Girardi Industries

National Labor Relations Board - Board Decisions

Jul 24, 1992

307 N.L.R.B. 1497 (N.L.R.B. 1992)

1497
307 NLRB No. 236
GIRARDI DISTRIBUTORS
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 Counsel for the General Counsel’s motion to correct inadvertant
errors in her briefs is granted.
3 In adopting the judge’s recommendation that the informal settle-
ment agreement in Case 1–CA–26660 should be reinstated, we note
that the General Counsel has not specifically excepted thereto other-
wise asserted that the settlement agreement should be set aside.
In relation to the judge’s 10(b) discussion, Chairman Stephens
agrees that the instant case is distinguishable from Kanakis Co., 293
NLRB 435 (1989); and Redd-I, Inc., 290 NLRB 1115 (1988). The
Chairman further observes that the result here is consistent with the
analysis set forth in his dissents in those two decisions.
Member Raudabaugh also agrees that Kanakis is distinguishable
from the instant case and he expresses no opinion as to whether he
agrees with Kanakis.
1 The parties have stipulated that West Coast is an agent of the
Respondent.
2 The charge in Case 1–CA–26394 was filed on May 19, 1989,
while the charge in Case 1–CA–26561 was filed on August 4, 1989.
3 The decision to dismiss the charge in Case 1–CA–26561 was
subsequently upheld on appeal. No appeal was filed in Case 1–CA–
26394.
4 The Regional Director’s partial dismissal of the charge was
upheld on appeal.
Girardi Distributors, Inc., Quabbin Labor Pool,
Inc., Erin Distributors, Inc., Suburban Con-
tract Carriers, Inc., Commonwealth Labor
Pool, Inc., and Metrowest Warehousers, Inc.
and Truck Drivers & Helpers, Local 170, a/w
International Brotherhood of Teamsters, AFL–
CIO.1 Cases 1–CA–26394, 1–CA–26561, 1–CA–
26660, and 1–CA–27243
July 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 19, 1991, Administrative Law Judge
Wallace H. Nations issued the attached decision.
Counsel for the General Counsel filed exceptions and
a supporting brief,2 the Respondent filed an answering
brief, and the General Counsel filed a brief in re-
sponse.
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
decided to affirm the judge’s rulings, findings, and
conclusions,3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Repsondents, Girardi Distributors, Inc.,
Suburban Contract Carriers, Inc., Commonwealth
Labor Pool, Inc., Metrowest Warehousers, Inc.,
Quabbin Labor Pool, Inc., and Erin Distributors, Inc.,
Leominster, Massachusetts, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
William F. Grant and Gene Switzer, Esqs., for the General
Counsel.
Henry F. Telfeian, Esq., of San Francisco, California, and
Fred R. Long, Esq., of Los Gatos, California, for the Re-
spondent.
Donald S. MacCalmon, Esq., of Boston, Massachusetts, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Truck
Drivers and Helpers, Local 170, a/w International Brother-
hood of Teamsters, AFL–CIO (the Union) represents certain
employees of Girardi Distributors, Inc. (Respondent or
Girardi), for purposes of collective bargaining. At all times
relevant to this case until April 16, 1990, Respondent has
recognized the Union as the exclusive collective-bargaining
representative of the unit employees, such recognition being
embodied in successive collective-bargaining agreements, the
most recent of which was effective by its terms for the pe-
riod May 19, 1986, to May 19, 1989 (the 1986–1989 agree-
ment).
The Union and the Respondent commenced negotiations
for a successor agreement to the 1986–1989 agreement on or
about April 18, 1989. Respondent engaged the services of
West Coast Industrial Relations Association (West Coast) to
represent it in negotiating.1 Negotiations continued through
September 4, 1989, when Respondent, on that date, imple-
mented its final offer.
The Union filed the charges in Cases 1–CA–26394 and 1–
CA–26561 prior to Respondent’s implementation of its final
offer.2 Those charges alleged, inter alia, that the Respondent
had engaged in bad-faith bargaining in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). The charges also contained 8(a)(3) allegations relating
to the Respondent’s conduct during the bargaining process.
After investigation, those charges were dismissed by the Re-
gional Director.3
On September 8, 1989, the Union filed the charge in Case
1–CA–26660. That charge alleged, inter alia, that Respondent
violated Section 8(a)(5) when it implemented its final offer
as well as Section 8(a)(1) by certain statements attributed to
Kenneth White, Respondent’s operations manager. After in-
vestigation, the Regional Director dismissed that portion of
the charge alleging that Respondent had unlawfully imple-
mented its final offer, while the alleged 8(a)(1) statements
became the subject of a unilateral, informal settlement agree-
ment approved by the Regional Director on February 22,
1990.4
On December 1, 1989, Respondent, without explanation,
notified the Union of its withdrawal of its final offer. Re-
spondent subsequently contacted the Union to inform it that
it was considering utilizing a subcontractor to perform the
work that was being performed by the unit employees. On
1498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Amended charges were filed in Case 1–CA–27243 on November
27 and March 13, 1991. Those amended charges were never made
a part of the record herein. On brief, General Counsel moved that
the record in this matter be reopened for the limited purpose of ac-
cepting into evidence those amended charges. Counsel for the Charg-
ing Party and the Respondent were apprised of this motion and do
not oppose it. The motion is granted.
6 The consolidated complaint also set aside the informal settlement
agreement in Case 1–CA–26660, and, as such, the consolidated com-
plaint contains an 8(a)(1) allegation relating to statements attributed
to White. The General Counsel also moved to consolidate Cases 1–
CA–26394, 1–CA–26561, and 1–CA–26660 with Case 1–CA–27243.
or about April 2, and again on April 4, 1990, the Union re-
quested the Respondent to provide it with the name of the
subcontractor the Respondent was thinking of using to per-
form the unit work. Respondent refused to provide that infor-
mation. On or about April 13, 1990, Respondent began to
use a subcontractor to perform the unit work which resulted
in the discharge of all unit employees.
On April 16, 1990, the Union filed the charge in Case 1–
CA–27243, alleging, inter alia, that Respondent’s refusal to
provide it with the name of the subcontractor violated Sec-
tion 8(a)(1) and (5) of the Act. After an investigation, a com-
plaint was issued on June 28, 1990, alleging that Respond-
ent’s refusal to provide the Union with the name of the sub-
contractor violated Section 8(a)(1) and (5) of the Act. The
complaint further alleged that the Respondent had subcon-
tracted the unit work without providing the Union an oppor-
tunity to negotiate and bargain over the matter and had with-
drawn recognition of the Union in violation of Section
8(a)(1) and (5) of the Act. A hearing on the complaint was
scheduled for November 19, 1990.
On the morning of November 19, 1990, prior to the open-
ing of the hearing in Case 1–CA–27243, David Murphy and
Peter DeVito, the principals of the subcontractor that Re-
spondent was using to perform the unit work, presented
themselves at the Regional Office. Murphy and Devito pro-
vided certain information to counsel for the General Counsel
regarding their relationship with Respondent which caused
counsel for the General Counsel, with the assent of Respond-
ent, to request an adjournment of the proceeding. Further in-
vestigation was performed, resulting in the receipt of certain
information from now former Operating Manager Kenneth
White. Based on the information provided by messengers
Murphy, DeVito, and White, the Regional Director decided
to reinstate the earlier dismissed charges on the theory of
fraudulent concealment. That information also caused the
General Counsel to move to amend the complaint in Case 1–
CA–27243.5 With respect to the issues of fraudulent conceal-
ment, the General Counsel contends that the information pro-
vided by messengers Murphy, DeVito, and White revealed
that Respondent had engaged in an elaborate scheme with
West Coast to rid itself of the Union, using the collective-
bargaining process to conceal that fact from both the Union
and the General Counsel.
A consolidated complaint and notice of hearing issued on
March 15, 1991, in Cases 1–CA–26394, 1–CA–26561, and
1–CA–26660 (the consolidated complaint) alleging that the
Respondent had engaged in bad-faith bargaining during the
months of April through September 1989 and that it had un-
lawfully implemented its final offer on September 4, 1989,
in violation of Section 8(a)(1), (3), and (5) of the Act.6
A motion to amend complaint in Case l–CA–27243 (the
amended complaint) issued on March 14, 1991. Essentially
the amendment identified the subcontractor to whom the
work was assigned in April and alleged it to be a single em-
ployer with Respondent. The April 1990 subcontracting of
bargaining unit work and the discharge of the bargaining unit
was alleged to constitute a violation of Section 8(a)(1) and
(3) of the Act and the April 1990 withdrawal of recognition
of the Charging Party was alleged to violate Section 8(a)(1)
and (5). The amended complaint also alleged Quabbin Labor
Pool, Inc. to have been, since its creation in September 1990,
an alter ego and disguised continuance of Respondent. Prior
to the close of the hearing herein, Erin Distributors Inc. was
also added to the complaint as an alter ego and disguised
continuation of Respondent.
Prior to the commencement of the hearing in these mat-
ters, Respondent, among other things, filed a motion to strike
the consolidated complaint. By its motion, Respondent as-
serts that the allegations contained in the consolidated com-
plaint are barred by the 6-month statute of limitations pro-
viso of Section 10(b) of the Act. Respondent further main-
tains that it has not fraudulently concealed operative facts, or
evidence thereof, from either the Union or the General Coun-
sel that would warrant the tolling of the 10(b) period within
the meaning of the Board’s decision in Ducane Heating
Corp., 273 NLRB 1389 (1985), enfd. 785 F.2d 304 (4th Cir.
1986).
Respondent also argues that the settlement agreement in
Case 1–CA–26660 was not properly set aside. Finally, Re-
spondent asserts that the allegations in the motion to amend
the complaint in Case 1–CA–27243 are barred by Section
10(b) as they are not closely related to the allegations con-
tained in the original complaint.
A hearing was held on these matters on March 25 to 29,
April 1, 17, and 18, and May 8, 1991. Because of the 10(b)
issues raised by the consolidated and amended complaints,
including the legal issue of the alleged fraudulent conceal-
ment, the hearing in these matters closed on May 24, 1991,
under the following terms. Respondent has conditionally
amended its answer to the amended complaint to now admit
all of the factual allegations in paragraphs 1–23. If the con-
solidated complaint is dismissed as time barred under Section
10(b), Respondent’s amended answer will be effective. If, on
the other hand, the consolidated complaint is not dismissed
pursuant to Section 10(b), the hearing shall resume for the
purpose of the Respondent presenting a defense to all of the
allegations of the consolidated and amended complaints.
I. JURISDICTION
It was admitted and I find that Girardi Distributors, Inc.,
Suburban Contract Carriers, Inc. (Suburban), Commonwealth
Labor Pool, Inc. (Commonwealth), Metrowest Warehousing,
Inc. (Metrowest), Quabbin Labor Pool, Inc. (Quabbin) and
Erin Distributors, Inc., all Massachusetts corporations, were,
at all times material to this proceeding, employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1499GIRARDI DISTRIBUTORS
7 This bargaining unit voted to decertify the Union some time be-
fore the events herein involved occurred.
8 Chasson was approached in March 1991 by persons from the
NLRB to give testimony in this proceeding. He was not so ap-
proached at any time while the charges of bad-faith bargaining were
pending. White was likewise asked about his knowledge of the
events surrounding bargaining only after he came forth and volun-
teered information with respect to the subcontracting issue. No rea-
son was given why these men or any other employees of Respondent
were not interviewed with respect to the earlier charges filed by the
Union.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issues presented for determination in this proceeding
are as follows:
1. Has General Counsel established a prima facie case
concerning Respondent’s bad-faith bargaining as alleged in
the consolidated complaint and if so,
2. Is the statute of limitations period of Section 10(b) of
the Act tolled by Respondent’s fraudulent concealment of
operative facts, or,
3. Are the allegations of Respondent’s bad-faith bargaining
closely related to the Respondent’s unlawful 8(a)(1) condi-
tional promises to employees, which were the subject of a
properly set-aside settlement agreement?
4. Are the allegations contained in General Counsel’s mo-
tion to amend the complaint in Case 1–CA–27243 barred by
the statute of limitations period of Section 10(b) of the Act?
5. Are the legal conclusions drawn from the factual allega-
tions that were plead in the amended complaint and admitted
by the Respondent warranted?
A. Prefatory Statement Concerning Credibility
Resolutions
Depending on the Board’s determination of the 10(b) ele-
ments of this case, this decision will either mark the end of
this dispute as it presently stands, or merely the halfway
point in its trial. As noted above, only the General Counsel
has submitted evidence to this point. The Respondent has es-
timated that it will present evidence requiring hearing of
equal or greater length than that held thus far in the event
the Board’s ruling on the limitations question is adverse to
it. The Respondent’s evidence, if presented, will obviously
have a great bearing on credibility resolutions presented,
many of which cannot even be identified at this stage. Any
serious attempt to make binding credibility resolutions now
can only be said to be folly.
Therefore, for the purpose of reaching an ultimate decision
on the limitations issues, I have decided to accept the Gen-
eral Counsel’s recitation of fact as the operative facts to de-
termine the issues presented. As I believe that the limitations
provisions of Section 10(b) are not tolled in the cir-
cumstances presented herein, and thus most of the serious al-
legations of violations of the Act are not reached for a deci-
sion on the merits, I will accept General Counsel’s recitation
of facts as presented on brief virtually unchanged in order
that General Counsel’s case can be viewed in the light most
favorable to him. The only exception to this method of pres-
entation will be if evidence I deem relevant to the issues has
been omitted.
In the event that the Board determines that the limitations
provisions of Section 10(b) are tolled, and thus further hear-
ing is required, I will not be bound in any fashion by this
recitation in making final credibility resolutions.
B. Recitation of Facts
1. Background
Respondent is a distributor of Anheuser Busch products,
beer, and liquor; a related company, Regal Eagle, Inc. (REI)
collects and processes empty containers under the Massachu-
setts ‘‘bottle bill.’’ The Companies’ geographic territory en-
compasses northern Worcester County and Franklin County,
two relatively rural areas in northwestern Massachusetts. As
of 1989, Respondent operated the following facilities: Athol,
Massachusetts, which housed Regal Eagle operations and
corporate headquarters; Leominster, Massachusetts, which
was the base of operations for Worcester and Franklin Coun-
ties beer distribution; Greenfield, Massachusetts, which was
engaged in Anheuser Busch beer and liquor distribution and
Pittsfield, Massachusetts, which is a separate bargaining unit7
engaged in distributing Anheuser Busch beer in Berkshire
County.
George ‘‘Buddy’’ Girardi Jr. owns the Company (includ-
ing REI), which was founded by his grandfather, and run by
his father George Girardi Sr. until approximately 1985, when
he took over. Prior to 1985, there were harmonious labor
management relations. For example, long-term employee and
union bargaining unit member Richard Chasson described
George Girardi Sr. as a friend as well as a boss. By all ac-
counts this changed when Girardi Jr. took over. Chasson tes-
tified that Girardi Jr. told him soon after assuming control
that the Union was forced upon his father and one of his pri-
orities was to get rid of the Union.8 Chasson indicated that
this was common knowledge and that various management
persons had indicated to him over the years that they wanted
to get rid of the Union. He testified that Girardi would from
time to time try to persuade the union personnel that they
would be better off with the benefits the Company gave to
nonunion personnel than with the union benefits. Kenneth
White likewise testified that during this general time period
Girardi Jr. told him one of his goals in the business was to
be ‘‘Union free.’’ After taking over the business, Girardi first
moved liquor and wine distribution from the Athol union op-
eration to the nonunion Pittsfield plant, and later transferred
the suburban Franklin County Anheuser Busch deliveries
from Athol to Pittsfield. The Union grieved this action,
which was referred to arbitration. The arbitration award dated
July 12, 1988, referred to the transfer of work out of the bar-
gaining unit as ‘‘a decision that undermines the Union and
attacks the integrity of the bargaining unit,’’ and suggests
that the transfer was not made in good faith. The award or-
dered the work returned to the bargaining unit.
Kenneth White was employed by Respondent for 25 years,
starting as a helper on a beer truck and working his way up
in the organization. At the time of his separation, on May
15, 1990, he was operations manager, overseeing receiving
and shipping of all Anheuser Busch products, in which ca-
pacity he directly supervised the bargaining unit involved in
this case, which consists of warehouse employees, truck-
drivers, and helpers. As first-line supervisor, White was the
first management official in the grievance procedure.
1500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 White testified that in explaining his plan to the team, Girardi
wanted to show how the men could make fairly decent money by
delivering x number of cases, and could make more money by doing
it in less hours. Reducing the Company’s labor costs was evidently
not a matter of economic necessity. However, the Company did pre-
pare a study that demonstrated, at least to it, that its union work
force was overpaid in relation to other workers in its area.
10 According to Chasson, Girardi had been proposing this change
to the men since he took over the Company. Although it is not clear,
this may well have been a formal company proposal in the negoti-
ating for the 1986 contract.
11 White testified that the strike manual was distributed ‘‘just to
get ready, just in case there was a strike, what we could do, what
we couldn’t do.’’
2. Bargaining
White testified that Girardi learned of West Coast through
an industry newsletter, and was impressed with the union
concessions and decertification which the organization had
obtained for other employers in the industry. Girardi told
White that he was going to hire West Coast to negotiate con-
tract concessions in the upcoming round of negotiations.
After West Coast was hired, a team was formed to review
the collective-bargaining agreement ‘‘to take things out and
to add things that we wanted to change in the contract.’’ The
team consisted of West Coast Attorney Wayne Peterson,
Girardi, General Manager Robert Curran, Advertising Man-
ager Mark Dusay, White, and occasionally Warren Barnett,
the Company’s accountant. The team met approximately six
times before beginning bargaining with the Union.
One of Girardi’s goals was to alter the form of compensa-
tion, changing from an hourly rate to an incentive system.
John Blake from the Denver Management Group was hired
to devise an incentive system. He met twice with members
of the Girardi team prior to bargaining. He was originally in-
structed to convert the employees’ present incomes to a per
case payment. Blake calculated that this converted to 22
cents per case for a one-person truck, and 32 cents per case
for a truck with a driver and helper. He also recommended
a quarterly bonus. Girardi did not like Blake’s plan because
the compensation was too high, and prepared his own plan
providing for compensation of 10 cents per case, with no
provision for a bonus. Girardi objected to the bonus because
it was going to cost him too much money.9 It was decided
that in actual bargaining they would start off at roughly 75
cents per case and gradually move up, leaving a ‘‘paper
trail’’ of all movement. In its June 6, 1989 statement of posi-
tion filed in response to Case 1–CA–26394, Respondent al-
luded to ‘‘three or four complete offers on its economic pro-
posals . . . . [E]ach of the offers were more generous than
the previous one,’’ and stated that the wage structure was
fashioned to provide a ‘‘competitive rate’’ for the area.
During the prebargaining meetings of the management
team it was decided that management would propose elimi-
nating the Union’s health and welfare and pension plans, and
propose replacing them with the Guardian Health Insurance
Plan (which was in effect for other Girardi employees) and
a 401(k) pension plan.10 The management team thought this
change would result in a substantial loss to the Union, which
in turn would cause the Union to recommend a strike. In-
deed, West Coast’s representative throughout, Warren Peter-
son, expressly predicted, ‘‘They’re going to strike us on this
one.’’
At one point during the initial meetings of the manage-
ment team White proposed removing the union-security
clause, but Peterson rejected the idea ‘‘[B]ecause the Labor
Board would jump all over us.’’
White testified that Girardi wanted a contract he could
‘‘live with, by cutting out everything and getting concessions
from the Union that he could live with, knowing that they
[the Union] wouldn’t like it, and possibly strike us.’’ White
also testified that the management team intended to go in
with a low contract:
THE WITNESS: Mr. Girardi said it, I said it, I think
Mr. Dusay said it. It was a pretty low contract that we
were starting to negotiate. This was just to start negoti-
ating.
JUDGE NATIONS: What do you remember Mr. Girardi
himself saying on that issue, on that subject?
THE WITNESS: Word for word I can’t be sure, but
what I just said, going in with a low contract, that they
wouldn’t really like it. And if they should strike us,
anybody, like this thing was, the expression that day
and that time was that anybody in their right mind
would strike us with this contract.
JUDGE NATIONS: That’s what Mr. Girardi said?
THE WITNESS: I can’t be sure, but Mr. Girardi and
Mr. Peterson, Mr. Dugay, or myself, or Mr Curran.
According to White, ‘‘Girardi wanted them [the Union] to
strike so he could replace the union personnel with non-
union men and advertise to do it.’’ No one else said this in
the prebargaining meetings.
The management team engaged in strike preparations well
before actual face-to-face bargaining with the Union began.
Peterson distributed two documents, a strike preparation
manual and bargaining check list at approximately the sec-
ond team meeting. The check list enumerated duties for the
various management officials in preparation for a strike. For
example, section I, ‘‘Pre-bargaining,’’ includes the following
enumerated duties: ‘‘12. Potential strike replacement require-
ments form . . . 18. Office duties after strike . . . 24. Select
hiring site . . . and 26. Develop final company proposals,
Section II, in conjunction with bargaining included: 1. Begin
bargaining; 2. Run ad; and 3. Interview and screen appli-
cants. Check references . . . Section III Post Strike included:
1. New employee orientation and operations; and 2. Start up
and run.’’ The strike preparation manual was distributed for
review by team members, but was then taken back and redis-
tributed at ‘‘crunch time’’ when implementation was immi-
nent and a strike was anticipated. It is a detailed description
of procedures to be followed in the event of a strike.11
White testified that in the management meetings Peterson
expressly described West Coast’s approach as showing a lot
of movement and leaving a paper trail for the Labor Board.
Respondent’s bargaining notes and the truncated testimony of
Union Agent Harold Berry verify such movement and metic-
ulous recordkeeping by Respondent.
Respondent’s bargaining notes show movement, especially
with regard to the proposed management-rights clause. Man-
agement began bargaining by submitting to the Union a
lengthy contract proposal containing numerous changes in
not only the basic form of compensation and benefit pack-
1501GIRARDI DISTRIBUTORS
12 Maroni also stated at several points in his testimony that all con-
versations at about this time, whether it be with management or
members of the bargaining unit, revolved around ‘‘the fact that it
was well known that there was a union/labor dispute with the ulti-
mate outcome hoping that Girardi would bust the union.’’ Either
prior to or during negotiations, he had a conversation with the
Union’s steward at Girardi and was told by the steward that
Girardi’s aim in negotiating was to bust the Union. He also testified
that White told him that there was going to be a strike, but never
told him that he hoped there would be a strike. The substance of
his testimony in this regard, and specifically his testimony about
management personnel volunteering to him that they were out to
‘‘bust the Union’’ was told to the Union’s attorney in an interview
held in August or September 1990.
age, but also extensive changes in contractual language. The
management-rights clause included the right to subcontract
all bargaining unit work:
[T]o subcontract work in the event this becomes a con-
sideration of the Employer, then the Employer agrees
that before doing so, they shall notify the Union prior
to, and at the request of the Union to discuss and ex-
plain its reasons or basis for that consideration.
On June 2, 1989, Respondent agreed in a side memo-
randum not to subcontract ‘‘beyond current levels.’’ Re-
spondent alluded to this ‘‘concession’’ in its statement of po-
sition submitted in Case 1–CA–26394:
Finally, at this session, the Company also presented to
the Union a side memorandum dramatically restricting
the right of the Company to subcontract in an attempt
to allay the Union’s fears that bargaining unit work
might be subcontracted out from underneath the em-
ployees.
As planned, the initial incentive rate proposal provided for
payment of 75 cents per case.
Shortly after the commencement of bargaining White met
with Special Response, the security force which was to be
employed during a strike.
White testified that he attended three of the negotiating
sessions, one of which concerned the Guardian Health Insur-
ance Plan. At the May 18, 1989 session the Union pointed
out, and management agreed, that the Guardian Policy was
actually more expensive. Respondent’s bargaining notes con-
tain the following entry for the May 18 session:
M-We have a better plan; willing to pay more, is
there anything in your plan that is not offered in Guard-
ian?
U-We’re self insured & our costs are high; have
trouble keeping costs in line; don’t know how you can
do it.
M-Guardian Rep. explains size of Company and fact
it is profitable. (Gen. discussion about plan.)
U-indicates it wants to keep own plan.
M-indicates its plan is better and wants men to have
a better plan, even though it may cost more.
U-says it doesn’t want a better plan, give men wages
instead since M is cutting them; never seen a Company
willing to voluntarily give increase.
M-we wan t pay competitive wages, but also know
how important health plan is to men.
U-we don’t want a change.
In May 1989, after the Company proposed incentive pay,
management planned interviews for replacement employees.
Advertisements were taken out in several area newspapers.
These ads sought drivers and helpers offering starting pay of
$10 to $12 per hour for drivers and $9 to $10 per hour for
helpers, with substantial benefits. Nothing in the ads indi-
cated the positions were other than permanent. White ex-
plained the reason for that testifying ‘‘They got the Company
figure, that [the Union wasn’t] going to accept it, and they
were going to strike us.’’ Between May 10 and 17, 1989,
White and Dugay interviewed approximately 500 individuals
at two locations and compiled a list of 50 possible replace-
ments. Interviewees were told that the Company was in ne-
gotiations with the Union, and that if the Union struck, they
would be hired as full-time, permanent replacement workers.
White testified that the Union never accepted the incentive
plan and that the Company’s final offer was implemented on
September 4, when the parties reached impase at the bar-
gaining table. White testified that management was shocked
when the Union did not strike at implementation.
Daniel Maroni owned a tire dealership in Athol which
serviced the Respondent. After Maroni’s business closed, he
was hired by White in May 1989. Maroni know messengers
Curran, Dugay, King, and White through his tire business,
and perhaps because of this was given work assignments
throughout the Company. Specifically, he cut brush around
the Athol facility, went out on trucks, performed miscella-
neous REI work, painted the Greenfield warehouse, was a
night watchman for the Leominster facility, and assisted in
the April 1990 move from Leominster to Athol.
As noted, when Maroni was hired negotiations had only
recently begun, and a wage proposal calling for dramatic re-
duction in pay had been made by the Company. According
to Maroni, he and all other nonunion, nonmanagement em-
ployees at Girardi’s were viewed by distrust by unit employ-
ees. He appears to have enjoyed the confidence of manage-
ment, and he had numerous conversations about the Union
with various members of management, and notwithstanding
their distrust, had similar conversations with union employ-
ees. The first occurred within a few weeks of his hiring
when he encountered Curran in the Athol warehouse and de-
scribed to Curran the verbal abuse he had received from the
union men. Curran’s response was ‘‘in our process of busting
the union . . . things may get worse, but if you stick in there
and stick with us and do your job . . . they’ll be a job for
you in the end.’’12
White testified that under the implemented incentive sys-
tem the top men would do as well or better than before, but
that there was ‘‘no way’’ that the men who were lower on
the seniority list could match their previous wages. In this
regard Maroni testified:
When they implemented the incentive contract and
went to the piecework type pay, it was a considerable
cut in pay for me, and—and I questioned Ken White
as to, you know, well, why should I go on a delivery
truck and—and work 14 hours for $65 when, in fact,
I could go back to the Athol warehouse and cut brush,
for instance, for eight hours and make $80.
1502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 In connection with the charge filed over these statements, the
Board took the affidavit of unit member, Peter Lyman. Lyman
swore, inter alia, ‘‘We all knew the Company would like us to go
non-union.’’
14 DeVito trucking companies gross over $15 million a year, oper-
ating 25 tractor-trailers in a nationwide produce purchase and haul-
ing operation.
You know, it was that type of—of instance that I
was losing money by staying on the delivery truck,
and—and Ken White’s answer to me was just to stick
with it, bear with it and that in the end, it would be
worth it again. I heard that many times.
Q. From who?
A. Ken White, Bob Curran, Mark Dugay, Dave
King.
I mean, it’s part of what’s going on within this com-
pany, you know. Why do I have to work under this in-
centive plan? Well, you got to do this. You have to
stick with this and—and once the union is out, things
will change.
Q. Who said that?
A. Again, at one time Mark Dugay, Ken White, Bob
Curran and Dave King. At one point in time, each one
of them have said that, conveyed that to me in one
form or another.
Union Shop Steward Tom Williams was on vacation dur-
ing the first week of operations under the incentive contract.
When he returned to work he demanded that White explain
the new system of compensation, and a heated exchange oc-
curred during which time no one began work. The next day
Curran ran into Maroni and asked him to describe what had
happened. According to Maroni, in the course of that con-
versation, Curran said, ‘‘I can’t wait until we get rid of the
Union.’’ During the conversation Curran also remarked that
the Union is going to be upset with actions, and as such, for
Maroni, ‘‘it was going to get worse before it gets better’’;
but that ‘‘it would get better when the union is gone.’’ In
fact, Curran promised Maroni one of the jobs of the union
men after management got rid of the Union.
Respondent’s Pittsfield employees were paid on on hourly
basis. White testified that after the incentive rate was put into
effect, the employees assigned to Leominster complained
about the drastic reduction in their pay and he told them, ‘‘I
suppose if you were non-union, you’d be getting the same
pay Pittsfield is getting.’’ Also, shortly after implementation
various drivers complained to White that unlike the Regal
Eagle employees, they were not permitted to wear shorts.
White’s response to the complaints was ‘‘If you were prob-
ably non-union, you could probably wear Bermuda shorts.’’
According to White he made the statement because Girardi
had earlier told him that ‘‘If they vote to get out of the
Union, they’d get the same pay as Pittsfield.’’13
The implemented contract did not provide for arbitration.
According to White, Curran on a number of occasions said
‘‘let (the Union) write the grievances, because its going to
stop at my desk anyway.’’
3. Subcontracting
In approximately late January 1990, DeVito and Murphy
learned from Jimmy DeSilva, the owner of another trucking
company, that Respondent was looking for somebody to take
over some contract work because of ‘‘Union problems.’’
DeSilva himself was not interested in the work because he
had other negotiations going on with Local 170 in Vermont.
Both DeVito and Murphy spoke to Curran and arranged to
meet in Athol. Curran told Murphy that the meeting would
have to be held in the evening because he did not want any
of their employees to know what was going on. Curran fur-
ther stated ‘‘[W]e would prefer that you didn’t come with a
vehicle with a company name on it.’’
The first meeting was between messengers DeVito, Mur-
phy, Girardi, and Curran. Girardi began by saying they came
‘‘very highly recommended.’’ DeVito and Murphy described
their produce business.14 According to DeVito, after some
general conversation, Girardi said ‘‘let’s cut the bullshit, I
want to let you know why you guys are here . . . we’re hav-
ing difficulties and problems with the Unions and we’re try-
ing to get rid of the son-of-a-bitches . . . . I’ve been trying
to get the bastards to strike for the last two months and I’ve
been unsuccessful.’’
Murphy also testified that at the first meeting Girardi said
he had ‘‘tried to get the Union to strike on a couple of occa-
sions and [the Company was] really hoping they would.’’
Murphy further testified:
They had tried, Girardi had tried and was hoping that
the Union would strike—you know—point blank. And
he said that Berry isn’t as stupid as he looks, because
they never turned around and strike. And they couldn’t
you know—he just couldn’t believe it. He figured they
would any time.
Girardi then referred to beating the Union in Labor Board
cases and announced ‘‘We’re going to get rid of the Union.’’
Q. Did he say how?
A. Yeah. Through his attorneys, through his attor-
neys, because like I say, they were the best of the best.
According to Mr. DeVito, Mr. Girardi also stated:
I think he said Washinston, once, and they had an-
other meeting that was coming up, if in fact they could
get them to strike, which he was trying to make them
do. And he was unsuccessful, because he was cursing
them. He kept calling them, ‘‘No good son-of-a-
bitches,’’ he says, ‘‘If I can get them to strike, you
guys can start the very next morning. ‘‘And said,
‘‘What if you can’t get them to strike?’’ He says, ‘‘you
can start anyway.’’ I said, ‘‘Okay. Let’s talk about the
money.’’
Girardi used the blackboard to set forth the nature of the
operation and the numbers involved, including the seasonal
nature of the business, the rural area included in the sales
territory and the number of employees needed. Although
DeVito and Murphy were ‘‘overwhelmed’’ by the presen-
tation, they were interested.
Although the two men both recalled the opening part of
the initial meeting, their recollections varied as to the par-
ticular meeting at which various events occurred. Either at
the first meeting (according to DeVito) or at the second
meeting (according to Murphy), the costs of operating the
1503GIRARDI DISTRIBUTORS
delivery operation were set forth in detail, and a formulation
was presented which left them with a $100,000 profit.
DeVito described the ensuing exchange:
I said, ‘‘What’s the matter with that . . . don’t entice
me to come the fuck up here and drive three hours and
bring a crew here to work. For a hundred grand, you
know?’’
He says to me, ‘‘Well, well, wait now.’’ He says,
‘‘How about Blue Cross Blue Shield, a K-5 plan, all
this health insurance bullshit.’’ He says, ‘‘Warren,’’ he
says to Bob, because Warren wasn’t there. ‘‘Bob, get
Warren Barnett on the phone. ‘‘So, he calls downstairs
to Warren.’’
He says, ‘‘Warren, how much do we pay for the
Blue Cross and the Blue Shield and the health and ben-
efit package, the whole thing?’’
So, Warren says, ‘‘Give me a minute.’’
So a couple of minutes goes by, we’re just sitting
studying the numbers, Dave and I. And Warren comes
up. He says, ‘‘$7600 a man,’’ he had it all listed on
a piece of paper. ‘‘That’s what it costs us per man to
give them the health and benefits.’’
‘‘I’ll give you that,’’ he says.
‘‘How much is 14 men times $7600,’’ he says, for
calculation, he went up to the blackboard again, he
says, ‘‘$106, 000. I’ll give you that $106,000 but I
can’t give you that $106,000 in the contract.’’
I said, ‘‘Why can’t you give me the $106,000?’’
He says, ‘‘Because we’re going to get into that right
now. I need to show the Union and the Labor Board
economic savings versus what I’m paying now with the
increase that the Union’s looking for. I can give you
the $106,000, but this contract can only show for the
$100,000.’’
After DeVito agreed that he would perform the work for
that amount, DeVito testified to the following exchange:
Girardi says, ‘‘But, we have to figure a way to make
this an arms length transaction.’’
I didn’t know what the fuck he was talking about.
I says to him, ‘‘You come with the 206, stand over
there, pass it to me, and that’s arms length, what do I
care. I’ll do whatever you want me to do,’’ I told him.
So he started laughing and he put his arm around me
and he said, ‘‘I like you,’’ he says.
The discussion regarding ‘‘arms length’’ continued; Mur-
phy testified that at one point Girardi indicated:
He was going to put his daughters in business and
do the game thing basically we were going to do, but
the National Labor Board would be able to see right
through it, being his daughters and everybody else. And
they needed somebody that wasn’t close to them, some-
body that wasn’t from Athol. Because if not, he had
other key people in his organization that he could turn
around and front.
Well, the ultimate, the whole goal of everything is
to get rid of the Union, make sure it’s all non-union—
you know—it’s a arms length transaction, and you have
to protect yourself doing it also.
We don’t want the Union back.
Murphy testified that Girardi was not concerned about the
comparative cost:
If I needed cars, if I needed anything, he said he
didn’t care, point blank, if it cost the same or a little
more as long as he got rid of the fucking Union. Quote,
unquote, that’s it.
Q. The same or a little more than what?
A. Of whatever the Union was charging. He didn’t
care, he just wanted them out. He spent too much time,
he spent too much money.
Like he kept saying, he’d turn around and he’d say,
‘‘That’s why you people are here. That’s why I hired
the best attorneys money could buy.’’
I admired the man because he knew one thing, point
blank, he wanted to do it first class, he would have
done it, except he got amnesia when it came to paying.
Murphy and Devito devised a system that they believed
would meet everyone’s needs, and presented the plan to
Curran and Girardi. Three corporations were to be formed,
Suburban Contract Carriers (Suburban), Metro West
Warehousing (Metro West), and Commonwealth Labor Pool
(Commonwealth). Suburban was to perform the actual deliv-
ery and warehouse work. Commonwealth was to ‘‘lease’’
labor to Suburban. Metro West Warehousing was originally
conceived to ‘‘warehouse the product.’’
At the meeting to discuss the arrangement further details
were worked out. DeVito pressed Girardi on how the
$106,000 was to be paid, since it was not to be in the con-
tract.
DeVito testified to the following exchange:
Warren Barnett says, ‘‘Well Buddy, you know we
can’t pay them out of Girardi, because the Labor Board
for the Union comes in and audits our books and sees
a direct payment to these guys, we’re in deep shit. And
they will come in and audit.’’
So, Buddy turns to him and says, ‘‘Very, very good
point.’’
So, Bob Curran says, ‘‘Well, what’s the difference,
we go other corporations. We got Regal Eagle, we can
pay them . . . out of there.’’
There was a corresponding need to hide the receipt of the
$106,000; Murphy testified to how that was to be handled:
Oh, that there, we turned around and that’s what
Metro West was for. It was a vehicle to funnel the
money.
We turn around and—whatever the contract would
read, okay, which we had no idea at the time, whatever
the contract would read, whenever they needed to go
before the Labor Board, I would turn around and we
would take the payments, whatever it would be and any
monies for overages or any cars or anything whatso-
ever, they would write the check to Metro West.
Q. What did you need a funnel for?
You needed to turn around and show it’s an arms
length transaction.
So, when you turn around and when the Judge asks
me, when I go in before him, ‘‘How much did Subur-
ban Contract Carriers make out of this deal?’’
I can look him right in the eye and tell him the truth.
1504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It made whatever it was, 570, and it’s no one’s busi-
ness, because I’m not Metro West.
The parties continued to meet on a regular (weekly) basis
to refine the plan. Curran requested proposals from the var-
ious corporations controlled by DeVito and Murphy:
A. Curran needed proposals to give to Wayne Peter-
son to show to the Labor Board the economic savings
by switching to the company if in fact it was going to
be us and he’d have all the figures in the proposal. This
would all be done for him.
We brought him A & D Trucking, we brought him
DeVito Trucking Company, and then again we brought
some more Suburban and some more Metro West, be-
cause he needed four or five different proposals for
Wayne Peterson to show to the Labor Board why he
chose us.
Curran says, ‘‘No, go there’s no misunderstanding,
we’re going with you guys, we made our mind up. We
need these proposals on different letterheads to show
them this is why we chose you.’’
Murphy admitted in his testimony that the stationery had
to be given to Girardi because ‘‘I don’t know how to write
a proposal like this, I’ve never been out in this position,’’
and that it was needed ‘‘to document Wayne Peterson’s
case.’’
According to DeVito, it was also at this meeting that they
saw the handwritten ‘‘proposal’’ for the first time:
From that point on, after they agreed that they were
going to pay for all that, and there was no problem
with that, Bob Curran handed me a long sheet of white
paper, five or six of them all folded and stapled to-
gether, as an agreement, which said A & D on it.
He said to me, ‘‘This is what you signed.’’
So I took it and I looked at it and I said, I didn’t
sign it. I gave it to Murphy.
So Murphy got it, flipped the pages, started to read
it and he started laughing, and he says to Curran,
‘‘What the fuck is this, where did you get this lan-
guage?’’
So Curran started laughing, he says if you read it
close, a lot of it came out of the Ryder proposals, that’s
where I got the language.
DeVito testified that he laughed at the final paragraph,
which read, ‘‘We guarantee it will be the start of a long last-
ing relationship that will be to our mutual benefit.’’
According to DeVito, Girardi expressly agreed beforehand
to cover all legal fees associated with the arrangement:
A. I said to Buddy Girardi, ‘‘You’re going to have
to pay for all that. You’re going to have to pay to set
these three corporations up and you’re going to have to
pay the bill from the attorney for the setting up of the
ICC, the DPU, and the ABC.’’
He says, ‘‘I have no problem with that.’’
Murphy testified that Attorney Michael Kelley was re-
tained for the incorporation and regulatory work because he
wanted to hold his trial attorney, Richard Chambers, in re-
serve to be used in the expected NLRB trial.
DeVito gave the following account of Girardi’s original
plan of how to terminate the work force:
Girardi calls me up about two days later and he says
to me listen, ‘‘How fast can you move my warehouse
from Leominster to Athol, without anybody knowing
about it.’’
So, explain in detail, how many case there?
We figured out it was about 20–25 trailer loads. He
wanted it done early in the morning, 1 o’clock, 2
o’clock in the morning on a Saturday.
So, when the Union guys were done working on Fri-
day, he would empty out the warehouse in Leominster,
bring it all to Athol and we would start Monday morn-
ing and he said, ‘‘And fuck them guys.’’
And Curran says, ‘‘Well, you should give them a
week’s notice, send a letter. Wayne Petergon’s going to
tell you to do that.
‘‘Fuck them, give them nothing,’’ he says. ‘‘Element
of surprise,’’ he says, ‘‘Fuck them. They’ll all be stand-
ing in Leominster and we’ll be delivering in Athol.’’
Murphy testified that Girardi was dissuaded from this ap-
proach by Curran, and that he participated in a conference
call with Peterson in which Peterson assured Girardi that a
final bargaining session would be scheduled, after which they
would be free to put the plan into effect. During that
evening, Murphy testified the following comments were
made:
Buddy was anxious because his whole life he felt
was in a turmoil. He told me, he spent too much money
and time trying to oust the Union.
A. Wayne turned around and said that he was going
to send out a letter to the lawyers, no, a letter to the
Union saying he was going to give them three more
dates to meet with him.
Q. Okay.
A. And this would be the last time he meets with
them to reach a contract or whatever you call it there,
to reach an agreement.
Buddy was afraid that the Union—‘‘What if the
Union turns around and accepts Murphy’s proposal
within ten percent?’’
Bob Curran turned around and said, ‘‘There’s no
fucking way they can do it. The numbers speak for
themselves, there is no way they can do it.’’
Nobody could live with that.
The handwritten ‘‘proposal’’ from A & D Trucking was
thereafter typed on Suburban stationery, dated March 7,
1989, and bears the signature of Murphy. According to Mur-
phy, Curran personally typed the document on stationery he
had earlier provided and affixed his signature and mailed it
to him. DeVito testified that when the typewritten ‘‘pro-
posal’’ was received he again laughed since they knew it was
not Murphy’s signature.
Between the time of the call to Peterson and the com-
mencement of services on April 14, 1990, Murphy and
Curran met frequently. During this time Murphy requested
‘‘front money,’’ and was given $16,380 to cover the expense
of workers compensation and general liability insurance. The
check was drawn on the account of Regal Eagle and payable
1505GIRARDI DISTRIBUTORS
15 With regard to the following exchange all dates refer to the date
appearing on the document, not the date the document was received.
to Commonwealth. DeVito testified that when Curran hand
delivered the check to him at his Everett, Massachusetts of-
fice, Curran explained why this was done:
Q. Did Curran say why it was a Regal Eagle Check?
A. Because then he says again, ‘‘We couldn’t write
it out of Girardi, because we are expecting the Labor
Board and the Union to come in and audit our books,
and we don’t want to show any payments to anybody
over and above what that contract is going to be for.’’
Q. Who said it to you?
A. Bob Curran.
Q. What did he say?
A. We do not want the Labor Board or the Union
to trace any of these payments to show that we fi-
nanced this operation.
Also during the meetings the identity of the work force
was discussed. Murphy gave the following account:
Girardi said he wanted people that weren’t intimi-
dated easily. . . . He had advertised in a local news-
paper, using the Holiday Inn as an office because of
fear of a strike or whatever, they wanted applications
from people . . . .
He had 50 hat he narrowed it down would be the
best suited for his operation and he would turn them
over to us.
But we told him and he agreed, that we didn’t feel
comfortable with hiring people from the Athol area, be-
cause number one, we had to keep it an arms length
trangaction. Everything was supposed to be top secret.
So, we suggested bringing the people out of Boston
where we could control the atmosphere. He agreed to
it and we said, Okay, when we get to the local help,
he would have a lot of influence as far as who would
and would not be working there.
Q. What was said about the kind of person you were
looking for in this initial period?
A. Well, he just want basic warriors if you really
want to know the truth.
DeVito’s account of the discussion on that point was as
follows:
Girardi said, ‘‘Can you supply me with the 14 peo-
ple from Boston while all this is going on?’’
Q. All what?
A. He at that point said he was having all kinds of
difficulties with the Union again.
He said he was trying to get them to strike and he
was telling me all about the different meetings with the
Labor Board and the Union and it didn’t really mean
too much to me, those were his problems. But he kept
stressing to me that he wanted me to bring people from
Boston. He wanted me to bring people from Boston
that could not be intimidated.
I said, ‘‘Well, what do you mean, I’m not going to
bring any choir boys here.’’
As noted, Girardi had initially told DeVito he wanted to
employ the ‘‘element of surprise’’ in firing his employees
but Peterson told Girardi not to do it that way. Suburban had,
however, already hired a work force which Girardi agreed to
begin paying even before they actually performed any serv-
ice. The first invoice was dated March 23, 1990.
By letter dated15 December 1, 1989, Girardi withdrew its
offer due to ‘‘changed economic circumstances.’’ Harold
Berry on December 5, 1989, requested an explanation, and
Union Counsel Donald MacCalmon on December 6, 1989,
posed additional questions. West Coast on December 13,
1989, explained that the changed economic situation was due
to a shift in the balance of power, and on January 8, 1990,
West Coast informed the Union that it was in the process of
putting together a proposal, and suggested a meeting in late
January or early February.
On March 7, 1990, Peterson informed the Union that it
had been ‘‘approached by several companies offering to per-
form the bargaining unit work and REI work. The letter em-
phasized that no decision had been reached, but enclosed a
‘‘cost evaluation study’’ prepared by BDO Seidman Co.,
which showed the yearly cost savings of $621,347 if the
work was contracted out. The costs included labor, truck
leases, and fuel. The letter contained the following passage:
Although the savings are significant, the Company is
willing to retain the work in-house if the Union is will-
ing to make concessions that would bring distribution
costs within ten percent of the projected savings from
contracting out. By this I mean, if the Union makes
cost concessions of $559,212, the Company will not
contract out the work.
After an exchange of correspondence concerning possible
dates to meet for bargaining, the Union on March 23, 1990,
requested the full BDO Seidman cost study and the subcon-
tracting proposals. On March 26, 1990, West Coast informed
the Union that the study would be provided, and enclosed a
copy of the subcontracting proposal, with the only deletions
being those items pertaining to the subcontractor identity.
The parties again exchanged correspondence concerning
possible dates to engage in bargaining. On April 2, 1990, the
Union requested the name of the subcontractor and a copy
of the contract which was to ‘‘govern the relationship’’ with
the subcontractor.
On April 3, 1990, West Coast informed the Union that the
name of the subcontractor was not relevant or necessary to
the bargaining process, and further stated no contract had
been entered into but that the proposal encompassed the
scope of the work and economic basis of the offer. West
Coast explained the proposal was the source document for
any contract that may be drawn up if a decision to sub-
contract was made.
On April 3, 1990, Peterson confirmed an April 5 bar-
gaining date, and stated that the ‘‘company wished to initiate
subcontracting on April 9, 1990 if the economic justification
was confirmed.’’
As noted earlier, Murphy testified that he was told that Pe-
terson was pressing the Union to meet with Regpondent for
one last bargaining session. The purpose of the meeting was
to give the Union an opportunity to come with 10 percent
1506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the cost set forth (at that point) in the proposal, later to
become the agreement.
At the April 5 bargaining session MacCalmon hand deliv-
ered a letter reiterating the demand for the subcontractor’s
identity and the actual signed contract. Peterson’s notes con-
tain the following description of the exchange at the bar-
gaining table:
U—Info Request
U—We have the right to determine the validity of
the contract and to know the name of the company sub-
contracting.
M—Disagree, Don’t think it is necessary or relevant.
U—Think it is.
M—Don’t have a contract since no decision yet,
gave you proposal with scope of work and economics.
Sufficient.
U—Don’t want to call you a liar but no name on
contract and can’t bargain on behalf of client without
info since Girardi could have get the company himself
or it might be a double breasted operation. Would be
remiss in duties to client to bargain.
M—Disagree, do you have a proposal for us. Not
doublebreasted.
U—Our proposal is for the information. Threshold
issue and have no other proposal.
M—The name has no relevance. The reason we be-
lieve you want it is to try to coerce the company.
Murphy, who as earlier noted was already being paid by
Respondent, had arranged with Peterson to meet with the
management team when they broke for lunch ‘‘to let me
know what the game plan was going to be, how much more
time.’’ As planned, Murphy met with the team. Peterson ex-
pressed surprise that the union negotiators ‘‘walked out’’
after 5 minutes, giving the Company the opportunity to go
forward with the subcontract. At one point Curran excused
himself and the following exchange occurred:
And, Wayne Peterson said to me, ‘‘You’re getting a
contract shortly.’’ And his only hope was, he said,
‘‘My only hope is that you can make money.’’
I told him, I said to him, ‘‘Well, I got a separate
deal here I got the six weeks cost plus, I got the hun-
dred plus 106,’’ Whoa, he hemorrhaged in the chair.
Whoa, he says, ‘‘Stop.’’
Point blank, he said, ‘‘If it’s illegal, I don’t want
nothing to do with it.’’ Point blank, ‘‘I don’t want any-
thing to do with it because I won’t defend something
that’s illegal. If it’s legal,’’ he says, ‘‘You got any side
deals there with Girardi.’’ I understood right from that
point on what kind of an attorney he is.
Q. Have you had dealings with attorneys like that?
A. There’s some you can tell everything to, and
there’s some you can’t. There’s gome that won’t go
into a court and just say what—you know—if he
doesn’t know about it, he’ll defend you.
There’s others you can turn around and talk to like
he’s your brother, you know.
I knew where he was coming from, I knew what was
happening.
On April 11, 1990, Peterson notified the Union that inas-
much as its ‘‘bargaining obligations’’ had been met Re-
spondent intended to subcontract the work as of April 16,
1990. On April 10, 1990, the Union renewed its demand for
the name of the subcontractor and on the same date, Peterson
responded:
I have searched for authority on this but find nothing
on point. The subcontractor has asked that his identity
not be revealed because of the potential for illegal con-
duct, and I feel compelled to honor that request.
The subcontractor is an independent Massachusetts
corporation with no ties to Girardi Distributors. In
short, there is not a scintilla of evidence to suggest that
the subcontractor has been set up in buginess by
Girardi Distributors or that the operations may be dou-
ble breasted.
In the absence of any evidence that the proposed
subcontracting relationship is anything other than an
arms length relationship, your request for the sub-
contractor’s name does not appear to be relevant and
necessary.
Contrary to Peterson’s representation, Murphy testified that
on numerous occasions he told Curran that Suburban Con-
tracting Company could be identified as the subcontractor.
Q. Do you remember any other time you told them,
okay, go ahead and give our name or was that the only
time.?
A. No, I said it right along, kept telling Curran,
‘‘Give’em the name.’’ But I knew Wayne Peterson had
his own methods.
In its statement of position in Case 1–CA–27243, dated
May 35, 1990, West Coast referred to the chronology of cor-
respondence, noting the April 3 response that ‘‘[A]n actual
contract had not been executed since a final decision had not
been reached.’’ It referred also to the April 5 bargaining ses-
sion, and the Company’s position that ‘‘it did not wish to
identify the subcontractor pursuant to the subcontractor’s re-
quest.’’ In summary, West Coast, inter alia, stated:
The Union had the complete factual economic package
upon which to formulate proposals . . . the Company
was not obligated to provide the name of the subcon-
tractor because the subcontractor had specifically re-
quested the Company not do so in fear of union retalia-
tion.
Regarding the ‘‘factual economic package,’’ the statement
continued:
When considering whether information is relevant and
necessary, one must look to the facts of the case. From
the outset, the economic basis of the subcontracting
proposal was provided to the Union, including the cost
of keeping the work in-house and the contractor’s pro-
jected cost.
On the issue of the identity of the subcontractor and the
nature of the relationship, the statement asserted:
1507GIRARDI DISTRIBUTORS
16 White testified that around the first of May 1989, shortly after
subcontracting had begun, he asked Girardi why he wanted to sub-
contract when he had such an advantageous arrangement with the
Union. According to White, Girardi replied that he wanted to get rid
of the Union.
At the bargaining table on April 5 . . . The Company’s
representative indicated to the Union that it was an
arms length relationship and an independent Massachu-
setts corporation and was refusing to provide the name
of the subcontractor, pursuant to the subcontractor’s re-
quest in that it feared union retaliation. In fact, the
Union had no evidence upon which to base its suppo-
sition that a double-breasted operation could have been
established. There is not a scintilla of evidence to estab-
lish that the Union had any reason to suppose this was
the case.
West Coast then went on to state that once it had decided
to subcontract the work it had no ongoing duty to bargain
with the Union, for there were no longer any employees for
whom the Union would serve as bargaining agent. It asserted
that the bargaining throughout was in good faith, as dem-
onstrated by its offer as early as March 7 to provide a ‘‘sev-
erance package.’’ Regarding regard to its action in with-
drawing the implemented ‘‘offer,’’ West Coast stated:
The Company implemented its final offer on September
4, 1989, after reaching impasse with the Union. The
implementation was challenged by the Union and cer-
tified as appropriate by the Board. Some three months
after the Company’s implementation of its final offer,
the Company sent a letter to the Union withdrawing its
offer. This withdrawal was based on changed economic
circumstances. It is important to note that neither party
had made any proposals during the three month interim
period between September and December, 1989. The
Company indicated that, based on the changed eco-
nomic situation, i.e., the Company was in a stronger
position in December, it was considering ‘‘more effi-
cient options for delivering our product’’ and was will-
ing to meet with the Union.
After complaint issued, West Coast submitted another
statement of position, this time directed to the General Coun-
sel. In it West Coast ‘‘expressed concern’’ about both the de-
cision itself, and ‘‘the coercion inherent in getting a trial date
six months in the future.’’ The argument section began by
restating its earlier position that the name of the subcon-
tractor was not necessary for bargaining, reiterated that there
was an ‘‘arms length’’ relationship. (‘‘If the Company was
guilty of double breasting, the Union had recourse by filing
an unfair labor practice charge. The NLRB would conduct a
thorough investigation on and determine the merits of the
charge.’’) West Coast also set forth the ‘‘dire consequences
to the Employer of a make whole remedy . . . . [T]he work
structure of the Company was substantially altered as a result
of the subcontracting, and at this point it would be unduly
difficult, if not impossible to reconstruct the operation as it
was prior to subcontracting . . . [T]rucks used to transport
the company’s product have been turned over to the subcon-
tractor and are no longer the Girardi Distributors vehicles.’’
Finally the case was characterized: ‘‘The issue in his case is
very narrow and the facts are not in dispute,’’ and urged an
‘‘expedited hearing date.’’16
A ‘‘Contract Carrier Agreement’’ (the agreement) was pre-
pared by Respondent’s counsel’s law firm and signed by
Murphy and Curran. The economic terms of the agreement
are those contained in the proposal. Murphy testified that he
proposed various clauses during his numerous meetings with
Curran and there were discussions concerning the number of
men required for beer distribution and the number of trucks
which would be used. According to Murphy his initial inter-
est in the terms which would be included in the contract
waned as time went on; the only substantial question he
raised when presented with the document he eventually
signed concerned the liquidated damages and bonding
clauses. Once again the reason for this lack of concern in the
terms of the arrangement are described by Murphy:
A. I was going to get the $10,960.62, per week, each
and every week, and whatever I billed for overages. In
other words, if I had extra help.
You see, everything at the beginning was based on
six trucks, two men per truck and two warehouse per-
sonnel.
Curran said, ‘‘You’re right, this isn’t a bus company
where you can turn around and say there’s X amount
of stops, there’s this—we’ll go in for the first six
weeks, let’s do the first six weeks, let’s get that over
with. We’ll go in at cost plus.
After that, we’ll figure out what’s actually what. If
we need to do this, if we need to do that, we’re not
sure if the Regal Eagle pick-ups on the truck are going
to work . . . .
A. That was nothing—I hate to say it, I don’t know
if there’s any criminal action come out of it, and don’t
want a party of it, that’s why I was dead set against
coming here. But this contract was nothing but a fraud
to get the Union out. And I went along with it.
DeVito testified that he signed the agreement without
being fully aware of its contents:
A. In the third meeting, I did sign the contract, be-
cause Bob Curran put it in front of me, he said, will
you sign this?
And I looked him in the eye, that’s when I brought
up the point about the blank—the two blank lines. And
I says, to him, I looked him right in the eye, and says,
‘‘Do you want me to sign this contract, do you need
me to sign this contract?’’
He said, ‘‘Yes.’’
I said, ‘‘Then I’ll sign it.’’
A. I asked Girardi about the fuel, I asked him, he
says, ‘‘Fuck it, they’ll never figure it out, that’s a
bonus, just gas up at the pumps out there.’’
Q. Well, why would you sign a contract that doesn’t
represent the arrangement.?
A. Because I believed him.
Under the ‘‘side deal,’’ the weekly billing of $10,960.62
was supplemented by Metro West billings for the difference
between allotted payroll and actual payroll, as well as other
associated expenses. Barnett at one point prepared a break-
1508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
down of these overages and computed the total owed as of
May 18, l990. A check dated May 25, l990, was drawn upon
Regal Eagle for $26,552 and was made payable to Metro
West.
On April 14, l990, Suburban tractor-trailers moved the en-
tire contents of the Leominster warehouse to Athol. The dis-
placed union men appeared frequently at the Athol facility
under the watchful eye of employees from Respondent’s con-
tract security personnel from Special Response. According to
Murphy, he implored Curran to dismiss Special Response,
because they provoked the men on the picket line, but the
Company had other reasons for their presence:
And I told him, get rid of them, me and my people
do not need protection. I’m telling you right now, they
won’t start no shit at the gate.
He said, ‘‘Well, let’s try it, Buddy wants them
here.’’ He agreed, Buddy wanted to make a statement
and the statement was—Buddy really wanted to see vi-
olence. The guy really wanted—I’m dead serious from
day one, he wanted us up there just to kick ass, and
that’s it. Leave a statement, Buddy’s the king of the
hill. And that’s the way it was always presented to me.
And, he wanted to be king of the mountain and he was,
except it didn’t go his way. But when the shit hit the
fan, he took off.
The work force of ‘‘warriors’’ assembled by DeVito and
Murphy may have initially pleased Messengers Curran and
Girardi, but the infatuation was short lived:
A. Oh, they were getting weeded out within 3 weeks
to the end of 2 months, they were all gone I believe.
Q. How did they get weeded out?
A. Well, one instance right off the top of my head
was Bob Curran didn’t like Fox, John Fox, because he
had a pony tail and an earring.
He said my men had more jewelry on them than all
the girls in Athol.
Maroni continued to work for Girardi after Suburban took
over beer distribution. Maroni testified that after Suburban
took over, King said to him, ‘‘We’ve busted the union and
now we can get back on track.’’ Maroni also recalled that
Curran expressed relief ‘‘[N]ow that we’re done with the
union.’’
Murphy testified that Barnett counseled against wearing
shirts bearing the Girardi logo, because it would appear that
theirs was not an arm’s-length transaction:
Well, you’re supposed to be the contractor and it
looks like you’re an employee.
And my remark to him was, ‘‘Well, we are.’’
After a period of time Curran informed Maroni that he
was being laid off from Girardi, but was to start work imme-
diately for Suburban:
On Monday morning, I reported to work for Suburban,
and I was doing the same thing that I had done on Fri-
day. It was like I didn’t get laid off, only that now my
check is going to come from a different place.
During the period of his employment with Suburban,
Maroni served as assistant warehouse manager, in which ca-
pacity he worked with the same management people as he
had during his employment with Respondent, in setting up
loads and routing the trucks. Murphy testified that he was
impressed with Maroni’s work habits and devotion to the
Company, but that Girardi disliked him because Maroni’s
grandfather sold Miller beer in a bar located across the street
from the Athol facility. Although Murphy resisted Girardi’s
suggestion that he discharge Maroni, he did agree to assign
him to deliveries. Maroni also testified that he was put back
on the delivery truck because Girardi did not want him to
have keys to the warehouse. Maroni, unhappy with the as-
signment, thereafter suffered a back injury and had to stop
working.
Murphy testified that after beginning work for Respondent
he had another exchange with Peterson.
Any problems?
I said, ‘‘Just the usual stuff, you know the guys on
the picket line, nothing I couldn’t handle.’’
And, again he said to me, that his only concern with
me was that I could make money.
And I tried to tell him again at that time about it [the
side deal] and he stopped me again. He said, ‘‘I don’t
want to hear nothing, that’s between you and Girardi.’’
And I said, ‘‘Okay, fine.’’
Murphy testified that after performing Regal Eagle work,
Curran raised the possibility of also taking over the Green-
field operations because ‘‘Curran was also afraid . . . they
were going to jump to the Union.’’ Girardi also referred to
‘‘Union problems up there [in Pittsfield], years ago and he
bought out the Union and Kenny White was the bagman.’’
White was terminated on May 15, and given a severance
package. Murphy testified that he was present when Girardi
proposed outright firing without the severance pay. The fol-
lowing exchange ensued in that regard:
Curran says, you can’t just do that, he says, ‘‘You’re
right. What if he runs to the Union?
He said, ‘‘The 25 grand, the Company car will hold
him back, we’ll give it to him in severance pay.’’
So, then he turned around and said, ‘‘We’ll give it
to him over a period of time. This way here, we always
have his hooks. If he turns around and runs to the
Union or runs to anybody, we can always stop paying
him.’’
In its response to an age discrimination case filed with the
Massachusetts Commission Against Discrimination, Re-
spondent asserted that it had offered White another position
(truckdriver), but White ‘‘opted for a generous severance
package,’’ including use of a Chevrolet Blazer and mainte-
nance of his benefits package for 30 weeks. His severance
‘‘package’’ therefore was to end on or about December 10,
1990.
As noted, the oral agreement was that Suburban would op-
erate on a cost plus basis for 6 weeks and then ‘‘analyze the
whole situation.’’ However, in late April Girardi went on va-
cation, and upon his return Curran went on vacation. Then
the ‘‘numbers man’’ Barnett went on vacation. Murphy testi-
fied that between April and August, Suburban billed the con-
1509GIRARDI DISTRIBUTORS
tractual weekly $10,960.62, and all ‘‘overages’’ were billed
through Metro West:
A. Because we, in the event that the . . . Labor
Board or the Union could turn around in the future, get
a subpoena to subpoena the records of Suburban, we
could honestly show that that’s all the money they gave
us, each and every week was $10,960.62.
I wasn’t going to make—see, were there, I had a
basic, we had a hand shake deal . . . I had the contract,
which I was going to bill for. Anything over above that
contract, I’d bill them through Metro West, at cost, I
wasn’t going to make a quarter on it, not a penny, be-
cause I knew that’s what we were going to get out of
this deal. We were going to get—because we weren’t
going to pay the benefit, that 401K program or what-
ever it was. We weren’t going to pay that, so we were
going to come out, me and Peter, whacking up
$206,000 and change.
All labor above the basic six person crew, whether they
were engaged in constructing the warehouse office or as-
signed to Regal Eagle, was billed, with payroll records at-
tached showing the name and hours worked for each indi-
vidual.
In late August, a meeting was held between messengers
Girardi, Curran, Barnett, King, DeVito, and Murphy to dis-
cuss the outstanding bills for the overages. The meeting did
not go well. Before the meeting the outstanding Metro West
bills were totaled and sent to Girardi. When Girardi was
shown the bill for $99,439.37, he ‘‘flew off the handle’’ ac-
cording to DeVito. According to Murphy, Girardi then read
from a ‘‘hit list’’ of deficiencies in the operation, which infu-
riated both DeVito and Murphy, since Girardi had been com-
pletely absent from the operation. A physical confrontation
was averted when Girardi left the room. When he returned,
DeVito accused him of getting amnesia, and the meeting
again ended on a strained note. On the way back to their
Everett office, DeVito pointed out to Murphy that it had per-
haps been unwise to simply present Girardi with such a large
bill. Murphy said they had better go back and read the agree-
ment because ‘‘I think they are going to hold us to it.’’
DeVito spoke by telephone to Girardi to arrange another
meeting. During their conversation, DeVito expressed con-
cern about the method of payment for the $106,000, since
Girardi had said ‘‘he couldn’t have it on his books.’’ until
after the NLRB hearing, then scheduled for November 17.
DeVito proposed that Respondent pay off their indebtedness
on a house they had purchased in the Athol area. Since that
was not acceptable, DeVito suggested that the amount be set
off again the approximately $110,000 charges for the Ryder
Trucks (which under the agreement were to have been trans-
ferred to Suburban). Girardi liked the idea since he would
not have to cut a check.
The parties then met again, this time without Girardi
present. Barnett presented a spread sheet listing what Re-
spondent was willing to pay, which included a set off for the
Ryder trucks. DeVito exclaimed: ‘‘Wait a minute. I already
discussed this with Buddy.’’ Curran replied, ‘‘Well, Buddy’s
not here.’’ DeVito became angry, and he expressed his feel-
ing in not uncertain terms. DeVito then demanded the pay-
ment of the undisputed amount, which Barnett then summa-
rized on a sheet of paper. While Barnett went downstairs to
prepare a check for the $35,658.64 which Respondent agreed
it owed, DeVito retrieved the summary from the wastebasket.
The total includes $22,405.36 undisputed overages for the
labor, and attorney’s fees for Kelly’s services.
DeVito unsuccessfully tried to contact Girardi after the
meeting, and finally spoke to Curran:
I said, Look, Bob, how about the difference in the
check, I want the money. He says to me, I don’t know
what you’re talking about, none of that is in the con-
tract.
I said, none of the other stuff that you just gave me
the check for was in the contract either, but yet you
still wrote a check. And that’s the way we left it.
Since Barnett, who prepared the spread sheet has not testi-
fied in the case, it is not entirely clear what the numbers rep-
resent. Schedule l, ‘‘Summary of Labor and Fringes Suc-
ceeded’’: and ‘‘Regal Eagle Direct Payroll,’’ which would
indicate that Girardi was not contesting the entitlement to
these categories, only the amounts. Murphy testified that
Barnett revised the percentages charged for fringes. Schedule
5 (bottom of page) referred to a ‘‘new weekly payment’’ of
$12,301.61.
DeVito and Murphy decided that if Girardi was going to
follow the letter of the agreement, they would too, and would
‘‘deliver the beer and that’s it.’’ Michael Cafferty, who was
in charge for Suburban, was informed that he was to tell
Curran that no further Regal Eagle help would be supplied.
A disagreement between Cafferty and Curran ensued, and
DeVito was called a number of times, during one of which
he heard Curran yell, ‘‘You tell that Ginny [sic] bastard . . .
that I won’t pay him he’ll never get another fucking check
out of me.’’ DeVito instructed Cafferty to close up the ware-
house, send the men home and return to Everett.
Dugay testified that on the final day it was he who gave
the orders to Cafferty. Cafferty told Dugay shortly thereafter
that he would not perform the requested Regal Eagle work
or pick up empties. Dugay conveyed this information to
Curran. Dugay then saw Cafferty send the men home. As the
men left the premises they asked Dugay if they would have
any more work, and he informed them that he did not know.
Dugay locked up the warehouse and then left the facility to
perform his sales work.
4. The new subcontractor
When Dugay returned to the Athol facility later in the day,
he was asked by Curran if he would like to run the beer
warehouse. Since he had already been doing this work on a
part-time basis, he accepted the assignment. He was told that
he would be reporting to Curran, would be working for Erin,
and would have authority to hire a work force. He was also
told by Curran what the employees would be paid: $9 per
hour for helpers, $11 per hour for drivers, and no benefits.
That evening Dugay called the former Suburban employ-
ees and told them to report to work the next day. They began
work without completing employment applications or other
paperwork. Dugay testified that other than his replacing
Cafferty, there was absolutely no change in the operations
between Suburban operations on Monday and Erin on Tues-
day—the same men used the same trucks to deliver the same
1510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Ducane Heating Corp., 273 NLRB 1389, 1147 (1985).
18 Redd-I, Inc., 290 NLRB 1115 (1988).
19 Again, for purposes of this decision on the limitations question,
General Counsel’s presentation of facts is accepted as the operative
facts, with the caveat that I am not bound by these facts in the event
this proceeding is remanded for the presentation of Respondent’s de-
fense to the allegations of the consolidated complaint.
20 Though it may be argued that incentive wage proposals are
common in the beverage industry, the level of incentive in Respond-
ent’s proposal appears very low. Indeed the expert who aided Re-
spondent in preparing this proposal recommended an incentive rate
per case more than twice as high as the one contained in Respond-
ent’s final offer. Further, if Respondent, for nondiscriminatory rea-
sons, wanted to institute an incentive plan in its operation, it could
have chosen to institute such a plan in its nonunion operation in
Pittsfield without the necessity for bargaining. It could also have of-
fered the prospective strike replacements such a compensation plan,
but instead offered them an hourly wage. One aspect of the incentive
plan that did not escape the Union when it was proposed, but evi-
dently did escape the Board’s scrutiny at that time, is that it does
not address the highly seasonal nature of Respondent’s business. The
bulk of the cases sold and delivered by Respondent are in the warm
weather months of the year. During that time, extra, casual delivery
personnel are hired, and extra trucks put on. Thus the unit members
would not get the extra money that one would expect them to get
in those months. In the cold weather months, the case deliveries are
substantially down and the incentive plan just would not provide
anywhere near the level of income the drivers were enjoying under
their existing hourly pay system.
products, and the invoice and order system remained as be-
fore.
Dugay’s workday consisted of dispatching the Erin em-
ployees between 6 and 8 a.m., then performing his draught
beer and sales work for Respondent. When he returned to the
facility in the afternoon, he devoted the late afternoon hours
again to Erin work such as receiving the orders and getting
up the loads Dugay testified that he was unaware of the ex-
istence of Quabbin until he received his first paycheck
(which was handed to him by Barnett) which bore its name.
Barnett explained to Dugay that the Quabbin check was com-
pensation for his work for Erin.
C. Is the Consolidated Complaint Barred by the
Limitations Provisions Contained in Section 10(b)
of the Act?
As noted in the statement of facts, the Union filed a num-
ber of charges between May and September 1989 alleging,
inter alia, violations of Section 8(a)(1), (3), and (5). Almost
from the start of bargaining, the Union contended that
Girardi was engaged in bad-faith bargaining. It filed its first
unfair labor practice charge (Case 1–CA–26494) on May 19,
1989, asserting that Girardi had violated Section 8(a)(1), (3),
and (5) of the Act. The Regional Director dismissed this
charge. On August 4, 1989, the Union filed a second unfair
labor practice charge (Case 1–CA–26561) again asserting
that Girardi was engaged in unlawful bargaining in violation
of Section 8(a)(1), (3), and (5) of the Act. This charge was
also dismissed by the Region. On September 8, 1989, the
Union filed a third charge (1–CA–26660) asserting that
Girardi had violated Section 8(a)(1), (3), and (5) of the Act.
This charge also contain an independent 8(a)(1) violation al-
leging that the certain statements made by Kenneth White
were unlawful. This part of the charge was the subject of a
settlement agreement approved by the Regional Director on
February 22, 1990. The Regional Director dismissed the re-
maining allegations of the charge, including all portions of
the charge dealing with Girardi’s alleged unfair bargaining.
An appeal to this dismissal was denied on January 24, 1990.
On this date, there was no pending unfair labor practice
charge against Girardi alleging that the Company was en-
gaged in unlawful bargaining.
As noted earlier, the Regional Director on March 15,
1991, issued a consolidated complaint against Girardi based
on the three dismissed charges. The consolidated complaint
alleged, inter alia, that Girardi had not bargained in good
faith and that a bona fide impasse had not existed as of the
date of implementation of Girardi’s final offer, September 4,
1989. The Respondent has objected to the resurrection of the
charges on the grounds that they are barred by the limitations
provisions of Section 10(b).
Both Respondent and General Counsel agree that the
charges are subject to the applicable limitations provision
and cannot be resurrected absent special circumstances in
which Respondent fraudulently concealed operative facts un-
derlying the alleged violation,17 or unless the charges are
closely related to an existing, timely filed charge.18 Each of
these theories will be discussed in detail. First, however, it
should be determined if General Counsel has made a prima
facie case in support of the allegations of the consolidated
complaint.
1. Has General Counsel made a prima facie case in
support of the alleged violations of Section 8(a)(1),
(3), and (5)?
In general terms the consolidated complaint alleges that
Girardi bargained in bad faith and unlawfully implemented
its ‘‘final offer’’ before impasse. In support of these allega-
tions, General Counsel submitted evidence19 that Respond-
ent’s owner, Buddy Girardi, had expressed from the outset
of his taking over management of Respondent an intent to
get rid of the Union. This desire and intent was expressed
to Maroni by Girardi and other management personnel prior
to and during the 1989 negotiations. Respondent had also
previously tried to take bargaining unit work away from the
unit, which resulted in an arbitrator finding on July 12, 1988,
that Respondent’s action attacks the integrity of the bar-
gaining unit and was not made in good faith.
Respondent hired as its bargaining agent for the negotia-
tions a firm, West Coast, that had a nationwide reputation
with the Union as a ‘‘union buster.’’ General Counsel has
shown that among Respondent’s bargaining proposals were a
change from the Union’s health and retirement programs to
ones provided through the Company, and an incentive wage
proposal that resulted in significantly lower wages for many
of the bargaining unit members than they enjoyed under the
expired contract, and lower than the wages paid to Respond-
ent’s nonunion personnel performing similar tasks.20 Though
the testimony of White indicates that Respondent was seek-
ing a contract that it ‘‘could live with,’’ and not necessarily
the dissolution of the bargaining unit, I believe that the facts
adduced to date show it wanted more than just a contract it
could live with. Evidence of this can be found in Respond-
ent’s withdrawal of its implemented final offer, certainly a
situation Respondent should have been able to live with as
1511GIRARDI DISTRIBUTORS
21 Though the withdrawal of the implemented offer took place in
December 1989, after charges had been filed, this act would cer-
tainly have been part of the evidence presented in support of a com-
plaint had one been issued on the Union’s charges.
22 I disagree with the General Counsel’s position on brief that it
has been established that Respondent made the proposals with the
clear intent of provoking a strike.
23 General Counsel contends that the alleged fraudulent conceal-
ment is applicable to the Board as well as to the charging party, cit-
ing Kanakis Co., 293 NLRB 435 (1989). Even though that appears
to be the law, it does not make any difference in the context of this
case as nothing was shown to have been affirmatively concealed by
the Respondent from the Board or the Union. During the timeframe
when the dismissed charges were being considered by the Board,
Respondent submitted position papers in support of an unfair labor
practice charge it filed against the Union alleging bad-faith bar-
gaining on the part of the Union. These position papers do affirma-
tively state that Girardi was engaged in good-faith bargaining. How-
ever, these exclamatory statements, by themselves, do not constitute
fraudulent concealment. ‘‘The mere fact that a party makes exclama-
tory representations does not, by itself, constitute fraudulent conceal-
ment or serve to toll the 10(b) period.’’ O’Neill Ltd., 288 NLRB
1353 fn. 10 (1988), citing with approval the judge’s analysis in Al
Bryant, Inc., 260 NLRB 128, 133–135 (1982).
24 See Garrett Railroad Car, 275 NLRB 1032 (1985); Strawsine
Mfg. Co., 288 NLRB 553 (1986); Kanakis Co., supra; Brown &
Sharp Mfg. Co., 299 NLRB 586 (1990); O’Neill, supra.
the final offer contained just what Respondent said it set out
to obtain.21
General Counsel has shown that management expected its
proposals to provoke a strike by the bargaining unit and pre-
pared for a strike prior to negotiations beginning.22 After
only a few bargaining sessions, Respondent advertised for
and interviewed prospective permanent replacements for the
union employees. Though, as noted often by General Coun-
sel, Respondent did show much movement and left a ‘‘paper
trail’’ during negotiations, it did not make any significant
movement on the major issues of health and retirement bene-
fits and wages. After negotiations stalled, and it can be
credibly argued they stalled because the involved employees
did not want to take a significant cut in pay absent any eco-
nomic necessity on the part of the Employer, Respondent im-
plemented its ‘‘final offer,’’ which cut the pay of all but the
most senior of the bargaining unit members. This imple-
mented wage rate was lower in almost all cases than the
wages offered prospective permanent strike replacements,
and lower than the wage rate of Respondent’s nonunion per-
sonnel at Pittsfield.
Again, according to General Counsel’s evidence, manage-
ment expected implementation to provoke a strike and result
in the replacement of the bargaining unit with nonunion per-
sonnel. The expected strike did not occur, but complaints
about the wages and other differences in treatment of Re-
spondent’s Union versus nonunion employees were voiced to
Ken White. He, acting on information given him by Girardi,
advised the men they could have the benefits afforded the
nonunion personnel if they decertified.
In a case where surface or bad-faith bargaining is alleged,
the Respondent’s intent is paramount. An employer is obli-
gated to enter into bargaining with an intent to reach agree-
ment. One must look at all the actions taken by the Respond-
ent to determine whether reaching an agreement or ‘‘busting
the Union’’ was its true intent. Given the expressed intent of
Respondent to rid itself of the Union, its proposal of a wage
that discriminated against union employees as compared with
nonunion employees and the implementation of that discrimi-
natory wage rate without any economic need being shown,
the preparation to hire permanent replacements in case of a
strike, the expressed belief that the bargaining proposals or
implementation of those proposals would provoke a strike,
and the clear message from White that wages and benefits
equivalent to Respondent’s nonunion employees could be ob-
tained through decertification, I believe that General Counsel
has made a prima facie case that Respondent’s bargaining
was in bad faith, impasse had not been reached, that imple-
mentation of the final offer was unlawful, and the wage re-
duction and constructive digcharges which followed imple-
mentation were similarly unlawful.
Having found that General Counsel has made a prima
facie case with respect to the allegations of the consolidated
complaint, it is necessary to explore the two theories ad-
vanced by him in support of his position that limitations do
not bar consideration of these allegations.
2. Did Respondent fraudulently conceal operative facts
regarding the dismissed charges?
The Board recently expanded the application of the doc-
trine of fraudulent concealment as a basis for reinstating pre-
viously dismissed charges in Ducane, supra, where it held
that a dismissed charge may be reinstated when a Respond-
ent fraudulently conceals the operative facts underlying the
alleged violation. Where there is fraudulent concealment, the
limitations period begins to run when the charging party
knows or should have known of the concealed facts.23
General Counsel concedes that Respondent did not affirm-
atively conceal any operative facts relating to the dismissed
charges. In virtually all the cases decided subsequent to
Ducane, wherein the Board has found fraudulent conceal-
ment, there has been a finding that the Respondent did af-
firmatively conceal operative facts.24 Recognizing that such
a situation does not exist in this proceeding, General Counsel
advances the theory that Board has adopted or should adopt
another type of fraudulent concealment, that involving ‘‘self
concealing’’ fraudulent concealment. He cites as the leading
case on this theory Hobson v. Wilson, 737 F.2d 1 (D.C. Cir.
1984), in which the court applied this theory to an action
brought under a civil rights conspiracy statute. In explaining
the self concealing test, the court wrote that ‘‘a defendant
who contrives to commit a wrong in such a manner as to
conceal the very existence of a cause of action, and who
misleads plaintiff in the course of committing the wrong may
be found to have concealed the wrong.’’ 737 F.2d at 33. The
court stated that to establish a self concealing wrong ‘‘the
defendant must engage in some misleading, deceptive or oth-
erwise contrived action or scheme, in the course of commit-
ting the wrong that is designed to mask the existence of a
cause of action.’’ 737 F.2d at 34. The court further explained
that the deception may be as simple as a single lie or as
complex as [a scheme] so long as the defendant conceals
‘‘not only their involvement, but the very conduct itself.’’
737 F.2d at 34–35 (quoting Richards v. Mileski, 662 F.2d 65,
70 (D.C. Cir. 1981). The Hobson court compared the self-
concealing wrong to an antique dealer who knowingly sells
a fake vase as a real antique. 737 F.2d at 34 fn. 102. In this
1512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Burgess Construction, 227 NLRB 765 (1977), and Strawsine
Mfg. Co., 280 NLRB 553 (1986).
26 On brief, General Counsel points to two statements made by Re-
spondent’s representative in position papers submitted in connection
with Case 1–CA–26394 which he contends are misrepresentations.
First, in part of its response to the legality of advertising for strike
replacements, Respondent submitted to the Board:
‘‘Lastly, it is not a violation of the law for the Company to take
appropriate precautions in the event a strike were to take place—
such an action by the Employer is a legitimate form of self-help.
The Union has repeatedly told the Company at the table that it
would report to all means at its disposal to exact concessions and
thus the Employer is entitled to prepare for such exigencies.’’
I cannot determine whether this is or is not a misrepresentation.
General Counsel points out that strike replacement plans were made
well in advance of the first negotiation session. I agree that West
Coast gave Respondent a strike preparation manual in advance of
negotiations. However, negotiations began in April 1989 and adver-
tisements for strike replacements were not placed until sometime in
May. Whether the decision to place the ads at that time was trig-
gered by something said at the table or not is not developed in this
record.
General Counsel also argues that in the same position paper, Re-
spondent, in support of its position that it was bargaining in good
faith, points out that it entered into a side deal with the Union not
to subcontract unit work. He points to the withdrawal of Respondent
from that deal in December 1989 to assert that this was a misrepre-
sentation. It was not a misrepresentation at the time made, and the
withdrawal of the subcontracting offer in December did not result in
the Union filing new charges or the Region reconsidering its deci-
regard, the Court noted that that type of deception affects the
behavior of another and the change in behavior allows the
would be offender to carry out the scheme. Consequently,
the statute would not be tolled until the buyer discovers or
should have discovered the deception.
General Counsel relies on the Board’s decision in O’Neill,
supra, for the proposition the the Board has previously adopt-
ed this test. In that case, the Board upheld the judge’s find-
ing that the respondents engaged in an elaborate scheme de-
signed to evade a lawful contractual obligation with em-
ployee bargaining representatives and the duty to bargain
under the Act. As part of this scheme, the O’Neill entities
purported to close a meat plant and then reopen it through
apparently nonrelated corporations that were, in fact,
‘‘fronts’’ controlled by the O’Neill entities. The Respond-
ent’s entire scheme was marked by efforts at concealing the
operative facts regarding the closing and reopening of the
meat plant.
The union involved filed charges over the respondents’
conduct alleging that it was attempting to avoid its nego-
tiated agreement with it by ‘‘engaging in a series of devises
or subterfuges to claim separate entity status.’’ 288 NLRB at
1389. The Regional Director for Region 32 dismissed the
union’s charges, having concluded that there was insufficient
evidence of communality of ownership among the various
companies to support a finding that the respondent was at-
tempting to avoid its agreement with the union by the estab-
lishment of alter ego companies. The Regional Director’s de-
cision to dismiss the charge was subsequently upheld on ap-
peal. Thereafter, ‘‘newly discovered evidence’’ came to the
Regional Director’s attention causing him to reinstate the
earlier dismissed charges and issue a complaint. The new
evidence generally consisted of statements from former su-
pervisors or managers of the respondent and a long-term cus-
tomer. One former agent of the respondent described remarks
the respondent’s president, O’Neill, had with his labor rela-
tions consultant about a plan to get rid of the Union, assur-
ances he (the agent) received of future employment, assign-
ments he was given prior to the resumption of operation, in-
structions O’Neill gave concerning operational details of the
plant after it resumed operations and the involvement of the
respondents’ officials in the other plants. Another former of-
ficial testified to remarks O’Neill made about getting rid of
the union, outlined the involvement of officials in estab-
lishing one of the four companies and the lack of involve-
ment the alleged owner of that company had in its manage-
ment, described the preparation of sham corporate papers,
described meetings O’Neill had with supervisors of the var-
ious companies wherein he gave detailed operating instruc-
tions, described O’Neill’s control of finances in the resumed
operations and asserted that O’Neill ran the whole show. Fi-
nally, a long-term customer of respondent offered testimony
to the effect that O’Neill stated to him that one day he
(O’Neill) would tell the customer the slick way he got rid
of the union by getting up new paper entities. The customer
further testified as to the way O’Neill held himself out as ex-
ecutive in charge of the newly established companies.
The Board affirmed the judge’s conclusion that the re-
spondent’s scheme to evade its bargaining obligation with
the union was fraudulently concealed warranting the tolling
of the 10(b) period until the union learned of the plot. The
judge concluded ‘‘that . . . O’Neill’s scheme of closing the
meat plant and resuming its operation utilizing . . . fronts
for his dominant involvement in the continuation of this meat
processing operation, when coupled with the misrepresenta-
tions concerning the nature of the resumed operation during
the effects bargaining—all for the object of evading a lawful
contract obligation with the employee bargaining representa-
tives and the duty to bargain under the Act constituted a
fraudulent plot of the self-concealing variety within the
meaning of Federal law concerning the tolling of statutes of
limitations.’’ Citing, inter alia, Hobson v. Wilson, supra.
The Board also stated at 1355, ‘‘Further, in finding fraudu-
lent concealment, we also rely, as did the judge, on the mis-
representations made by Respondents to [the union] during
the effects bargaining.’’ During the bargaining Respondents’
attorney was asked if O’Neill was going out of the meat
packing business with no intention of returning, and re-
sponded affirmatively. Respondents’ attorney was asked if
the meat plant was going to be leased and was told that they
were trying to work out a lease when in fact a lease had
been previously signed. Finally, the Board stated, ‘‘Here, as
in Burgess and Strawsine,25 the respondents’ misrepresenta-
tions served to mislead [the union] regarding the closing and
reopening of the meat plant.
Thus, the Board, even in O’Neill, relies on some affirma-
tive act, the attorneys’ affirmative misrepresentation con-
cerning operative facts, to find fraudulent concealment. Al-
though I find the facts and holding of the Board in O’Neill
to be pertinent to the enlargement of the complaint in 1–CA–
27243 (the subcontracting issue), I do not believe it or the
courts holding in Hobson v. Wilson are dispositive of the
question of the consolidated complaint.
First, it has not been shown that there were affirmative is
representations made (exculpatory statements aside) with re-
spect to the dismissed charges,26 and second, there does not
1513GIRARDI DISTRIBUTORS
sion to dismiss the earlier charges, which were not then barred by
limitations.
appear from the evidence to have been a self-concealing
scheme in place until the decision to subcontract was made
in December 1989. If I agreed with the position of the Gen-
eral Counsel, virtually every surface bargaining case would
be potentially exempt from the the strictures of Section
10(b), needing only some newly discovered evidence of in-
tent to surface. From my experience, virtually all surface bar-
gaining cases turn on intent, and that intent is almost always
determined from looking at the totality of Respondent’s ob-
servable conduct. Never have I gone to trial on such a case
when there was a ‘‘smoking gun’’ such as as admission from
a principal of the respondent that its intent was thwart the
bargaining process.
What has General Counsel newly discovered in the evi-
dence offered by the witnesses in this proceeding that was
not known or not reasonably discoverable at the time the
original charges were dismissed. He argues that the bar-
gaining, declaration of impasse and implementation of the
final offer, withdrawal of that offer, and subcontracting were
all part of an involved scheme to get rid of the Union. I can-
not find that the evidence supports such a scheme theory.
There is no proof, new or otherwise, that Respondent had
some master plan of contingencies that would be triggered by
unfolding events. No one testified that if bargaining failed to
provoke a strike, the Company would implement its last
offer; if implementation failed to provoke a strike or decerti-
fication, then the final offer would be withdrawn and the bar-
gaining unit work subcontracted out. All the evidence reflects
is Girardi’s ongoing desire to get rid of or ‘‘bust the union.’’
The matter of Girardi’s desire to rid his Company of the
Union was a matter of common knowledge among the em-
ployees from the minute he took over the Company. Chasson
was a union member and Girardi expressly told him of his
feelings about the Union. Thus this important matter of intent
was known to the Union and evidence of it was readily
available at the time the decision to dismiss was made. In-
deed, the Board had available at that time a sworn statement
of a bargaining unit member given in relation to White’s un-
lawful statements, that says the Company was seeking to get
rid of the Union. This statement was evidently not further in-
vestigated. If it had been, there is no doubt in my mind that
evidence such as that presented by Maroni could have been
developed as management officials were freely discussing
their intention to get rid of the Union with apparently anyone
who would listen.
The intent of the Company going into negotiations is no
more clear today than it was in the fall of 1989. White testi-
fied at one point that the Company hired West Coast because
of its success in achieving concessions from the Teamsters
Union. He testified that the Company planned its proposals
to seek significant concessions from the Union and reach a
‘‘contract we could live with.’’ Later in his testimony, he
said that Girardi wanted to force the Union to strike go he
could permanently replace the union employees. However, he
did not testify that this was a goal of negotiations or the in-
tent of any bargaining proposal.
There was significant evidence available in the fall of
1989 which would lead one to believe that forcing a strike
was Respondent’s intention. It had obtained a strike manual
from West Coast to prepare itself for a strike. This manual
was not hidden from the Board in 1989; however, evidently
no one at that time asked for Respondent’s documents on the
subject of strike preparation. The Company advertised for
and interviewed replacement workers at the outset of nego-
tiations. It did this publicly. It entered into talks with a secu-
rity company. No effort was made to hide this information.
It offered the potential strike replacements higher wages
than it was offering the vast majority of its union employees
in negotiations. This fact was pointed out to the Board by
the Union on several occasions, including its appeals of the
Region’s dismissals of its charges.
DeVito and Murphy both testified about conversations
with Girardi wherein he admitted he was trying to get the
Union to strike. However, the only testimony on this subject
specific as to date or method is that of DeVito who testified
that Girardi said he had been unsuccessfully trying to get the
Union to strike for 2 months. This would have placed the ef-
forts in or about December 1989.
Thus, I do not believe that the General Counsel’s ‘‘newly
discovered evidence’’ establishes anything new and signifi-
cant with respect to the dismissed charges that was not
known or could not have readily been discovered at the time
the charges were dismissed. In this regard, the General Coun-
sel has the burden of showing what efforts were made by the
Board to discover the operative facts regarding the matters
contained in the dismissed charges. There is no evidence in
this record relating to this issue. Considering the openess
with which Respondent’s management expressed its desire to
do way with the bargaining unit, I believe this is a signifi-
cant omission. For example, there was not shown to be any
statements taken from Girardi or Curran, in which they could
have admitted or denied any unlawful intent. There was
shown to be only one statement taken from a bargaining unit
member, and that one strongly indicated unlawful activity
and unlawful intent. No requests were shown to have been
made for materials relating to the strike issue or the bar-
gaining process. I believe, given what was apparent from the
bargaining process, what was supplied to the Board by the
Union, and the proof the Board had of the unlawful state-
ments of White following implementation, the Board would
not have been going on a mere hunch, rumor or suspicion,
as General Counsel suggests, in fully investigating the mat-
ters raised by the dismissed charges.
In conclusion, I do not believe that it has been proven that
Respondent fraudulently concealed operative facts with re-
garding the dismissed charges from either the Union or the
General Counsel and thus this exception to the limitations
provisions of Section 10(b) cannot be relied upon to the re-
vive the dismissed charges, embodied in the consolidated
complaint.
3. Are the allegations in the consolidated complaint
closely related to the 8(a)(1) statements which were the
subject of the set-aside settlement agreement?
The charge filed in Case 1–CA–26660 on September 8,
1989, alleged, among other things, that Respondent, through
Kenneth White, offered its employees improved wages and
working conditions if they renounced the Union. Prior to the
issuance of a complaint in Case 1–CA–26660 concerning
White’s statements, Respondent entered into a unilateral
agreement approved by the Regional Director on February
1514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Universal Blanchers, Inc., 275 NLRB 1544, 1545 (1985).
28 See Norris Concrete Materials, 282 NLRB 289 (1986).
29 Whitewood Oriental Maintenance Co., 292 NLRB 1162 (1989);
Nickels Bakery, supra; Castaways Management, 285 NLRB 954
(1987).
22, 1990. By that settlement agreement, Respondent agreed
to post an appropriate notice. Although Respondent appar-
ently complied with the posting requirement, the Region
never closed the case and the charge remained pending, be-
cause of the pendency of the charge in Case 1–CA–27243.
Thereafter, the Regional Director, vacated and set aside the
settlement agreement. The Board has held that a settlement
agreement will be set aside if its provisions are breached or
if postsettlement unfair labor practices are committed.27
The General Counsel contends that the settlement agree-
ment was properly set aside and that under the Board’s hold-
ing in Redd-I, Inc., 290 NLRB 1115 (1988), the allegations
of the consolidated complaint may be added to the 8(a)(1)
allegations involved in the settlement agreement. Respondent
disagrees on both points. In support of the Regional Direc-
tor’s decision to set aside the settlement agreement, General
Counsel contends that the evidence uncovered with respect to
the subcontracting indicating that unlawful activity was oc-
curring during the posting period of the agreement warrants
the settlement being get aside. I agree with this position. I
also agree that Respondent’s behavior at least with respect to
the subcontracting reflects contempt for the Board’s proc-
esses and the Act and demonstrates that it did not intend to
comply with the intent of the settlement agreement, that is,
not to engage in further unfair labor practices.28 However, I
do not believe that a set-aside agreement is a proper vehicle
to resurrect the dismissed charges as sought by General
Counsel.
Although the statements attributed to White and which are
the basis of the settlement agreement are clear violations of
Section 8(a)(1) of the Act, and may in my opinion be prop-
erly used to bolster the General Counsel’s case in 1–CA–
27243, I do not believe the 8(a)(1) violations involved are
closely related to the dismissed 8(a)(3) and (5) allegations
contained in the dismissed charges within the meaning of
Redd-I, Inc., supra. The Board has allowed the amendment
of complaints to add allegations if they are closely related to
allegations of a timely filed charge and occurred within 6
months before the filing of that charge. When determining
whether allegations are closely related, the Board looks at
whether the untimely allegations are legally and factually re-
lated to the allegations of the timely charge. In Redd-I, Inc.,
supra, the Board set forth the test for establishing whether
a proposed amendment was closely related to a timely filed
charge:
In deciding whether complaint amendments are closely
related to allegations in the charge, the Board and the
courts have looked to whether the amendments are fac-
tually and legally related to the charge. In National Lic-
orice the Supreme Court held that various complaint al-
legations were related to the charge when the violations
alleged in the complaint were ‘‘of the same class of
violations as those set up in the charge and were con-
tinuations of them in pursuance of the same objects.’’
The Second Circuit has said that ‘‘the complaint issued
by the Board must deal with the same subject matter
and sequence of events . . . although the specific
events stated in the complaint may proceed or follow
those state in the charge.’’ Finally, the Board has found
complaint allegations closely related when they ‘‘arise
from the same factual situation, are of the same class
as, and clearly related to, the allegations . . . set forth
in the charge.’’
Subsequently, in Nickles Bakery, 296 NLRB 927 (1989),
the Board summarized the three factors that must be looked
at in determining whether the proposed amendment relates
back:
First, the Board will look at whether otherwise untimely
allegations involve the same legal theory as the allega-
tions in the pending timely charge. Second, the Board
will look at whether the otherwise untimely allegations
arise from the same factual circumstances or sequence
of events as the pending timely charge. Finally, the
Board will look at whether a Respondent would raise
similar defenses to both allegations.
Though generally it has been held that any allegations of
violations that are sought to be added must involve violations
of the same section of the Act, the Board has made excep-
tions when the violations sought to be added arise out of the
same subject matter, same factual situation and sequence of
events, and involve related legal theories.29 I do not believe
that to be the case here. The alleged unlawful statements of
White arose from complaints about wages and the refusal of
Respondent to let its union personnel wear shorts in the sum-
mertime. Thus to the extent that the bargaining alleged to be
in bad faith involved wage proposals and the implemented
final offer set the wages complained of, there is some subject
matter relationship. General Counsel would go farther and
have me hold that the statements of White were part of the
overall ‘‘scheme’’ to get rid of the Union and thus, any alle-
gation involving this ‘‘scheme’’ would be related.
I cannot find that the statements uttered by White are part
of a ‘‘scheme.’’ There just is no evidence to that effect.
White testified in a very hostile manner toward Respondent,
yet he did not say he was told by Girardi or any other man-
agement official to make the statements in furtherance of Re-
spondent’s desire to get rid of the Union or as part of any
‘‘scheme’’ to that effect. They appear to me simply isolated
statements reflecting the common knowledge of all Girardi’s
employees that Girardi would like to get rid of the Union.
Certainly the legal theory and defense involved in White’s
violation of Section 8(a)(1) is far different than that involved
in the constructive discharge and surface bargaining charges
the General Counsel seeks to tie in. Simply making the state-
ments is unlawful and the only defense to the alleged state-
ments is a factual denial that they were made. A defense to
the 8(a)(3) and (5) allegations would involve at the least an
explanation of every step the Respondent took from the out-
set of negotiations through the implementation of its final
offer. It would require determinations on the issues of bad-
faith bargaining and whether impasse was reached, with the
only tie-in with the 8(a)(1) statements being their bearing on
the issue of intent. I do not find this to be sufficient to meet
the closely related rest.
1515GIRARDI DISTRIBUTORS
30 Based on this ruling, I would recommend that the set-aside set-
tlement agreement be reinstated.
31 It should be remembered that Respondent Girardi paid the costs,
including legal fees, for the setting up of these corporations, pro-
vided the equipment to begin operations, and supplied its personnel
to aid in the operation.
Finally, on this point, General Counsel asserts that Re-
spondent could defend itself on the matters contained in the
dismissed charges because it or West Coast has copious
notes involving the bargaining process. I believe, though I
am not sure, that he is correct in his assertions about the
notes being preserved. However, memories are involved as
well, especially on the critical events surrounding the prepa-
ration for bargaining, and the decision to declare impasse and
implement the final offer. Two years have passed since the
events in question occurred and this passage of time must
also be considered in any equitable consideration of due
process before the dismissed charges are resurrected. For all
the reasons set forth above, I would sustain Respondent’s
motion not to allow the allegations set forth in the dismissed
charges and the consolidated complaint to be added to the
complaint allegations underlying the set-aside settlement
agreement. I grant Respondent’s motion to strike the consoli-
dated complaint.30
D. Is the Amendment to the Complaint in Case 1–CA–
27243 Barred by the Provisions of Section 10(b)?
The original complaint in Case 1–CA–27243, issued on
June 28, 1990, alleged that Respondent violated Section
8(a)(1) and (5) of the Act by failing and refusing to provide
the Union with necessary and relevant information con-
cerning the name of the subcontractor it was considering
using to replace the unit employees and by its subsequent
subcontracting of all of the unit work. As a remedy, the com-
plaint requested reinstatement of the bargaining unit as it ex-
isted prior to the subcontracting.
The 8(a)(1), (3), and (5) allegations concerning the sub-
contracting of unit work to Suburban, Commonwealth, and
Metrowest are single employers with the Respondent, the
8(a)(1) and (3) discharge of unit employees and the 8(a)(1)
and (5) withdrawal of recognition, all of which are the sub-
ject of the General Counsel’s motion to amend the complaint
in Case 1–CA–27243, are objected to by Respondent as time
barred by Section 10(b). For the reasons set forth below, I
disagree, and find the amendment is proper and Section
10(b) tolled under the fraudulent concealment exception.
The recitation of evidence, as set out above, establishes
that Respondent engaged in a complex and ongoing effort to
oust the bargaining unit by purporting to subcontract out the
unit work for legitimate reasons and in an arms-length trans-
action. Based on the evidence adduced in this proceeding,
this activity was marked by bad faith, unlawful intent, con-
cealment of virtually all operative facts, and affirmative mis-
representation of those operative facts. The decision to sub-
contract appears to have been truly a decision to get rid of
the unit. Figures were developed to provide economic jus-
tification for the subcontracting, and the figures used were
shown to have been substantially lower than the actual mon-
eys to be paid the subcontractor. Numerous corporations
were set up to disguise the identity of the subcontractor and
the scheme by which the subcontractor was to be paid. Pay-
ments in excess of the amounts disclosed to the Union were
made to these corporations by various of Girardi’s existing
corporations.
It is clear that Respondent sought to hide its unlawful ac-
tivity by refusing to supply the name of the ‘‘subcontractor’’
and affirmatively stating to the Union on a number of occa-
sions that no alter ego operation or double-breasted operation
was being set up. As noted, it supplied false financial infor-
mation to the Union to support its decision to subcontract,
and purported to bargain with the Union over the issue at a
time when it had already struck a deal, set up the corpora-
tions necessary to carry out the unit work, and had the ‘‘sub-
contractor’’ hire a work force.31
Because of the level of concealment, including the refusal
to provide the name of the subcontractor, and the affirmative
misrepresentations made by Respondent, neither the Union or
the Board could have discovered the true facts of the situa-
tion, and there was no lack of due diligence on their part in
this matter. All of the matters contained in the amendment
are part and parcel of a unified attempt to unlawfully elimi-
nate the bargaining unit and should be considered with the
allegations of the original complaint. Since Quabbin and Erin
are an outgrowth of Suburban, Metrowest, and Common-
wealth and neither the Union nor the Board had any knowl-
edge of Quabbin until Murphy and DeVito came forward,
and there was no knowledge of Erin until the hearing on
these matter, Respondent’s concealment of its operations
warrants tolling the 10(b) period to those allegations as well.
E. Legal Conclusions that Flow from Respondents’
Amended Answer to the Amended Complaint
in Case 1–CA–27243
Although Respondent, by its amended answer admitted all
of the factual allegations set forth in paragraphs 1–23 of the
amended complaint, Respondent did not admit the legal con-
clusions set forth in paragraphs 24–28, which flow from the
admitted factual allegations, in order to preserve its argument
that the motion to amend the complaint in Case 1–CA–27243
should be denied. As noted above, the amendment is proper
and allowed. As described below, sufficient facts were plead
and admitted to establish the violations alleged in the amend-
ed complaint.
1. The unlawful refusal to provide information
By its amended answer, Respondent admits that since on
or about April 13, 1990, it has failed and refused to provide
the Union with the name of the subcontractor it had con-
templated using to perform the work of the bargaining unit.
It was admitted that the Union made this information request
to Respondent on or about April 3, 1990, and that the infor-
mation requested was necessary for and relevant to the
Union’s performance of its function as the exclusive collec-
tive-bargaining representative of the unit employees.
Based on the foregoing admitted facts, Respondent has
breached its duty to bargain in good faith with the Union in
violation of Section 8(a)(1) and (5) of the Act. It is well set-
tled that the duty to bargain in good faith requires a respond-
ent to furnish a union with requested information that is rel-
evant to and necessary for the union’s performance of its
function as collective-bargaining representative of unit em-
1516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). In-
deed, the Board has held that a respondent who fails to sup-
ply a union with information similar to that which the Union
in this case requested, violates Section 8(a)(1) and (5) of the
Act. See Wallace Metal Products, 244 NLRB 41 fn. 2
(1979); Fawcett PrintinG Corp., 201 NLRB 964, 970 (1973);
Transcript Newspapers, 286 NLRB 124 fn. 2 (1987).
2. The discriminatory transfer of unit work and
discharge of unit employees
By its amended answer, Respondent has admitted that it
and Suburban Contract Carriers, Inc., Commonwealth Labor
Pool, Inc., and Metrowest Warehousing, Inc. are single em-
ployers within the meaning of the Act. Respondent has fur-
ther admitted that it and Quabbin Labor Pool, Inc. and Erin
Distributors, Inc. are single employers and alter egos within
the meaning of the Act. It is further admitted that on or
about April 13, 1990, the Respondent subcontracted all of the
unit work to Suburban, Metrowest and Commonwealth and
discharged all of the unit employees, and that on or about
September 1990, Respondent subcontracted all of the work
of the unit to Quabbin and Erin. Respondent admits it took
that action because of the union activities of its employees
and because it wanted to discourage such activities. Based on
the foregoing admitted facts, Respondent has violated Section
8(a)(1) and (3) of the Act by its subcontracting of the work
and discharge of unit employees. SMCO, Inc., 286 NLRB
1291 (1987); Hydro Logistics, 287 NLRB 602 (1987); Sands
Motel & AMM, 280 NLRB 132 (1986).
3. The unilateral implementation of the decision to
subcontract work
By its amended answer, Respondent has admitted that the
Respondent subcontracted the unit work to Suburban, Com-
monwealth, Metrowest, Quabbin, and Erin without having af-
forded the Union an opportunity to negotiate and bargain to
a bona fide impasse as the exclusive representative of Re-
spondent’s employees with respect to such acts and conduct
and effects of such acts and conduct. The Respondent has
further admitted that the issue of subcontracting is a manda-
tory subject of bargaining as it relates to wages, hours, and
other terms and conditions of employment of the unit. By the
foregoing admitted facts, the Respondent has violated Section
8(a)(1) and (5) of the Act. The Board has specifically held
that when the decision to relocate work is motivated, as Re-
spondent has admitted, by antiunion reasons, the Employer is
not exempt from a bargaining obligation under First National
Maintenance v. NLRB, 452 U.S. 666 (1981); SMCO, Inc.,
286 NLRB at 1296, citing Strawsine Mfg. Co., supra; see
also Hydro Logistics, supra.
4. The unlawful withdrawal of recognition
By its amended answer, the Respondent has admitted that
on or about April 16, 1990, it withdrew its recognition of the
Union as the exclusive collective-bargaining representative of
the unit. Under the circumstances presented by the Respond-
ent’s factual admissions in this case, its withdrawal of rec-
ognition violates Section 8(a)(1) and (5) of the Act. Re-
spondent’s withdrawal of recognition of the Union was based
on the discriminatory discharge of the unit employees. Under
those circumstances, the Board has found the withdrawal of
recognition violative of Section 8(a)(1) and (5). SMCO,
supra.
CONCLUSIONS OF LAW
1. Respondents Girardi Distributors, Inc., Suburban Con-
tract Carriers, Inc., Commonwealth Labor Pool, Inc.,
Metrowest Warehousers, Inc., Quabbin Labor Pool, Inc., and
Erin Distributors, Inc. are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondents are alter egos of one another and single employ-
ers within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. At all times material to this decision, the following em-
ployees of Respondent constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All checkers, warehouse employees, helpers, foremen
and stockmen, fork truck operators and drivers, includ-
ing shippers and receivers employed by the Respondent
at its Athol facility, but excluding all supervisors and
office personnel.
4. At all times material, the Union has been the designated
exclusive collective-bargaining representative of the employ-
ees in the above described unit, had been recognized as such
representative by Respondent. Such recognition has been em-
bodied in successive collective-bargaining agreements, the
most recent of which was effective by its terms for the pe-
riod May 19, 1986, to May 19, 1989. At all times material,
the Union, by virtue of Section 9(a) of the Act, has been,
and is, the exclusive representative of the employees in the
unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment.
5. Respondents have engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by:
(a) Failing and refusing since on or about April 13, 1990,
to provide the Union with relevant and necessary information
requested by it on or about April 3, 1990.
(b) Subcontracting the work of the unit for discriminatory
and antiunion reasons since on or about April 13, 1990, and
failing and refusing to bargain in good faith to a bona fide
impasse with the Union over the decision to subcontract and
the effects of this subcontracting.
(c) Withdrawing recognition of the Union on or about
April 16, 1990, as a result of its unlawful and discriminatory
discharge of all unit employees.
6. Respondents have engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act by
subcontracting all of the unit work on April 13, 1990, and
discharging all unit employees, and further subcontracting the
unit work on or about September 1990.
7. The unfair labor practices found to have been com-
mitted by Respondents are ones affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
8. The consolidated complaint and notice of hearing issued
on March 15, 1991, in Cases 1–CA–26394, 1–CA–26561,
and 1–CA–26660 is barred by the limitations provisions of
Section 10(b) of the Act.
9. The allegations contained in the consolidated complaint
issued on March 15, 1991, are barred from consideration by
1517GIRARDI DISTRIBUTORS
32 General Counsel urges that this make-whole remedy be ex-
tended to the various employees who performed unit work under the
guise of the various subcontracting schemes begun on or about April
13, 1990. He asks that their wages be redetermined under the imple-
mented provisions of the final offer under which the discharged unit
employees worked, and that the insurance provisions and pension
contributions required under the implemented final offer be extended
to them. I decline to do so. These employees were benefited,
wittingly or unwittingly, by the unlawful subcontracting scheme.
They entered into their employment with Respondents based on the
wages and benefits, or lack thereof, offered to them. To extend these
benefits to them at this date would serve no useful purpose and
would to the contrary serve just to punish Respondents, perhaps to
the detriment of the true victims of Respondents’ unlawful activity,
the unit employees. The potential liability resulting from the imposi-
tion of an order requiring Respondents to pay insurance claims for
the nonunit employees used in the subcontracting scheme is un-
known and might conceivably financially injure Respondents to the
point that no meaningful remedy is available to the unit employees.
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
34 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.’’
the limitations provisions of Section 10(b) of the Act and are
not closely related to the 8(a)(1) allegations contained in a
settlement agreement set aside by the Regional Director for
Region 1 in Case 1–CA–26660.
THE REMEDY
Having found that Respondents have committed violations
of Section 8(a)(1), (3), and (5) of the Act, it shall be ordered
to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act.
Respondents collectively are ordered to cease and desist
from their unlawful subcontracting of unit work, and Re-
spondent Girardi Distributors, Inc. is ordered to re-extend
recognition to the Union as the exclusive representative for
purposes of collective bargaining of its employees in the
unit, restore the status quo ante to the date such illegal sub-
contracting began and recognition was withdrawn. Respond-
ent Girardi Distributors is ordered to reinstate its unit em-
ployees, unlawfully discharged on or about April 13, 1990,
discharging if necessary any employees hired to replace
them, and all Respondents are jointly and severally ordered
to make the unit employees whole for any loss of wages or
other benefits, including health, welfare, and retirement bene-
fits, to which they would have been entitled had they not
been unlawfully discharged.32 Respondents are also ordered
to make whole any unit employees unlawfully discharged for
any losses they may have suffered by virtue of having lost
their insurance benefits. Backpay is to be determined to be
due under the provisions of this Order will be determined
pursuant to the Board’s directions in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest thereon computed in ac-
cordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended33
ORDER
The Respondents, Girardi Distributors, Inc., Suburban
Contract Carriers, Inc., Commonwealth Labor Pool, Inc.,
Metrowest Warehousers, Inc., Quabbin Labor Pool, Inc., and
Erin Distributors, Inc., Boston, Massachusetts, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing since on or about April 13, 1990,
to provide the Union with relevant and necessary information
requested by it on or about April 3, 1990.
(b) Subcontracting the work of the unit for discriminatory
and antiunion reasons since on or about April 13, 1990, and
failing and refusing to bargain in good faith to a bona fide
impasse with the Union over the decision and effects of this
subcontracting.
(c) Withdrawing recognition of the Union on or about
April 16, 1990, as a result of its unlawful and discriminatory
discharge of all unit employees.
(d) Subcontracting all of the unit work since on or about
April 13, 1990, and discharging all unit employees, and fur-
ther subcontracting the unit work on or about September
1990.
(e) In any like or related manner interfering with, coercing,
or restraining their employees in the exercise of rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately restore the status quo ante to the date rec-
ognition of the Union was withdrawn, re-extend recognition
to the Union as the exclusive representative of the unit em-
ployees and offer immediate reinstatement to the unit em-
ployees unlawfully discharged on or about April 13, 1990,
discharging if necessary any employees hired to replace
them. The unit employees will be reinstated to their former
positions and if such positions no longer exist, to substan-
tially similar positions, with no prejudice to their seniority or
other rights and privileges, and they shall be made whole for
any loss of wages or other benefits, in the manner described
in remedy section of this decision.
(b) On request, bargain in good faith with the Union, over
the decision to subcontract unit work and the effects thereof,
and over all other mandatory subjects of bargaining.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at each of their various Massachusetts facilities
copies of the attached notice marked ‘‘Appendix.’’34 Copies
of the notice, on forms supplied by the Regional Director for
Region 1, after being signed by Respondents’ representatives,
shall be posted by the Respondents immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
1518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 hag found that we vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to provide the Union with informa-
tion relevant to and necessary for its duties as exclusive rep-
resentative for purposes of collective bargaining of our em-
ployees in the following described unit:
All checkers, warehouse employees, helpers, foremen
and stockmen, fork truck operators and drivers, includ-
ing shippers and receivers employed by us at our Athol
facility, but excluding all supervisors and office per-
sonnel.
WE WILL NOT subcontract the work of the above-described
unit for discriminatory and antiunion reasons and WE WILL
NOT fail or refuse to bargain in good faith to a bona fide im-
passe with the Union over the decision to subcontract and the
effects of this subcontracting.
WE WILL NOT withdraw recognition from the Union as the
exclusive representative of our unit employees because we
discharged our unit employees by unlawfully subcontracting
unit work.
WE WILL NOT in any like or related manner interfere with,
coerce, or restrain our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL immediately re-extend recognition to the Union
as exclusive representative of our unit employees.
WE WILL immediately reinstate all our unit employees who
we unlawfully discharged on or about April 13, 1990, dis-
charging if necessary any employees hired to replace them,
and restore our unit employees to their former positions, or
to substantially similar positions if their former positions no
longer exist, and WE WILL make our unlawfully discharged
unit employees whole for any losses they may have suffered
by reason of our discrimination against them, including pay-
ment of lost wages, or other benefits, with interest.
WE WILL restore the wages and other working conditions
of our unit employees to those that existed at the time they
were unlawfully discharged.
WE WILL, on request, bargain in good faith with the Union
over the decision to subcontract unit work and the effects
thereof, and over all other mandatory subjects of bargaining.
GIRARDI DISTRIBUTORS, INC., QUABBIN
LABOR POOL, INC., ERIN DISTRIBUTORS, INC.,
SUBURBAN CONTRACT CARRIERS, INC., COM-
MONWEALTH LABOR POOL, INC., METROWEST
WAREHOUSING, INC.