Hotel & Restaurant Employees Local 2 (Castagnola's Restaurant)

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 441 (N.L.R.B. 2003)

HOTEL & RESTAURANT EMPLOYEES LOCAL 2 (CASTAGNOLA) 441
Hotel Employees and Restaurant Employees, Local 2
and Castagnola, Inc. of San Francisco d/b/a
Castagnola’s Restaurant. Case 20–CB–11531
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On July 11, 2002, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
Union filed exceptions and a supporting brief and the
General Counsel filed cross-exceptions and a brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
We agree with the judge’s conclusion that the Union
did not unlawfully refuse to bargain with the Employer.
As the judge found, Employer Attorney Mark Montobbio
summarily rejected all of the Union’s proposals, and
stated that he had no counterproposals and that the Em-
ployer did not want to change anything. The Union ac-
cepted the Employer’s bargaining position, as expressed
by Montobbio, that it wanted no changes to the existing
contract. Clearly, such acceptance was not an act of bad
faith. Montobbio’s subsequent letters to the Union left it
to the Union to inform the Employer if it wished to con-
tinue bargaining. The Union, having accepted the Em-
ployer’s bargaining position, saw no need to respond.1 In
these circumstances, we find that the Union did not act
unlawfully in failing to resume negotiations.2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Lucile Lannan Rosen, Esq., for the General Counsel.
Kim C. Wirshing, Esq., of San Francisco, California, for the
Respondent.

1 We do not rely on the judge’s finding that the Employer required,
as a condition precedent for resuming bargaining, that the Union advise
the Employer in writing of its desire to do so.
2 We find it unnecessary to pass on the judge’s finding that the Un-
ion’s assertion of a contract was mistaken, or his speculation as to how
the General Counsel might have handled a union charge that the Em-
ployer refused to execute the parties’ agreement, because these findings
are not necessary for the resolution of the unfair labor practice alleged
in the complaint. For the same reason, although we adopt the judge’s
findings as to the Employer’s conduct with respect to bargaining, we
find it unnecessary to pass on his suggestion that the Employer’s ac-
tions constituted bad-faith bargaining.
J. Mark Montobbio, Esq., of San Rafael, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The un-
fair labor practice charge in the above-captioned matter was
filed by Castagnola, Inc. of San Francisco d/b/a Castagnola’s
Restaurant (the Charging Party) on June 14, 2001.1 After an
investigation, based upon the above unfair labor practice
charge, on August 20, the Acting Regional Director for Region
20 of the National Labor Relations Board (the Board) issued a
complaint, alleging that Hotel Employees and Restaurant Em-
ployees, Local 2 (Respondent), engaged in, and is continuing to
engage in, an unfair labor practice within the meaning of Sec-
tion 8(b)(3) of the National Labor Relations Act. Respondent
timely filed an answer, essentially denying the commission of
the alleged unfair labor practice. Pursuant to a notice of hear-
ing, a trial on the merits of the alleged unfair labor practice was
held before me on November 29 in San Francisco, California.
During the trial, all parties were afforded the right to examine
and to cross-examine witnesses, to offer into the record all rele-
vant documentary evidence, to argue their legal positions
orally, and to file posthearing briefs. The latter documents were
filed by counsel for the General Counsel and by counsel for
Respondent, and both briefs have been carefully considered by
me. Accordingly, based on the entire record, including my ob-
servation of the testimonial demeanor of each witness and the
post-hearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation, with an of-
fice and place of business on Fisherman’s Wharf in San Fran-
cisco, California, has been engaged in the operation of a restau-
rant. During the year ending on December 31, 2000, in con-
ducting its business operations described above, the Charging
Party derived gross revenues in excess of $500,000 and re-
ceived goods and products valued in excess of $5000 directly
from suppliers located outside the State of California. Based on
the foregoing, the Charging Party has been, and is now, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act,
II. LABOR ORGANIZATION
Respondent is now, and has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ISSUES
The General Counsel alleges that, notwithstanding the
Charging Party’s requests that Respondent meet and bargain
with it for a successor collective-bargaining agreement, the
former has steadfastly failed and refused to do so and thereby
engaged in conduct violative of Section 8(b)(3) of the Act.
Contrary to the General Counsel, Respondent argues that the
parties reached agreement on a successor collective-bargaining
1 Unless otherwise stated, all events occurred during 2001.
340 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
agreement when Respondent surprised the Charging Party by
accepting its offer for a new agreement and that, as the Charg-
ing Party had no intent in reaching agreement for a new con-
tract with Respondent, no violation of the Act may be found.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Pursuant to a lease agreement with the city of San Francisco,
the Charging Party, a corporation, owns and operates a restau-
rant on Fisherman’s Wharf, which is a land and wharf area,
adjacent to San Francisco Bay, owned by the city, and, al-
though the record is silent as to his ownership interest in the
corporation or his corporate title, if any, there is no dispute that
the operator of the restaurant is Andrew Lolli. The record estab-
lishes that since at least May 1, 1970, the date on which the
lease agreement between the Charging Party and the city of San
Francisco commenced, Respondent and the Charging Party
have had a collective-bargaining relationship; that the relation-
ship has resulted in successive collective-bargaining agree-
ments, the most recent of which expired, by its terms, on April
30, 2000; and that Respondent is the bargaining representative
of all the Charging Party’s employees performing work covered
by the terms of the successive contracts. J. Mark Montobbio is
the Charging Party’s attorney for labor relations matters and
Hector J. Reinaldo, an attorney, is an “advisor” to Lolli on
business matters. Michael Casey is Respondent’s president and
Lamoin Werlein-Jaen is its vice president and a field represen-
tative. The record further establishes that on expiration of the
parties’ most recent collective-bargaining agreement Respon-
dent made no request that the Charging Party enter into nego-
tiations for a successor agreement, and the latter just continued
the terms and conditions of employment of the expired agree-
ment.
The genesis of the instant labor dispute was Lolli’s desire,
resulting from his advanced age and fragile medical condition,
to sell the restaurant. According to Attorney Montobbio, in
December 2000, rumors concerning a possible sale of the res-
taurant by Lolli, began appearing in newspaper articles. At
approximately this time, one of Respondent’s representatives,
Alphonso Pines, telephoned him and asked whether he knew
anything about the sale of the business. Montobbio denied such
knowledge but “promised” he would return Pines’ call. Shortly
thereafter, Montobbio met with Reinaldo, who informed Mon-
tobbio that, in fact, Lolli was trying to sell the business and that
he was assisting Lolli in negotiating with a prospective pur-
chaser. The two attorneys agreed that Montobbio should imme-
diately notify Respondent of the pending sale of the restaurant
and of the identity of the buyer. Thereafter, in January, Mon-
tobbio wrote to Respondent, informing it of the sale and dis-
closed the prospective purchaser’s identity. Casey also was
aware of rumors of the possible sale of the business in Decem-
ber 2000, and receipt of Montobbio’s letter confirmed for him
that the rumors were factual. Subsequently, according to Mon-
tobbio and Casey, in either January or February, they met at the
World Trade Club2 in San Francisco. According to Montobbio,
Casey “indicated that he wanted Castagnola’s to guarantee that
whoever purchased the restaurant would hire all of the former
employees and sign an agreement with [Respondent].” Mon-
tobbio replied that the purchaser had already informed Lolli
that recognition of Respondent “would depend upon what hap-
pened after they purchased the business” and that “we couldn’t
guarantee one way or the other what would happen.”3 Montob-
bio added that he was prepared to discuss severance pay for the
affected restaurant employees. Casey’s recollection was simi-
lar—that, after he raised such issues as the “extension of bene-
fits” and the “retention of the workers and their jobs,” Montob-
bio informed Respondent’s president that the Charging Party
was prepared to offer a “handsome” severance package to the
restaurant’s employees. After meeting with Montobbio, Casey
telephoned the owner of the prospective buyer and was in-
formed that the buyer “had no intention” of either hiring the
restaurant’s employees or agreeing to operate under a union
contract.4
The Charging Party’s lease agreement with the city of San
Francisco provides that an entity, known as the San Francisco
Port Commission (SFPC), must approve the transfer of its lease
to another entity, and, without the approval of the SFPC, the
Charging Party could not consummate the sale of its restaurant
to the potential buyer.5 The SFPC holds monthly public meet-
ings, and, commencing in late 2000 and continuing through the
first 4 months of 2001, Reinaldo, Montobbio, and Lolli regu-
larly appeared at the meetings, attempting to convince the
SFPC to approve the transfer of the lease to the potential
owner. Also, at said meetings, aware of the potential owner’s
opposition to any bargaining relationship with it, representa-
tives of the Union voiced their opposition to the approval of the
transfer of the lease. According to Casey, in opposing the sale
of the restaurant, Respondent’s strategy was to inform the resi-
dents of San Francisco and the SFPC that, by dint of agreement
between the Charging Party and the potential buyer “workers
were being thrown out on the streets” and that Respondent
required a “successorship agreement” from the Charging Party
as an express condition of any new collective-bargaining
agreement. As of the date of the instant hearing, the SFPC had

2 Montobbio and Casey were well acquainted with each other, hav-
ing negotiated collective-bargaining agreements for, at least, four prop-
erties, including Castagnola’s.
3 During cross-examination, Montobbio stated that he was well
aware of the position of the prospective buyer—“they said they wanted
Castagnola’s to resolve whatever differences they had with the Union
because . . . they didn’t want to buy a restaurant and have a problem
when they opened up.”
4 Hector Reinaldo confirmed that this was the prospective buyer’s
position. According to Reinaldo, the former told Lolli that he was not
interested in becoming involved in any labor problems, and Lolli re-
plied that he did not have an existing union contract. Reinaldo had a
followup conversation with the buyer, explaining that there was an
expired collective-bargaining agreement but no severance package. The
prospective buyer responded that those were all the Charging Party’s
problems.
5 According to Montobbio, there would be no close of escrow until
the SFPC approved the transfer of the lease to the prospective pur-
chaser.
HOTEL & RESTAURANT EMPLOYEES LOCAL 2 (CASTAGNOLA) 443
yet to approve the transfer of the lease. In this regard, according
to Montobbio, “[Respondent] has political power in San Fran-
cisco and was successful in getting the SFPC to delay action.”
Concomitant with their appearances before the SFPC, Mon-
tobbio and Casey engaged in bargaining over the Charging
Party’s proposed severance package for the restaurant’s bar-
gaining unit employees.6 One such meeting was held on April
5.7 There is no dispute that this meeting was largely devoted to
discussion of the Charging Party’s severance proposal, which
Montobbio increased to approximately $400,000 and to which
Respondent presented a counterproposal.8 Also, at some point
during the meeting, Casey gave Montobbio Respondent’s pro-
posals for a successor collective-bargaining agreement, General
Counsel’s Exhibit 3.9 While promising to examine the contract
proposals, Montobbio refused to discuss them at that meeting.
Subsequently, according to Montobbio, “I received a call from
Mike Casey asking me if we would sit down and meet to nego-
tiate a new collective-bargaining agreement since now the res-
taurant had reopened.” Montobbio replied, asking “why waste
our time” since the owner was trying to sell the restaurant, but,
after Casey said Respondent had the right to request contract
bargaining, Montobbio agreed that Casey was legally accurate.
The two men then agreed to meet on May 18. Asked if the pur-
pose of this meeting was to discuss a successor agreement,
Montobbio cryptically replied, “Well, my intention, you know,
Mike asked for the meeting was to discuss everything. The
severance . . . that was number one and our priority.”
There is, of course, no dispute that the parties met on May 18
at Respondent’s office and that they devoted almost the entire
meeting to a discussion of Respondent’s successor contract

6 During February and March, Montobbio met with Casey on at least
two occasions regarding the Charging Party’s proposed severance
package for the restaurant’s employees and increased the offer from a
total package of $250,000 to $390,000 to be divided amongst the em-
ployees according to length of service at Castagnola’s.
7 On March 1, Lolli closed the restaurant ostensibly because his
health was failing but actually, according to Montobbio, as a tactic to
pressure the SFPC to finally approve the sale. However, “the Port took
the position that if the restaurant did not . . . resume its operations it
could void the lease. And [as] the lease is the value of Mr. Lolli’s in-
vestment . . . he basically was forced to reopen, and he did so . . . in
April.” In doing so, the Charging Party did not reinstate all of its em-
ployees in accordance with their seniority and, as a result, Respondent
filed a contractual grievance, alleging that 10 employees should have
been offered reemployment on the reopening of the restaurant.
8 Respondent proposed a severance package including $1,500,000 to
be divided amongst the employees, extended benefits for the length of
any closure of the restaurant, and, the Charging Party’s agreement to
make rehiring the employees a condition of the sale.
9 Attached to GC Exh. 3 was a two-page “successorship addendum.”
The provision required the Charging Party, as a condition of any
agreement to sell the restaurant, to ensure that any collective-bargaining
agreement between the parties would be binding upon the buyer, who
would be obligated to execute the collective-bargaining agreement.
Further, if such a provision was not included in an agreement to sell the
restaurant, the Charging Party would be required to pay to its employ-
ees the difference between the contractual wages, fringe benefits, and
other monetary amounts and those amounts paid by the buyer for the
length of the contract.
proposals. Present for the Charging Party10 were Montobbio
and Reinaldo,11 and representing Respondent were Casey, Wer-
lein-Jaen, and approximately 15 of the restaurant’s employees.
Montobbio testified that the bargaining session, which lasted
for just an hour, commenced with Casey distributing copies of
Respondent’s contract proposals and saying that they wanted to
spend the time negotiating the provisions. Montobbio re-
sponded that he would go through the proposals and, rather
than asking any questions, he began stating his position as to
each proposal. The first proposal was Respondent’s demand for
a 5-year contract term. According to Montobbio, “I told Mike
that Castagnola’s would not accept the five-year agreement”
and, as there was a pending sale, “that I had no proposal at that
time . . . and . . . would . . . discuss the term later on.” Regard-
ing the next proposal, health and welfare, Montobbio asked for
the current cost of the parties’ agreement. Casey said he did not
know the exact figures, and Montobbio asked him to have the
cost figures available before the next meeting.12 The next pro-
posal concerned employee vacations, and “I told them we
weren’t interested in that and that . . . we weren’t prepared to
agree to more vacation that we had in the expired agreement.”
As to Respondent’s proposal on part-time employees, which
involved eliminating the contract language, which gave the
Charging Party “some relief” in hiring employees, Montobbio
said “the restaurant wasn’t willing to agree to eliminate that
language from any contract.” Next, responding to Respondent’s
proposal adding some paid holidays and requiring the Charging
Party to pay holiday pay whether or not employees work on a
listed holiday, Montobbio “rejected that . . . we weren’t inter-
ested in increasing any holidays over what we were presently
paying.” On Respondent’s paid time off and extended sick
leave proposals, Montobbio, who was familiar with the pro-
posed language from other negotiations with Respondent, told
Casey “we weren’t interested in agreeing to that” or to chang-
ing the existing contract language. In responding to the paid
lunch period proposal, Montobbio “told [Casey] he knew we
didn’t have the money. We weren’t prepared to agree to that.
So we rejected that proposal.” Next, Respondent’s proposal on
schedules modified the existing contract language, and “I ex-
plained that . . . the restaurant, given [it’s] financial situation,
had to be flexible, had to be able to send people home if busi-
ness was slow. And this would inhibit that.” Regarding the
attached addendum on successorship, Montobbio said “we
weren’t interested in their successorship addendum” and “that
10 At this time, according to Montobbio, Lolli, who is over 90 years
old, was in the hospital and seemingly near death. However, he rallied
and recovered from his illness.
11 Reinaldo confirmed Montobbio as to where the Charging Party’s
interest lay. Thus, when asked at the hearing whether he and Montobbio
had discussed the Union’s contract proposals prior to May 18, he replied,
“Not the proposals. Basically, we talked of severance package.” Mon-
tobbio contradicted Reinaldo on this point, stating, during cross-
examination, he discussed bargaining with Reinaldo prior to the May 18
meeting—particularly health and welfare and the pension plan in order
to make them more cost efficient.
12 During cross-examination, Montobbio conceded he told Casey
“that the company did not want to spend more than what it was cur-
rently paying.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
we had made a proposal to them for a severance agreement,”
which would remain on the table until May 31. As to Respon-
dent’s proposed language regarding a banquet gratuity, “I told
them that at the time we weren’t interested in changing [the
practice of how banquet gratuities were distributed between the
employees who had worked a particular banquet].” As to Re-
spondent’s proposed automatic gratuity for any parties of five
or more patrons, Montobbio stated that he rejected the proposal
but that he told Casey he might “come up with some kind of
proposal.”13 Concerning the proposal on wages, which estab-
lished increases in each year of the contract, Montobbio said
“absolutely not” and that “we weren’t interested in increasing
. . . our wage cost over what the restaurant was currently pay-
ing.” At this point, according to Montobbio, Casey asked for a
listing of each current employee and his or her current wage
rate. Montobbio agreed to provide this information at the par-
ties’ next bargaining session. Regarding Respondent’s pension
proposal, according to Montobbio, “we rejected their proposal.”
Finally, as to Respondent’s proposal on bargaining unit posi-
tions, which was to restore individuals excluded in 1997, ac-
cording to Montobbio, “I told [Casey] that . . . we weren’t in-
terested in changing that.”14
Montobbio further testified that, when he finished going
through Respondent’s proposals for a successor collective-
bargaining agreement, he repeated an earlier statement concern-
ing a May 31 deadline for Respondent to accept the Charging
Party’s severance package proposal. Then, he and Casey began
discussing the Union’s contractual grievance on the Charging
Party’s failure to recall 10 employees after the restaurant re-
cently resumed operations. Casey advised that Respondent
would contest the grievances, and Montobbio replied that the
Charging Party would process them through the second step
but, as the prior contract had expired, it would not agree to
binding arbitration. At this point, Respondent’s representatives
caucused. When they returned, the meeting just ended and
Montobbio and Reinaldo left the building. According to Mon-
tobbio no date had been set for the parties’ next bargaining
session, but he told Casey to “get back” to him as to when Re-
spondent wanted another bargaining session. Finally, during
direct examination, asked if there was any discussion regarding
employer proposals, Montobbio replied, “No. I didn’t have any
proposals at the time. I was just responding to their proposals. I
would [get] back to them with my proposals when we met the
next time.” However, during cross-examination, he averred that
Casey might specifically have asked if he had any counter-
proposals, “and I told him I didn’t at that time.”
During cross-examination, Montobbio replied “Absolutely
not” when asked if Respondent made a proposal that the ex-
pired agreement be rolled over for a period of time and specifi-
cally denied that he made such a proposal. However, he con-
ceded responding to several of Respondent’s proposals with the

13 During cross-examination, asked why he would want to make a
counterproposal on automatic gratuity, Montobbio replied that, before
the Charging Party could make a decision on such a proposal, it “would
have to make a decision of whether they would want to implement that
kind of a practice. What impact that might have on customers.”
14 Montobbio’s bargaining notes show him saying “leave as is” to
eight of Respondent’s proposals.
words “leave as is.” Asked if he said anything to Casey which
would have caused the latter to believe the Charging Party de-
sired to roll over the expired contract terms, the attorney re-
plied, “No” because “I said the areas we definitely rejected. I
said the areas that . . . we prefer not to change. I said leave as is
over some areas.” 15 Asked if there is any difference between
saying leave as is and actually agreeing to a contract with eve-
rything the same as in the previous contract, Montobbio replied,
“Yes . . . I was responding to their proposals. And I was trying
to give them a rationale for why we were rejecting . . . them
. . . . But when I make my counterproposals, I put together all
of the things the employer would like to have with a view in
mind that there are many things . . . that are going to remain the
same.” He added that he left the meeting anticipating another
meeting and understood there would be some trading of pro-
posals done. Further, he denied leaving the meeting under any
belief he just agreed to a new collective-bargaining agreement,
for “any contract that we had was going to have [severance
pay] language in it . . . we’d never have an agreement if they
didn’t agree to our [proposal] because we couldn’t sell the
business.” Continuing, Montobbio stated that he never con-
cluded a contract with Casey when, at the end, the parties failed
to shake hands and agree they had a deal—“No, I don’t think I
ever have with him or one of his other representatives. I think
we’re always at the end, we got a deal. We got a deal.” Also,
Montobbio conceded he did nothing regarding counterpropos-
als after the May 18 meeting as, in order to do so, he would
have to bill his client, and Montobbio did not want to do so
until a second bargaining session had been scheduled.16 Finally,
Montobbio conceded there have been occasions during collec-
tive bargaining when he has placed a final offer before a union
and had it accepted subsequent to the bargaining session.
Hector Reinaldo testified that he appeared at the May 18
meeting in order to assist Montobbio and that he possessed full
authority to approve any agreements reached by Montobbio.17
He further testified that Montobbio reiterated the Charging
Party’s previous severance package offer and said that he was
giving Respondent until May 31 [to] accept. During cross-
examination, asked if Montobbio had reached agreement on a
new collective-bargaining agreement, would he have approved
it, Reinaldo said, “No, because I wouldn’t have given him per-
mission to do it.” According to Reinaldo, at the outset of the
May 18 meeting, Montobbio told Casey he was “not” prepared
to negotiate on a collective-bargaining agreement; rather,
“we’re here to talk to the severance package.” But, Montobbio
then said he would go through [Respondent’s] proposals and
15 According to Montobbio the latter areas were vacations, holidays,
paid time off, paid lunch, schedule change, banquet gratuities, pension,
and bargaining unit.
16 While stating that his intent was to have counterproposals to make
at the parties’ next bargaining session, Montobbio initially denied ever
having met with company representatives to discuss what to offer to
Respondent; however, he later testified “Oh, yeah, I had talked to the
company about . . . what kind of proposals we might want to make if
we get . . . the severance package.” Montobbio added that Reinaldo was
the person to whom he spoke.
17 Reinaldo conceded that, if Montobbio advised the Charging Party
to approve an agreement, it “probably” would be ratified.
HOTEL & RESTAURANT EMPLOYEES LOCAL 2 (CASTAGNOLA) 445
“summarily rejected them entirely.”18 Then, stating he would
give Respondent a “reason” for rejecting each proposal, Mon-
tobbio “went through them one at a time.” As to whether Mon-
tobbio might have agreed to a roll over of the expired collec-
tive-bargaining agreement’s provisions, “I wouldn’t have al-
lowed him to do it while I was sitting there. Our intention was
to get the severance package accepted. The buyers had already
indicated that they would not close the escrow as long as there
was an existing union contract.”19 However, Reinaldo denied
that the Charging Party would never have agreed to a collec-
tive-bargaining agreement with Respondent as Montobbio had
been in communication with the prospective buyer’s attorney in
order to find “some middle ground” between them. Finally,
contradicting Montobbio, asked if, at the end of the May 18
meeting, Montobbio said he did not have any counterproposals
to make, Reinaldo replied, “No, he didn’t say that,” and, asked
if he and Montobbio had discussed counterproposals, Reinaldo
replied, “Yes, I had a discussion with him.”20
With regard to what occurred at the May 18 meeting with
Montobbio and Reinaldo, Michael Casey testified that Montob-
bio began by announcing that the restaurant’s severance pro-
posal was “open” until May 31 and would be removed from
“the table” on that date. Thereupon, the discussion turned to
Respondent’s contract proposals, with Montobbio responding
to each one. According to Casey, as to the term of the successor
agreement, the former said he did not want a 5-year term but
had nothing “specific to offer then.” Turning to health and wel-
fare, for which Respondent had proposed a maintenance of
benefits provision, Montobbio rejected that proposal and said
“the company only wants to pay the current rates.” Also, Mon-
tobbio requested that Casey provide information as to the cur-
rent health and welfare costs. Concerning Respondent’s vaca-
tion proposal, “I remember [Montobbio] saying we reject any
increase in the vacation.” Regarding part-time employees, ac-
cording to Casey, “[Montobbio] stated that we want to leave it
as it is in the contract with the change negotiated in 1997.” As
to holidays, “Montobbio rejected any new holidays, saying
“we’ll leave it as it is.” Turning to paid time off, Montobbio
said “We don’t want any change, and we don’t want any added
costs. And this PTO proposal will do that.” As to paid lunch,
Montobbio said “. . . we don’t want any change.” With regard
to schedules, Montobbio said they wanted “. . . the right to
schedule as in the past . . . .” On Respondent’s lengthy succes-
sorship addendum, the Charging Party’s attorney “. . . was
adamant. Absolutely not.” Montobbio then said he rejected
Respondent’s banquet gratuities proposal. Concerning Respon-
dent’s automatic gratuity proposal, Montobbio said, “we reject
that and do not want any change in that.” Turning to Respon-
dent’s proposed wage rates and increases, Montobbio “. . .
wasn’t looking to raise the wages for everybody when eventu-

18 According to Reinaldo, Montobbio rejected Respondent’s propos-
als after discussing them with Reinaldo in private.
19 Reinaldo was explicit that the “goal” of meeting with Respondent
“. . . was to get the severance package accepted.”
20 Reinaldo conceded he was not really interested in any counterpro-
posals as “I wanted to get the severance package voted on.” Further, he
was unable to recall any of the circumstances of his conversation with
Montobbio regarding counter-proposals.
ally Mr. Lolli would not be the owner of the property.” As to
Respondent’s pension proposal, “. . . he said leave the amount
the same as it is in the current agreement.” Regarding the bar-
gaining unit proposal, Montobbio “. . . said that they didn’t
want any change in that.” At this point in the meeting, accord-
ing to Casey, he asked Montobbio if he had any counter-
proposals, “and [Montobbio] said we’ll only look at health and
welfare, which contradicted what had been said earlier. And
then I said, you have no counters to make . . . . He said, None.
We don’t want to change anything. We’re going to sell the
restaurant. We’re willing to have a contract, but it’s more im-
portant to finish the sale.” He added that, if the sale was unsuc-
cessful, “. . . then we’ll be right back in court . . .” and “. . .
there’s no way the money is going to stay on the table.” Then,
the discussions turned to the pending contractual grievance
over the individuals, who were not recalled when the restaurant
reopened in April, and Montobbio warned that “. . . we’re not
going to binding arbitration, but we’ll process the grievances.”
Then, after the parties reached an understanding as to Respon-
dent’s access to the property, Casey “. . . made it clear that we
are not going to accept [the] severance package” and asked for
“. . . a listing of the current workers and the wages of those
workers . . . .”
Respondent’s vice president Werlein-Jaen’s version of what
was said during the May 18 meeting was more concise than that
of Casey. According to the former, “[the bargaining session]
began with Mr. Montobbio discussing the severance package
that he wanted us to consider. And he explained that . . . there
was a deadline on it. And he explained that if we could not
reach an agreement on it . . . it would go to court and that the
money would no longer be offered because it would be used in
litigation.” After this, Casey said that the Union was there to
negotiate a contract and that such was the reason for the meet-
ing. He then handed Respondent’s contract proposals to Mon-
tobbio, who read the document, and “[he] rejected every single
one of our proposals.” Asked if he indicated some followup by
the Charging Party, the witness said, “when we discussed the
term of the agreement . . . I think he might have made reference
of . . . we’ll talk about it.” At this point, according to Werlein-
Jean, Respondent’s representatives caucused and then returned
to the meeting room. Then, the employer reiterated that they
were rejecting all of our proposals. They did not have any pro-
posals to give us. And that was the end of the session.” Elabo-
rating on the latter point and, at the same time contradicting
Casey, he stated that Montobbio “. . . did not say anything
about counter-proposals.” Rather, “I recall him numerous times
repeating we don’t want a change. We want to keep the con-
tract the way it is.” Thereafter, upon examining his bargaining
notes, Werlein-Jaen contradicted his earlier testimony, stating
that a copy of Respondent’s contract proposals had been given
to Montobbio at an earlier meeting and that Montobbio rejected
everything but the health and welfare “question.” Finally, while
on direct examination, asked by the undersigned if, after Mon-
tobbio rejected Respondent’s proposals, did Casey propose
something as a collective-bargaining agreement, Werlein-Jaen
responded, “No.” Then, asked if he believed a contract had
been reached after bargaining that day, the witness replied,
“No, they rejected every one of our proposals.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
During cross-examination, Werlein-Jaen recalled Montob-
bio specifically rejecting Respondent’s health and welfare pro-
posal but then “. . . making statements about we didn’t know if
it was going to increase and how much over the future.” Asked
to explain why his bargaining notes have Montobbio saying the
Charging Party would “take a look at” the health and welfare
contributions, Werlein-Jaen contended such was not a “literal
translation” of Montobbio’s comments and, in any event, he
found Montobbio to have been “contradictory” during the bar-
gaining session. Then, asked what Montobbio said about the
contract term, Werlein-Jaen said Montobbio rejected Respon-
dent’s proposal, saying “. . . something like that in the context
of we want to sell the restaurant, why would we want to sign a
five-year contract.” The witness was not sure why he noted
Montobbio said “we will look” at the term issue.
While testifying in agreement with Respondent’s vice presi-
dent that, at the close of the May 18 bargaining session, he did
not believe the parties had reached agreement on a collective-
bargaining agreement, Michael Casey also testified that, after
reviewing his bargaining notes and discussing the matter with
other officials of Respondent, he concluded that the Charging
Party would never present any counterproposals and, in order to
ensure that an arbitrator would decide the merits of the contrac-
tual grievance over the restaurant’s failure to recall 10 indi-
viduals upon reopening, “. . . we would have to swallow a con-
tract that didn’t include wage increases . . . [or] the pension
improvements.” A short while later, according to Casey, he
held a meeting with the bargaining unit employees, and, not-
withstanding that Montobbio never explicitly stated a proposal
for rolling over the employees’ existing terms and conditions of
employment as a contract proposal, after discussing the situa-
tion, the employees voted to accept the Charging Party’s bar-
gaining positions, as stated at the May 18 meeting, as its collec-
tive-bargaining agreement.
Asked if his analysis of the May 18 meeting was that the
Charging Party had, in effect, proposed a roll-over of the ex-
pired agreement, Casey said, “No, actually my analysis was
that the company didn’t want a contract. The company wanted
to sell the . . . restaurant.” At the meeting, they “. . . said they
were rejecting everything. Had no proposals to make, and . . .
that we don’t want to change anything. That to me is a state-
ment . . . as to what the collective-bargaining agreement would
look like if they were going to have one.” While “I knew in my
heart that they didn’t want to have a contract,” it was, and is,
“. . . my view that by rejecting everything, not putting any pro-
posals out on the table, we said, fine, we’ll withdraw everything
and just accept the current terms as you have said that you’re
happy with keeping things as they are.”
Thereafter, on May 29, Casey sent the following letter to
Montobbio. It reads:

At our last negotiating meeting, dated May 18, 2001, you re-
jected each of the union’s proposals related to modifications
of the collective bargaining agreement. In so doing, you re-
sponded that the company wished to retain terms of the exist-
ing contract.
After consideration of the company’s position related
to these issues, the union has decided to withdraw all pre-
vious proposals we have made and accept the company’s
last offer, i.e. to roll-over all existing terms into a new col-
lective-bargaining agreement.
Accordingly, enclosed are two signed Memorandums
of Understanding for a new collective bargaining agree-
ment. Please see that your client properly executes both
documents and returns an original to my office.
While this resolves the contract for Castagnola’s, I re-
mind you that in the event of a sale, the owner is still un-
der the obligation of negotiating the effects of any such
sale.

On reading Casey’s letter, Montobbio immediately replied in
writing. His letter, dated May 30, is as follows:

I received by messenger your letter today in which you pur-
port to accept Castagnola’s proposal for a new collective bar-
gaining agreement. Please be advised that at no time did
Castagnola’s propose a collective bargaining agreement. At
our last negotiation session, Castagnola’s responded to your
proposals and rejected your proposals. At that meeting there
was no discussion or any agreement on any of your proposals,
including the term. It is Castagnola’s intention to present a
counterproposal to Local 2 which will include changes in lan-
guage as well as proposed new benefits, and a severance
agreement in the event of the sale of the restaurant.
If you would like to reach an agreement, I suggest you
call me to schedule a meeting so that we may present
Castagnola’s proposals for a new contract. I will await to
hear from you.

Approximately a week later,21 having heard nothing from
Casey about scheduling another bargaining session, Montobbio
placed a telephone call to Respondent’s president. Montobbio
testified, “. . . I told him I had . . . gotten his letter, and I’m sure
he’d gotten mine, and I said . . . what is this? We never made
any proposals to you for a contract. I said we were going to get
back to you with our proposals.” According to Montobbio,
Casey “disagreed” with him, and Montobbio suggested they
turn to [Respondent’s] proposals. He mentioned the proposed
5-year term and said, “I told you we wouldn’t accept a five-
year term and I had no proposal for a term.” Casey replied that
he “understood” Montobbio as saying “the existing contract
was okay. And I said, No, there were proposals you made
where I said we would rather have the existing contract lan-
guage. But I never proposed that we would extend the existing
contract language for any period of time.” Casey reiterated that
he “disagreed” with Montobbio. The latter then asked if they
were going to meet, but “it was kind of left up in the air.” Ca-
sey failed to deny the occurrence of this conversation or to offer
a different version of what was said by Montobbio and him.
On June 12, Montobbio sent a letter to Casey. It reads as fol-
lows:

21 May 31, the date, which the Charging Party gave to Respondent as
a deadline for agreeing to its proposed severance package, passed, and
the record is unclear as to whether the Charging Party removed it from
Respondent’s consideration.
HOTEL & RESTAURANT EMPLOYEES LOCAL 2 (CASTAGNOLA) 447
Please advise me if you are willing to continue negotiations
with Castagnola’s Restaurant over a new collective bargain-
ing agreement.
I would appreciate hearing from you as I would like to
schedule a meeting.
B. Legal Analysis
The General Counsel contends that, by refusing to meet and
bargain with the Charging Party, Respondent engaged in acts
and conduct violative of Section 8(b)(3) of the Act. Counsel for
the General Counsel proffers no underlying theory for these
allegations and, instead, essentially contests Respondent’s as-
serted acceptance of the Charging Party’s contract offer. Thus,
noting Michael Casey’s admissions that, during the parties’
May 18 bargaining session, the Charging Party never proposed
a “roll-over” collective-bargaining agreement and, immediately
after the meeting, he did not believe the parties had reached
agreement on a successor agreement, counsel argues that Re-
spondent’s president was disingenuous in subsequently assert-
ing to Mark Montobbio Respondent had accepted the Charging
Party’s “last offer” to roll over all existing terms and conditions
of employment into a new contract. According to counsel, as,
thereafter, Respondent failed to respond to the Charging Party’s
requests for continued bargaining, it violated its statutory obli-
gation to bargain with the Charging Party. However, the Board
has held that a party’s own bad faith during bargaining may
preclude a finding of unlawful bad-faith bargaining by the other
party (New Brunswick General Sheet Metal Works, 326 NLRB
915 (1998); Louisiana Dock Co., 293 NLRB 233, 235–236
(1989)), and, as, in agreement with counsel for Respondent, I
do not believe that the Charging Party itself ever manifested an
intent to engage in good-faith collective bargaining with Re-
spondent, I am unable to conclude that Respondent engaged in
any acts and conduct violative of the Act. Finally, I also do not
believe that the General Counsel may establish a violation of
Section 8(b)(3) of the Act merely by challenging Respondent’s
assertion of an agreement between the parties.
With regard to my belief that the Charging Party failed to
manifest any intent to engage in good-faith collective bargain-
ing with Respondent, I initially question whether, subsequent to
Casey’s May 29 letter to Montobbio, the Charging Party ever
actually requested Respondent to resume contract bargaining
with it. Thus, by the tepid wording of his letters dated May 30
and June 12, attorney Montobbio appears to have placed a con-
dition precedent upon the Charging Party’s willingness to con-
tinue bargaining—written notification from Casey that Respon-
dent desired to engage in further bargaining. Lacking in either
of Montobbio’s letters is an affirmative expression of the
Charging Party’s desire to engage in further bargaining or a
demand that Respondent do so. In short, rather than affirma-
tively demanding continued negotiations, Montobbio’s lan-
guage is merely suggestive of a putative defense to a refusal-to-
bargain allegation by Respondent. Specifically concerning the
issue of intent, the record warrants the conclusion that the
Charging Party had no interest in negotiating a successor col-
lective-bargaining agreement and was only interested in negoti-
ating a severance agreement with Respondent. Thus, attorney
Montobbio admitted that, during a telephone conversation with
Casey regarding a meeting to discuss Respondent’s contract
proposals, he told Casey “why waste our time” since the owner
was trying to sell the restaurant and only agreed to bargain
because he was legally obligated to do so. Further, Hector Re-
inaldo testified that, at the outset of the May 18 meeting, Mon-
tobbio specifically advised Respondent’s representatives that,
rather than a collective-bargaining agreement, he was present to
discuss the Charging Party’s severance package, which was the
latter’s “goal” for the meeting; that Montobbio “summarily
rejected” Respondent’s contract proposals; and that he (Re-
inaldo) would have permitted Montobbio to reach agreement
upon a successor contract. Moreover, the Charging Party’s
representatives were well aware that, inasmuch as all of the
prospective purchaser’s existing restaurants were nonunion, it
would refuse to close escrow on the purchase of Castagnola’s if
the restaurant’s employees were covered by a collective-
bargaining agreement. Finally, with regard to the matter of
counterproposals, I credit Casey22 that, during the May 18
meeting, after rejecting Respondent’s proposals, replying to
Respondent’s president’s question as to whether he had any
counterproposals to make, Montobbio replied, “none,” and,
based upon the record as a whole, I believe that the Charging
Party had no intent to make any counterproposals to Respon-
dent 23 and that Montobbio’s statements, during his telephone
conversation with and in his letters to Casey that such would be
forthcoming were, at worst, mendacious and, at best, cleverly
designed to foreclose unfair labor practice findings against the
Charging Party.
Next, in contending that Respondent unlawfully failed and
refused to meet and bargain with the Charging Party, counsel
for the General Counsel concentrates upon analyzing Respon-
dent’s defense of an offer and an acceptance and, specifically,
what occurred during the parties’ May 18 bargaining session.
However, in arguing that Casey’s subsequent claim that he was
accepting the former’s “last offer” for a successor collective-
bargaining agreement was “disingenuous,” I believe that she
has failed to address the appropriate legal issue. In my view,
rather than its legal viability, the pertinent inquiry is whether, in
his May 29 letter, Casey acted in bad faith in making his above
assertion of an offer and an acceptance. Contrary to counsel, I
believe that what Casey did was merely to asseverate a legal
position to Montobbio—at best, a correct view of what had
occurred and, at worst, a colorable claim of a new contract, and
close scrutiny of the record discloses no evidence of underlying
bad faith. In this regard, Casey was quite credible that, after
analyzing his notes of the May 18 bargaining session, he under-
stood Montobbio’s rejection of each of Respondent’s contract
proposals, his responses that the Charging Party desired no
changes from the prior contract’s terms, and Montobbio’s
statement that he had no counterproposals as forming the basis
of a collective-bargaining agreement, one which Respondent

22 As between the two witnesses, I found Casey more credible on
this point.
23 Montobbio’s testimony was internally inconsistent with regard to
whether he held discussions with his client or Reinaldo as to counter-
proposals, and Reinaldo specifically stated that, on behalf of the Charg-
ing Party, he was not interested in counterproposals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
was forced to accept in order to preserve its contractual griev-
ance regarding the individuals, whom the Charging Party failed
to recall for work after reopening in April. Further, I note that
Respondent’s abandonment of its demand that the Charging
Party accept a stringent successorship provision in a new col-
lective-bargaining agreement concomitant with its asserted
acceptance of the Charging Party’s new contract offer appears
to be redolent of good faith. Moreover, counsel for the General
Counsel has cited no case citations supporting the proposition
that a specious assertion of a collective-bargaining agreement
alone vitiates a defense to an alleged violation of Section
8(b)(3) of the Act. In the foregoing circumstances,24 I find the
allegations of the instant complaint to be without merit.

24 Clearly, there was no basis for the General Counsel to allege that
Respondent’s mistaken assertion of a contract equated to an unfair
labor practice. Thus, in a not dissimilar context, if Respondent had
alleged the Charging Party’s refusal to execute the proffered collective-
bargaining agreement as an unfair labor practice, at most the General
Counsel would have dismissed for insufficient evidence and would not
CONCLUSION OF LAW
The General Counsel has not established that Respondent
has engaged in any violations of the Act.
On these findings of fact and conclusion of law and on the
entire record, I make the following recommended25
ORDER
The instant complaint is dismissed in its entirety.

have felt compelled to find that Respondent’s assertion of a contract
was itself unlawful. Finally, I think what exists herein is an internecine
dispute between two contractual parties one which is better left either to
collective bargaining or to the political process for resolution.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.