, in the
event of impasse, that a party can only implement the terms
of its last proposal for the purpose of breaking an impasse
or else be in breach of Section 8(a)(5). That rule, however,
does not apply in circumstances where a final proposal has
been unlawfully interdicted as here. Specifically, see Young
& Hay Transportation Co., 214 NLRB 252, 253 (1974), affd.
sub nom. Teamsters Local 554 v. Young & Hay, 522 F.2d
562 (8th Cir. 1975). In that case, when the union attempted
unilaterally to merge a newly organized bargaining unit with
an established one (an act which certainly violated Sec.
8(b)(3)), the Board found the employer privileged to unilater-
ally implement a wage increase and fully paid health insur-
ance because the union had refused to bargain in any unit
other than the merged unit. Similarly, see Goodyear Tire &
Rubber, 217 NLRB 73, 78–79 (1975). Again, the union com-
mitted a breach of the bargaining obligation, unlawfully in-
sisting that a successor employer adopt the collective-bar-
gaining contract of the predecessor and refusing to otherwise
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deal with the successor. As a result, the successor imple-
mented an entire economic package covering both wages and
fringe benefits even though it had not clearly advised the
union what was contained in that package, apparently be-
cause the union would not meet. The administrative law
judge found the implementation to be lawful and Board af-
firmed.
The next question is to what extent Respondent may make
other changes. Clearly this Respondent was faced with an
impasse which it could not break by making proposals. The
Union was claiming a contract was already in effect, one
which all parties knew had actually expired. What duty, in
that circumstance, did Respondent have with respect to con-
tinuing to pay into the pension trust? It is true that Mike
Alessio intended to stop paying the pension trust in the naive
belief that it would not accept payments so long as there was
no signed contract in effect. Even so, had the Union not then
taken the position that the old contract had rolled over, and
assuming the health insurance issue could have been re-
solved, all parties agree that a new contract would have been
signed shortly. Had that occurred, Respondent would have
paid the trust’s contributions, at the time the agreement was
signed, perhaps a little late. But the Union’s conduct did not
allow that to happen. Instead it went off on its unlawful tan-
gent; it did so before the pension trust claimed Respondent
was in arrears. Respondent was not to be considered in ar-
rears until March 11, but the Union had begun claiming the
rollover in mid- to late February and had confirmed it on
March 6. In that circumstance, I find that Respondent did not
commit any violation of the bargaining obligation. It was
privileged to break the impasse by not paying the trust, even
if that was not Mike Alessio’s original intent.
In this regard, Inland Tugs v. NLRB, 918 F.2d 1299,
1308–1310 (7th Cir. 1990), is instructive. Noting certain lan-
guage of Teamsters Local 554 v. Young & Hay, supra at 566,
the court held ‘‘[T]he innocent party need not negotiate as
long as the bargaining is forestalled by the illegal demand.’’
See also Louisiana Dock Co. v. NLRB, 909 F.2d 281, 286
(7th Cir. 1990). The Inland Tugs court cites two Board cases
which support that proposition, Midwestern Instruments, 133
NLRB 1132, 1141 (1962); and Nassau Insurance Co., 280
NLRB 878, 891–892 (1980). In both cases the trial examiner
and administrative law judge found the duty to bargain sus-
pended during the pendency of the union’s unlawful conduct.
In Nassau, the duty was suspended even where the unlawful
conduct was violent activity, not simply an unlawful bargain-
ing stance. I find, therefore, that the Union’s conduct here
permitted Respondent to suspend bargaining altogether, in-
cluding suspending its obligation under Section 8(d) to con-
tinue to make payments to the pension fund. In that cir-
cumstance it is unnecessary to determine what affirmative
steps Respondent might have been permitted to take in addi-
tion to the defensive steps it did take.
Insofar as the allegation that Respondent improperly with-
drew recognition about March 6, the General Counsel’s evi-
dence consists primarily of Plumos’s testimony that Alessio
said the Union had been voted out and/or that the Union was
getting too rich for his blood and he wanted out. Noting
what happened afterward, that Respondent offered to bargain
some more, to which Plumos replied that the old contract
was still deemed to be in effect, it is clear to me that Re-
spondent never actually withdrew recognition. Indeed, it
seems to me that the remarks which Plumos says Mike
Alessio made are inconclusive in any event. Moreover, if Re-
spondent was privileged to withhold bargaining while the
Union continued its unlawful stance, Respondent’s tempo-
rary hold on bargaining did not even constitute a withdrawal
of recognition. Goodyear Tire & Rubber, supra. Accordingly,
both on the facts and on the law, Respondent did not with-
draw recognition of the Union in a manner which breached
the Act.
However, the Union’s unlawful bargaining stance had
nothing directly to do with its polling of employees on Feb-
ruary 5. That position had not yet crystallized. Even if it had,
the Union’s bargaining posture, though unlawful, does not
extend to permitting coercive acts in response. It is clear that
Respondent had no objective criteria for conducting a poll at
the time. The Union was not claiming majority status; it al-
ready had it. Moreover, Respondent had no reason to think
that the Union’s majority status had changed. It was only
concerned that the health insurance issue could not be re-
solved and wanted information about the Union’s strength for
possible use at the bargaining table. Therefore, it was not
justified in conducting a poll. See Montgomery Ward & Co.,
210 NLRB 717 (1974), and Texas Petrochemicals Corp., 296
NLRB 1057 (1989), remanded on other grounds 923 F.2d
398 (5th Cir. 1991). It is clear that Mike Alessio has admit-
ted to a violation of Section 8(a)(1) with respect to the poll-
ing. Clearly the vote was conducted without any of the
Struksnes safeguards which are recounted supra at 9. Nor
was advance notice given the Union as required by Texas
Petrochemicals. Therefore, an unlawful interrogation of em-
ployees regarding their union sympathies and desires has oc-
curred. Moreover, it is no defense that Respondent offered to
conduct a second poll with the participation of the Union.
Even crediting Mike Alessio’s testimony, which I do, that
Plumos agreed to participate in another poll, that would not
undo the effects of the unlawfully conducted first poll. Had
the second poll actually occurred, perhaps a waiver might be
inferred. It did not and I am unable to see how employee
rights are protected by finding the defense valid. Accord-
ingly, Respondent’s defense to the poll is rejected. The poll
violated Section 8(a)(1). Because its results were never used
for bargaining purposes, I decline to find that it also violated
Section 8(a)(5).
THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(a)(1) of the Act, I shall recommend that
it be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
On these findings of fact and on the entire record in this
case, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
in an industry affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. On February 5, 1990, Respondent violated Section
8(a)(1) of the Act when it conducted a poll of its employees
1205LOU’S PRODUCE
to determine their union sympathies, sentiments, and desires
at a time when it had no objective justification for doing so
and because it conducted the poll without properly safe-
guarding its employees from any coercive effect the poll may
have had.
4. Respondent has not engaged in any other unfair labor
practice as alleged in the complaint.
[Recommended Order omitted from publication.]