Industrial Waste Service

National Labor Relations Board - Board Decisions

Feb 27, 1984

268 N.L.R.B. 1180 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Waste Service, Inc. and Southern Confer-
ence of Teamsters. Cases 12-CA-9573, 12-CA-
9757, 12-CA-10145, and 12-CA-10236
27 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 7 June 1983 Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Charging Party filed exceptions, the General Coun-
sel filed exceptions and a supporting brief, and the
Respondent filed an answering brief in response to
the exceptions.
The National Labor Relations Board has delegat-
ed 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, 2
and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to the judge's refusal to allow
into evidence the affidavit given to the Board's Regional Office by
former employee Freddy Farmer, who died before the hearing. We
would find this affidavit admissible. Custom Coated Products, 245 NLRB
33 (1979). Yet, noting that such an affidavit "must be evaluated with
maximum caution, and only be relied upon if and when consistent with
extraneous, objective, and unquestionable facts" (United Sanitation Serv-
ices, 262 NLRB 1369, 1374 (1982)), we would find the General Counsel
has not met this burden in this case and, accordingly, we would place no
weight on Farmer's affidavit.
2 The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In fn. 13 of the Decision, the judge states inadvertently that the Re-
spondent filed a decertification petition on 16 November 1981. The peti-
tion filed by the Respondent on that date was an RM employer petition
and not a decertification petition.
DECISION
PRELIMINARY STATEMENT
BENJAMIN SCHLESINGER, Adminstrative Law Judge:
On October 28, 1980, Southern Conference of Teamsters
(the Union) was certified as the exclusive collective-bar-
gaining representative of the employees of Respondent
Industrial Waste Service, Inc. in the following appropri-
ate unit:
All drivers, drivers/helpers, welders, mechanics,
tiremen, partsmen, labor/helpers, painters and lead-
men; excluding all office clerical employees, dis-
patchers, salesmen, independent contractors, guards
and supervisors as defined in the Act.
Negotiations for an agreement began in December 1980
and on February 26, 1981, the employees struck the Re-
spondent and filed an unfair labor practice charge (Case
12-CA-9573) against the Respondent complaining, inter
alia, that the Respondent had engaged in surface bargain-
ing. That allegation was dismissed on April 20, 1981, the
Regional Director for Region 12 finding that the Re-
spondent had met with the Union at reasonable intervals,
had made proposals and counterproposals, had agreed to
some provisions, and was continuing to meet with the
Union for the purpose of negotiating a complete agree-
ment.
On June 18, 1981, the Union filed another charge
(Case 12-CA-9757), this time alleging, inter alia, that its
strike was caused by the Respondent's unfair labor prac-
tices and that the Respondent had refused to reinstate
striking employees following the Union's offer to have
them return to work. On July 31, 1981, the Regional Di-
rector dismissed that portion of the second charge, find-
ing that the strike was economic from its inception and
that it had not been converted to an unfair labor practice
strike. Appeals were taken by the Union from both dis-
missals, and the Office of Appeals sustained the appeals
on the limited grounds that the Respondent's "conduct
away from the bargaining table during the negotiations
raised Section 8(a)(1) and (5) issues and that [Respond-
ent's] refusal to immediately reinstate the strikers raised
Section 8(a)(l) and (3) issues."
As a result, a consolidated complaint issued on No-
vember 25, 1981, alleging that the Respondent violated
the Act by interrogating employees, by stating that it
would never sign an agreement with the Union, by offer-
ing employees benefits if they would not join the strike
or if they would return to work from their strike, by
granting wage increases and promising other benefits,
and by refusing to reinstate striking employees to their
former positions. The Respondent denies that it violated
the Act in any way. Hearings were held in Miami, Flori-
da, on May 3-7, 1982, during which time the consolidat-
ed complaint was amended to incorporate the allegations
contained in the Union's unfair labor practice charge in
Case 12-CA-10145, to wit, that the Respondent engaged
in further refusals to bargain in violation of Section
8(a)(5) by directly dealing with its employees and unilat-
erally granting further wage increases or promising to in-
stitute new benefits.
Thereafter, on June 16, 1982, the Union filed a new
charge in Case 12-CA-10236; and on November 19,
1982, another complaint issued alleging that the Re-
spondent committed new violations of the Act. A motion
to consolidate that complaint with the complaint then
pending was made and, over Respondent's opposition, an
order consolidating the complaints was granted on Janu-
ary 7, 1983, and a hearing was scheduled. However, all
parties moved in February 1983 to sever all 8(a)(3) and
(1) allegations contained in the new complaint; and the
268 NLRB No. 180
1180
INDUSTRIAL WASTE SERVICE
parties stipulated to facts and waived a further hearing
pertaining to one allegation of a unilateral change of
terms and conditions of employment. The motion was
granted on March 7, 1983.
On consideration of the entire record in this proceed-
ing,' including my observation of the demeanor of the
witnesses as they testified, and the briefs filed by the
General Counsel, the Respondent, and the Union, I make
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The principal thrust of the General Counsel's case is
based on the Regional Director's finding, never reversed
by the Office of Appeals, that the Respondent bargained
in good faith in its negotiating sessions with the Union.
The Respondent attempted to make proposals on the
issues raised by the Union; it generally met with the
Union at reasonable times and places; and it attempted to
reach agreement. On the other hand, however facially
appropriate the Respondent's conduct may have been at
the bargaining table, the General Counsel contends that
outside events, such as its threats never to sign a con-
tract, its direct dealing with employees, and its promises
of bonuses if employees would not strike transformed the
Respondent's legal bargaining conduct into a violation of
Section 8(a)(5) of the Act, relying on Skrl Die Casting,
245 NLRB 1041 (1979), enfd. in part 651 F.2d 1218 (6th
Cir. 1981); Clearwater Finishing Co., 254 NLRB 1168
(1981), enfd. in part 670 F.2d 464 (4th Cir. 1982); Cagle's,
Inc., 234 NLRB 1148, 1149, enfd. 588 F.2d 943 (5th Cir.
1979); Safeway Trails, 233 NLRB 1078, enfd. 641 F.2d
930 (D.C. Cir. 1979), cert. denied 444 U.S. 1072 (1980);
Berbiglia, Inc., 233 NLRB 1476 (1977).
Notwithstanding these comments and the Office of
Appeals' reversal of the Regional Director's dismissal let-
ters solely on the basis that it was the conduct away
from the bargaining table that made the Respondent's
bargaining illegal, vestiges of another theory still remain.
Thus, the General Counsel's brief contends that certain
events occurred at the bargaining table which implicitly
support the theory that the Respondent never had any
intention to bargain in good faith and reach an agree-
ment, to wit, (1) when faced with the Union's threat to
strike, the Respondent did nothing to avert a strike; (2)
despite the Union's request that the Respondent submit a
total contract proposal, the Respondent continued to
submit one-page or one-paragraph proposals; and (3) the
Respondent refused to modify its proposal that employ-
ees be paid for the work they performed rather than an
hourly rate.
Board law makes clear that a respondent may insist to
impasse on any proposal it deems reasonable, providing
that the proposal relates to a mandatory subject of bar-
gaining. The Act does not require that a respondent
modify proposals, even in the face of a threat to strike or
a strike itself. As long as parties are bargaining in good
faith, one-page or individual paragraph proposals are not
only often appropriate but are also frequently traditional
The Union moved to correct the official transcript. There being no
opposition, the motion is granted; and the transcript is amended accord-
ingly.
and practical. Indeed, without reviewing the negotiations
in detail, by the commencement of the strike, the Re-
spondent had made counterproposals on many of the
Union's suggestions, was expressing its opposition to
other proposals, and was bargaining. The major issue
throughout negotiations was whether employees would
be paid pursuant to the Respondent's tasks system,
whereby employees received a per diem amount for
completing their routes for pickups of garbage, no matter
how long they were required to service their routes, or
whether the employees should be paid an hourly rate, as
the Union proposed. These constituted two entirely dif-
ferent concepts of paying workers for their labor; and up
to the time of the strike, and even at the time of the
hearing, both Respondent and the Union maintained
equally unyielding positions, which, until resolved, pre-
vented the negotiators from making progress on many
other proposals.
Accordingly, I conclude there is nothing inherent in
the parties' bargaining which proves any violation of the
Act and I proceed to one of the earlier incidents which
allegedly affected the otherwise legal bargaining. Em-
ployee George Gabriel testified that John Lawson, the
Respondent's secretary-treasurer, at a monthly drivers'
safety meeting held on February 4, 1981, at the Joseph
Caleb Community Center, offered employees a 13-per-
cent wage increase and threatened that he would run the
Respondent's business as it had been run for years and
that he was not going to change anything. Employee
Gerry Pollard testified, however, that Lawson stated
that he had brought a proposal to the meeting, that the
employees were supposed to be getting a 13-1/2 percent
pay increase, and that he could not understand why the
employees would want to continue their support of the
Union when he was giving such an increase. Pollard in-
sisted that the Union and terms and conditions of em-
ployment constituted the sole subjects of discussion, even
to the extent of disavowing his earlier affidavit which in-
dicated that safety conditions were discussed. Employee
Ervin Ellison testified to a third scenario: that the meet-
ing on February 4 was actually held at the Holiday Inn
and that employees asked when they were going to get
their wage increase, to which Lawson replied that they
would get a 13-percent increase that they were "sup-
posed to be getting."2
Lawson denied that he made any mention of an in-
crease at the February 4 meeting, but conceded that he
had first discussed with employees the subject of a wage
increase in early February 1981, which might coincide
with the date of the safety meeting, and acknowledged
that a wage increase was a "likely topic of conversation"
engaged in by employees at safety meetings. His first
recollection of any such discussion at a meeting, howev-
er, was at a meeting on February 25 at the Miami
Springs Villa, when an employee said that he had heard
different rumors of what the Respondent's wage propos-
al was; and Lawson explained that the Respondent's
offer was 10 percent, across-the-board, plus a merit in-
2 Ellison also testified that Lawson opened the meeting with: "You
know why we are all here . . [to] come to agreement."
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crease, an offer that the Union had twice rejected. Two
of the Respondent's current employees corroborated that
no discussion of wage increases occurred on February 4.
However, Supervisor Edward Brown, the Respondent's
lead dispatcher, recalled Lawson's discussion of a 10-per-
cent, plus merit, increase, but could not recollect wheth-
er it took place at the February 4 meeting, or earlier, or
later. Further, he could recall no meeting at the Miami
Springs Villa as late as February 1981. Finally, Brown
recalled one employee asking Lawson whether an agree-
ment would ever be reached, to which Lawson replied
that he did not know.
For a variety of reasons, I am persuaded that Lawson
made none of the statements on February 4 which were
attributed to him. First, the varying recollections of the
General Counsel's witnesses do not constitute the model
of consistency; rather, Gabriel's and Pollard's narrations
are equally improbable, in different ways, neither hinting
at any reason which would motivate Lawson to engage
in any of the comments attributed to him. Moreover,
Ellison's testimony was that what he heard occurred at a
different meeting; indeed, what he testified to does not
amount to a violation of law and is closer to what
Lawson testified to. Second, the alleged proposed across-
the-board increase of 13 or 13-1/2 percent was not the
same as the Respondent later proposed at the bargaining
table. Although at one negotiating session, the Respond-
ent explained that the package might amount to an aver-
age of a 13-percent increase, many employees receiving
merit increases, no one on the union side, particularly
Gabriel, who was the principal employee representative,
mentioned the fact that Lawson had previously offered
13 percent to all employees, without qualification, and
now the Respondent was reneging on its offer. The lack
of response is surprising and leads me to find that
Lawson did not, at least as early as February 4, make the
offer attributed to him and, therefore, did not engage in
individual bargaining. Rather, I credit the denials of the
Respondent's witnesses, including two current employ-
ees, and find unpersuasive the differing recollections,
filled with inconsistencies, of the General Counsel's wit-
nesses.
Although the alleged 13-percent increase constitutes
the only allegation of prestrike individual bargaining,
Lawson's alleged statements that the Union was not
going to get him to run the Respondent's business any
differently from the manner it had been run for years
and that the Respondent would not sign a contract with
the Union constitute a recurrent theme throughout the
testimony of many of the General Counsel's witnesses.
The General Counsel and the Union argue that the effect
of such statements was to make futile further negotia-
tions because the Respondent's position was utterly firm
and intransigent.
The Respondent's alleged statements arose in a variety
of contexts and on numerous occasions and were all
denied by the Respondent's witnesses. Whether it is
probable that the statements were made rests, in part, on
the progress of negotiations. The parties in their first
three sessions, two in December 1980 and one on Janu-
ary 8, 1981, thoroughly reviewed the Union's initial con-
tract proposal, a form contract (which contained spaces
for amounts to be paid for pension and health and wel-
fare contributions and left open a minimum wage scale)
taken from an agreement which the Union had with a
different employer. Their fourth session on January 20
included a discussion of what would be the critical issue
in the negotiations-the Union's demand that employees
be paid an hourly rate contrasted with the Respondent's
insistence that it maintain its current task system--a dis-
pute which union organizer Tony Zivalich described as
"our work week versus their work week."
It was at the next negotiating session on February 12
that Lawson stated that the employees were expecting
their annual February raises3 and James C. Crosland, the
Respondent's attorney, made known the Respondent's
desire to implement the raises, which would consist of a
10-percent across-the-board interim increase, plus a con-
tinuation of merit increases, averaging about 7 to 9 per-
cent for employees who were eligible therefor. Howev-
er, Crosland made clear that this proposal was only an
interim one and its implementation would not preclude
further bargaining on wages or other economic benefits.
At the next negotiating session of February 20, 1981,
the interim wage increase was again raised, but Zivalich
flatly rejected it. After discussion of some other propos-
als and counterproposals, another of the Union's negotia-
tors, impatient with his perceived lack of progress, stated
that the negotiations were wasting the Respondent's
money and the Union's time and that the Union might as
well prepare picket signs. He requested that the Re-
spondent prepare its complete proposal and present its
final position at the next meeting, which was set for and
held on February 25. At that meeting, the Respondent
presented a formal written explanation of the task
system, to which Zivalich replied that the proposal was
a "gut issue" and that it was "totally unacceptable." Al-
though there was movement and some agreement on
other proposals during the morning of that day, the task
system was not further discussed. Before the parties re-
cessed for lunch, union attorney G. William Baab de-
manded "meaningful" proposal by the Respondent by
2:30 p.m. That afternoon, the demand for a "final posi-
tion" was renewed and Crosland explained that he found
it difficult to do so because the Union had never present-
ed any wage or fringe benefits proposal. Baab replied
that "Teamsters' policy was to secure agreement on all
substantive issues before discussing wages"; and Zivalich
added that it was "not meaningful to discuss wages until
we get this task system worked out. I could propose $20
an hour but it wouldn't make any difference."
That night, the Union held a meeting at which the
members voted to strike. What actually happened is sub-
ject to some debate, particularly because the reasons for
the strike vote, as testified to by Gabriel and Zivalich,
constituted the proof relied on by the General Counsel
and the Union to demonstrate that what occurred on
February 26 was an unfair labor practice strike and not
an economic strike. Before reaching that ultimate issue,
the testimony of Gabriel alone is helpful in resolving
3 I find that Lawson had spoken earlier to employees about the possi-
bility of raises, but I do not find that he did so in violation of the Act or
as stated by Gabriel and Pollard.
1182
INDUSTRIAL WASTE SERVICE
what unfair labor practice activity actually occurred
prior to February 25. He stated that four reasons gave
impetus to the Union's action. The first was the dis-
charge of an employee more than a half-year before. The
second was the Respondent's surface bargaining, not in
the sense complained of herein, but in terms of the inabil-
ity of the parties to reach agreement at the table because
of the Union's perception that the Respondent was not
bargaining in good faith because it was not agreeing with
the Union's position. The third was the Respondent's ap-
proach to various employees to pay bonuses to those
who refused to support the strike and who were willing
to work behind the Union's picket line.4 The fourth and
final reason was "hearsay and ... rumors" that the Re-
spondent would never sign an agreement (although Ga-
briel later recalled his own testimony that Casagrande
had allegedly made such a statement directly to him).
Based on these reasons, the Union's membership, testi-
fied Gabriel, authorized him to instruct Baab, who at-
tended the meeting, to file immediately unfair labor prac-
tice charges with the Board; and Baab did so on Febru-
ary 26. The charge that was filed, however, accused the
Respondent solely of refusing to bargain in good faith
and attempting to coerce employees, by bribes, from en-
gaging in protected concerted activities. Conspicuously
absent were the Respondent's alleged statements that
bargaining was futile and alleged threats that the Re-
spondent would never sign a contract. Although it may
be said that such were subsumed into an 8(a)(5) charge,
it appears more likely that the alleged statements and
threats were not separately charged as violations because
they were not mentioned by Gabriel on February 25 and
because they did not occur.
Furthermore, Gabriel's testimony on direct examina-
tion was the product of many leading questions and at-
tempts to refresh his recollection and, on cross-examina-
tion, he had forgotten some of the facts that he had testi-
fied to only on the day before-all of which leads me to
find him unreliable. That conclusion is bolstered by the
inconsistencies between his testimony and that of Pollard
and Ellison5 about the February 4 meeting and I credit
the denials of Lawson and employees Commodore Stew-
art and Henry White6 that the threats were made as al-
4 Gabriel identified employee Alfred Kitchen as one who was asked by
the Respondent to work behind the picket line. However, Kitchen testi-
fied that the first time he was asked to work was the morning after the
meeting.
s At the February 4 meeting, Ellison testified, one of the first events
that occurred was that an employee asked Lawson whether he was going
to sign a contract with the Union, to which Lawson responded: "No."
Upon further questioning, Ellison revised his narration by testifying that
an employee asked whether a contract had been signed and Lawson re-
peated the question, "Have I signed the contract?" At this point, another
employee asked whether the Respondent would sign a contract, and
Lawson said: "No." No other witness corroborated Ellison on either of
these exchanges; and, in light of the evident confusion of Ellison, even if
I credited him, it may well be that Lawson misunderstood the inquiry
and was merely answering that no contract had then been signed. In any
event, I credit Lawson's denial. I would be remiss if I did not add that I
find it improbable that any of the alleged questions were asked.
a Had White's testimony not otherwise been corroborated, I would not
have credited him because he demonstrated a general lack of recall about
the events at issue.
leged on February 4 and that they were mentioned at the
union meeting.
Accordingly, I dismiss the allegation of the complaint
pertaining to direct dealing with employees on February
4. I also find no credible testimony supporting the allega-
tions of the Respondent's threats that no contract would
be signed with the Union or that the Respondent would
never alter its methods of doing business. Much could be
written with respect to each individual incident alleged
in the complaint. Suffice it to say, first, that the Re-
spondent's conduct at the bargaining table evidenced a
good-faith attempt to accommodate numerous of the
Union's demands.7 The major dispute, however, in-
volved the manner in which the Respondent was willing
to compute its employees' wages and, because of the par-
ties' fundamental difference in approach, even the Union
had made no offer on wages and pension and welfare
benefits. It should not be incumbent solely on an employ-
er to offer a "complete contract," but that is one of the
contentions made by the General Counsel. On the basis
of the record herein, however, neither the Union nor the
Respondent deserves .criticism; they were simply unable
to agree and the Act requires neither party to accede to
the other's desires. NLRB v. American National Insurance
Co., 343 U.S. 395, 401-404 (1952). They must only listen
and honestly attempt to reach agreement, if that is possi-
ble. I find that both parties bargained in good faith.
By finding in particular that the Respondent was at-
tempting to reach an agreement, I find, in the circum-
stances herein, that it was improbable that, while seeking
an agreement at the bargaining table, its officers and rep-
resentatives were spouting to one and all that they had
no intention to reach any agreement, that they would
never sign a contract, and that they would close the
business before doing so. The proof is inadequate, in fact
wholly lacking, to support such a notion, and I reject all
testimony on that ground, as well as find a general lack
of consistency, clarity, and candor on the part of the
General Counsel's witnesses, as evidenced by the follow-
ing incidents:
(a) Gabriel, in an attempt to corroborate the testimony
of Pollard and Ellison regarding Lawson's unwillingness
to change the Respondent's method of business, stated
that an employee asked whether the Respondent would
change its insurance benefits and its method of paying
vacation benefits, to which Lawson allegedly replied that
he was not going to change anything. Gabriel believed
the question was asked by Kitchen, who had been previ-
ously called by the General Counsel as a witness and
who was asked nothing about the February 4 meeting. I
infer that his testimony would not have been favorable
For example, the Respondent had made compromises on the use of
seniority for layoff and recall and vacations, had made offers of an addi-
tional week of vacation to some employees and increased premiums for
health and welfare benefits coverage, and had made commitments on
dues checkoff and binding neutral arbitration. On other demands of the
Union, the parties were far apart simply because the Respondent could
not agree to the concept of the Union's proposals, to wit. the Union's
demand that employees have the right to honor all picket lines and that
no employee strike could be enjoined. On yet another demand, that for
health and welfare benefits, the Union was still evaluating the Respond-
ent's health and welfare benefits and had not decided what it wanted.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the General Counsel's case. In addition, I note that
Gabriel could not recall on cross-examination whether
Lawson's purported statement about his continuing to
run the Respondent as he had always run it occurred at
the February 4 meeting.
(b) On January 23, 1981, driver Ervin Ellison was sus-
pended for 3 days for negligently causing a truck to
overheat, causing permanent damage to its engine. Em-
ployee George Gabriel, allegedly as the person designat-
ed to handle employee grievances,8 met with the Re-
spondent's general manager, Jack Casagrande, to discuss
the suspension on or about that same day. During the
course of the conversation, Gabriel testified, he asked
Casagrande whether, if the employees got rid of the
Union and its two organizers, the employees could have
a contract with the Respondent and would the Respond-
ent sign it. Casagrande's answer varied, depending on
which, if any, of the three statements of Gabriel is be-
lieved: (1) that the Respondent was not going to sign any
contract; (2) that Casagrande would not sign any con-
tract with the employees or the Union; and (3) that Casa-
grande was not going to sign any contract with "us,"
pointedly omitting any reference to the Union.
The latter statement would appear to undercut the
complaint's allegation that the Act was violated because
the Respondent stated that it would not sign a contract
with the Union. Leaving that problem aside, I have
grave difficulty believing any of Gabriel's three narra-
tions. Implicit in the conversation is Gabriel's desire to
bypass the Union and make a contract directly between
the employees and the Respondent, but no rationale was
presented why Gabriel felt that course of action neces-
sary. Negotiations had begun only a month before, there
had been four negotiating sessions, and there appears no
reason for Gabriel's anxiety; nor could Gabriel recall
how he and Casagrande ever became involved in the
subject. I do not consider Casagrande a stupid man and
cannot understand why he would tell the leader of his
employees that he would not sign any contract with
anyone, while at the same time he also attended numer-
ous negotiating sessions which were purportedly aimed
at reaching such a contract. Further, if Casagrande made
the statement attributed to him, there seems little point in
the Union's having continued to meet with the Respond-
ent at the negotiating table. Instead, negotiations contin-
ued, and never once at the bargaining table did the
Union mention this statement nor did Gabriel ask Casa-
grande about it. Under all the circumstances, I credit Ca-
sagrande's denial and dismiss this allegation.
(c) Two allegations are based on partially overheard
conversations by Ellison and Pollard, wherein Lawson
and Casagrande, respectively, stated that the Respondent
would never enter into a contract with the Union. I find
Ellison's powers of recall minimal and find that the noise
of his operation of a gas pump, while his truck's motor
was running, did not permit him to overhear any conver-
sation. (This finding assumes that Lawson's car was not
in its usual parking place, which was so far away from
where Ellison stated he was standing as to make it im-
* Oabriel was also the chairman of the employees' negotiating commit-
tee.
possible for Ellison to overhear the conversation.) I
credit, in any event, Lawson's denial, including his com-
ment that he would have had no reason to make such a
statement. Furthermore, I do not credit Pollard, who tes-
tified that he overheard the comment while walking with
another employee on February 10. The Respondent dem-
onstrated that the other employee did not work on Feb-
ruary 10. While it may have been that Pollard referred
to an incorrect date, the General Counsel failed to intro-
dace testimony or evidence showing that possibility.
Without such a showing, I find that the incident was de-
liberately concocted to create allegations otherwise most
difficult to counter.
(d) Finally, there were allegations of and testimony re-
garding attempted bribes or payments to persuade em-
ployees to work behind the picket line or not to strike. I
found Kitchen to be the only fully candid employee wit-
ness called by the General Counsel. He testified (except
for the Wittken incident, discussed infra) that he was not
offered a bonus not to picket or to return to work and
that he overheard Lawson tell an employee who was
asking for a bonus that he could not give employees any
extra money. Lawson denied that he offered bribes or
extra money, consistent with what Kitchen heard; and I
credit both. Pollard also testified to being offered by Ca-
sagrande a payment of 2 days' sick leave, which the Re-
spondent had previously refused to give him. Casagrande
testified that employees earned sick leave days by work-
ing and that he had no reason to pay Pollard twice for
the same days he was out of work. I credit Casagrande's
explanation and denial, noting that Pollard never made
mention of this "bribe" when employees at the February
25 union meeting were discussing reasons for striking the
Respondent.
I am cognizant of and have often relied on NLRB v.
Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950):
"It is no reason for refusing to accept everything that a
witness says, because you do not believe all of it; nothing
is more common in all kinds of judicial decisions than to
believe some and not all." Unfortunately, I was wholly
unpersuaded by the demeanor of Ellison at the hearing,
the confusion of Gabriel, Pollard, and Ellison, the often
selective memory of Gabriel, and Pollard's lack of recol-
lection on cross-examination about Lawson's condemna-
tion of the Union. After thorough review of the record,
I remain unconvinced of the truthfulness and candor of
their testimony. Notwithstanding the arguments con-
tained in the Union's brief, there are points when mis-
statements of material facts are so frequent that a fact-
finder must conclude that there is evidenced more than
innocent and pardonable confusion. I credit the denials
of all of the Respondent's witnesses and credit none of
the alleged violations testified to as having occurred
prior to the commencement of the strike. I will recom-
mend that all such allegations be dismissed.
Therefore, I find and conclude that, prior to the strike,
there were no unfair labor practices committed and that
the strike could not have been an unfair labor practice
strike. The strike lasted from February 26 until May 30,
1981. On May 28, the Union made an unconditional offer
on behalf of the striking employees to return to work.
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INDUSTRIAL WASTE SERVICE
The Respondent was willing to reinstate strikers accord-
ing to seniority only as openings occurred, and numerous
employees were not immediately rehired. If the strike
had been converted into an unfair labor practice, the Re-
spondent would have had to reinstate all of its striking
employees immediately even if replacements for them
had been made. Mastro Plastics v. NLRB, 350 U.S. 270,
278 and fn. 8 (1956).
To demonstrate that the strike was converted into an
unfair labor practice strike, the complaint relies on two
acts of alleged illegal solicitation by the Respondent to
induce employees to return to work. Kitchen testified
that Supervisor Ralph Velocci telephoned him early on
February 26, the day the strike began, and asked Kitchen
whether he was going to come to work and would he
come to work. Velocci told Kitchen to call his work
partner and ask him to come to work. When Kitchen
protested that he would not cross a picket line, Velocci
said he would bring Kitchen's truck to him at any
place. Although Kitchen agreed to return to work, he
did not, despite further requests by Velocci.
The General Counsel contends that Velocci's solicita-
tion violated Section 8(a)(l) of the Act. I disagree. In
Texas Co., 93 NLRB 1358, 1360-61 (1951), enf. denied
on other grounds 198 F.2d 540 (9th Cir. 1952), the Board
held:
Absent a threat or a promise of benefit designed
to coerce the strikers into returning . . . the legality
of the Respondent's individual solicitation of the
strikers must be determined against the background
in which such solicitation was done. For, although
the Board has, in the past, found individual solicita-
tion of strikers violative of the Act, in all such cases
one or both of the following two factors has been
present: (I) The solicitation has constituted an inte-
gral part of a pattern of illegal opposition to the
purposes of the Act as evidenced by the Respond-
ent's entire course of conduct, or (2) the solicitation
has been conducted under circumstances, and in a
manner, reasonably calculated to undermine the
strikers' collective bargaining representative and to
demonstrate that the Respondent sought individual
rather than collective bargaining. [Footnotes omit-
ted.]
Thus, the noncoercive solicitation of individual strikers
to return to work is not per se violative of the Act.
American Mfg. Co. of Texas, 98 NLRB 226, 260 (1952);
Webb Wheel Division, 121 NLRB 1410, 1411 fn. 3 (1958);
American Steel Building Co., 208 NLRB 900, 912-913
(1974).
Although the General Counsel's position has some
appeal, if only because the Board has not seen fit to
overrule any of the authority the General Counsel relies
9 Kitchen's investigatory affidavit also recites Velocci's promise to
Kitchen that, when the strike was over, Velocci would show his appre-
ciation. Kitchen could not recall this at the hearing. Rather, he said that
Velocci offered extra work, which was available to employees both
before and during the strike, and that when Kitchen said that he had
heard that employees were getting extra money, Velocci denied that that
was so. In the circumstances. I find that Velocci offered no bonus, extra
money, bribe, or any other inducement to Kitchen to return to work.
on,' ° the Board's position is not as clear as one might
assume at first blush. In Camay Drilling Co., 254 NLRB
239 (1981), the Board noted that "in certain instances the
solicitation of employees to cross a picket line and work
during a strike is not violative of the Act . .. [but that
conclusion is warranted only in] the absence of a promise
of special benefit or a threat of detriment in the request.
[Citing Mosher Steel Co., 220 NLRB 336 (1975); Coca-
Cola Bottling Co. of Louisville, 166 NLRB 134, 135
(1967).]"" Because the employer's letter in Camay was
soon followed by a similar request with a threat of detri-
ment to an employee and occurred during the midst of
an unfair labor practice strike and within a context of
other violations of the Act, the Board found that the
letter violated Section 8(a)(1) of the Act. See also Cantor
Bros, Inc., 203 NLRB 774, 777-778 (1973).
Here, Velocci's telephone calls made no reference to
the Union, disparaging or otherwise. There is no pattern
of illegal opposition to the purposes of the Act; rather,
the Respondent's entire course of conduct was not ille-
gal. The solicitation was not conducted to undermine the
strikers' collective-bargaining representative; and the Re-
spondent was interested only in securing employees to
do its work, rather than "to demonstrate" that it sought
to bargain only individually with the employees and not
collectively with the Union. Bromine Division, 233
NLRB 253, 263 (1977). Accordingly, I conclude that this
allegation of the complaint should be dismissed.
The other solicitation, contrary to the Velocci inci-
dent, involved a direct bribe. Chester Wittken conceded
that in early March, shortly after the strike began, he of-
fered $300 to Kitchen and to other employees whom
Kitchen was asked to solicit, if they would return to
work. Kitchen agreed to talk with the other employees.
These facts are not in dispute, but the Respondent denies
that Wittken was its supervisor or agent.
Wittken was the general manager and one of the major
stockholders of a waste disposal company whose assets,
including routes, were purchased by the Respondent in
1979. Subsequently, he and another stockholder bought
back one of the routes and commenced serving that
route under a different company. When Casagrande
became concerned in mid-February 1981 that a strike
was a possibility, he called Wittken, among others, to ask
him to work one of the routes formerly run by his
former company. Wittken agreed to do so to ensure that
the Respondent did not lose its routes to its competitors
and that the Respondent would receive sufficient moneys
to continue to make its monthly payments to Wittken
and his partners.
It was while he was an unpaid route driver that Witt-
ken made his offer to Kitchen. There is no evidence that
Wittken performed any supervisory functions for the Re-
spondent, and I conclude that he is not a supervisor
within the meaning of Section 2(11) of the Act. Nor is
there any evidence that he was directly or indirectly au-
thorized by the Respondent to make the offer to Kitch-
i0 See, e.g., General Electric Co. v. NLRB. 40(X F d 713. 720t 71 (5thl
Cir. 1968).
" See also NLRB v. Robin American Corp, h54 F:.2d 1022. 1026 (5th
Cir. 1981).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
en, a fact that both Wittken and Casagrande denied.
Indeed, Kitchen testified that Wittken made clear that he
was making the offer solely because it would help him
get his loan repaid and was not attempting to entice
Kitchen for the Respondent's benefit. I conclude that the
Respondent is not legally responsible for Wittken's offers
and has not violated the Act. Westward Ho Hotel, 251
NLRB 1199, 1206-08 (1980); Longshoremen (Sunset
Line), 79 NLRB 1487, 1509 (1948); Jacobo Marti & Sons,
Inc., 264 NLRB 30 fn. 1 (1982).
There is an additional allegation which requires only
brief mention. The complaint alleges that a March 6
letter from Casagrande threatened strikers with dis-
charge, to wit, "The Company also has the right to hire
new employees to do your jobs and when the strike is
over we are not required to discharge the new employ-
ees in order to take striking employees back." The
theory is that the strikers were unfair labor practice
strikers and that an employer may not threaten to dis-
charge them. Because I have found that the employees
were economic strikers, the letter accurately states the
Respondent's rights. To the extent that the General
Counsel's brief alleges that the letter also constituted an
illegal direct appeal to employees to return to work, that
contention is rejected for the reasons previously stated.
Accordingly, there is nothing that occurred during the
strike which converted the economic strike into an unfair
labor practice strike. I turn then to the remaining allega-
tions, which concern the announcement of and the later
granting of two unilateral increases of wages, in late No-
vember 1981 or early December and the other in early
March 1982, each of 10 percent across-the-board and a
merit increase of from 7 to 9 percent to certain employ-
ees, the announcement in February 1982 that the Re-
spondent was contemplating the institution of a bonus
and pension plan, and the unilateral institution of a bonus
plan in April 1982. For a variety of reasons, the Re-
spondent's conduct does not violate the Act in any re-
spect.
The November 1981 increase of wages was the same
as the Respondent had proposed in February 1981, and
the Union had rejected. The last negotiations between
the Union and the Respondent occurred on April 23,
1981. By then, if not before, the parties were clearly at
an impasse. The Respondent, therefore, was entitled to
grant the same increase which was its last offer and
which the Union had previously rejected. NLRB v. Katz,
369 U.S. 736 (1962); Midwest Casting Corp., 194 NLRB
523 (1971).
The February 1982 wage increase, the effectuation of
the bonus plan, and the November 1981 promises are
valid for different reasons. The Union's certification year
ended on October 28, 1981. By then, Respondent had a
good-faith doubt that the Union continued to represent a
majority of its employees. The latter is grounded on the
Respondent's receipt on September 11, 1981, of a petition
with II employees' signatures,12 stating: "We don't
want the Union. What we want is what belongs to us.
Our raises long waited."
The first sentence suffices to give Respondent a good-
faith doubt that the Union no longer represented a ma-
jority of its employees.' 3 Because the Respondent's as-
sertion of doubt was raised in a context free of unfair
labor practices, it follows that, at the end of the certifica-
tion year, the Respondent was no longer obliged to bar-
gain with the Union and could lawfully unilaterally
change terms and conditions of employment. KSD-AM
Radio, 262 NLRB 687 (1982).
Accordingly, I find that the Respondent has not vio-
lated the Act in any respect. Upon the above findings of
fact and conclusions of law, and the entire record in this
proceeding, including my observation of the demeanor of
the witnesses as they testified, and my consideration of
the briefs filed by all parties, and pursuant to Section
10(c) of the Act, I issue the following recommended
ORDER' 4
The complaints herein are hereby dismissed in their
entireties.
" The Respondent then had approximately 140 employees.
's Respondent filed a decertification petition on November 16, 1981.
" If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1186