National Automobile and Casualty Insurance Co.

National Labor Relations Board - Board Decisions

Sep 15, 1972

199 N.L.R.B. 91 (N.L.R.B. 1972)

NATL. AUTOMOBILE AND CASUALTY 91
National Automobile and Casualty Insurance Co. and
Service & Hospital Employees Union , Local 399,
Service & Hospital Employees International Union,
AFL-CIO. Case 21-CA-9873
September 15, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 29, 1971, Trial Examiner David E.
Davis issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in cer-
tain conduct in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, and also
that Respondent had not engaged in other conduct
alleged to be violative of Section 8(a)(1) and (5), and
recommending that the latter allegations be dis-
missed . He further found that the General Counsel
had not established a prima facie case of "surface"
bargaining and recommended dismissal of that alle-
gation. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision with a
supporting brief, and Respondent filed an answering
brief.
Thereafter, on February 29, 1972, the National
Labor Relations Board issued its order reopening the
record and remanding the proceeding to the Regional
Director, in which the Board, while holding in abey-
ance its rulings on the other General Counsel's excep-
tions, found merit in the General Counsel's
exceptions to the Trial Examiner's finding that the
evidence presented did not establish a prima facie case
of bad-faith bargaining. The Trial Examiner found
that Respondent committed a number of violations of
Section 8(a)(1), including incidents both preceding
and following the abortive negotiations, in which
Respondent's supervisors offered employees, if they
rejected or withheld their support from the Union, a
wage increase larger than that offered to the Union
during negotiations, and in one of which Respondent
contrasted its rigid 10-cent increase bargaining stance
with a larger increase which could be obtained if the
Union were ousted. Consequently, the Board was of
the opinion that in view of the 8(a)(1) violations which
the Trial Examiner found and to which no exceptions
were filed, the total factual context indicated by the
testimony presented by the General Counsel rendered
Respondent 's intransigent economic position at the
bargaining table sufficiently indicative of bad faith so
as to establish a prima facie case of an 8(a)(5) viola-
tion. Accordingly, the Board directed that a further
hearing be held for the purpose of permitting Respon-
dent to introduce certain evidence relevant to its de-
fense against the allegation, and that upon the conclu-
sion of the reopened hearing the Trial Examiner pre-
pare a Supplemental Decision. Pursuant to a notice
issued by the Regional Director, a further hearing was
held where all parties appeared and were afforded full
opportunity to litigate the subject of the remand.
On June 1, 1972, the Trial Examiner issued his
Supplemental Decision, finding that Respondent did
not engage in bad-faith bargaining and recom-
mending that the 8(a)(5) allegation be dismissed.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Supplemental Decision and a
supporting brief.
Pursuant to the provision of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record, the Trial
Examiner's Decision, and the Supplemental Decision
in light of the exceptions and briefs and has decided
to affirm the Trial Examiner's rulings, findings, and
conclusions to the extent consistent herewith.
With respect to the 8(a)(5) "surface" bargaining
allegation,' the facts developed at the first hearing
showed that Respondent, at least as to the economic
issues, approached bargaining with no sincere desire
to reach agreement. For example, the testimony indi-
cated that Respondent's adamant position on wages
was that the employees would get merely what they
had been receiving in the past, and that Respondent
refused to engage in any discussions with respect to
health and welfare plans, holidays, vacations, sick
leave, and a pension plan. Indeed, it was this intransi-
gent position, especially when viewed in light of the
other 8(a)(1) conduct to which no exceptions were
filed, that served as the basis for our finding that a
prima facie case had been established. Upon remand,
however, Respondent elected not to offer any evi-
dence in defense of the allegation.' Nevertheless, the
Trial Examiner erroneously proceeded to reevaluate
evidence which had been presented in the first hearing
(and, obviously, which served as part of our finding
i We agree with the Trial Examiner that Respondent engaged in threats,
promises of benefits if the employees rejected the Union , and interrogation,
all in violation of Sec 8(a)(I) of the Act In addition , while the Trial Examin-
er found that Supervisor Oberto Madrigal questioned employee Eliza Mc-
Knight as to how she voted in the election , he faded to conclude that such
conduct was unlawful , In our opinion , the interrogation violated Sec 8(a)(I)
of the Act, and we shall order Respondent to cease and desist therefrom.
Furthermore , the Trial Examiner found that Respondent violated Sec . 8(a)(1)
by threatening employees with discharge if they selected the Union, but
inadvertently failed to provide a remedy for that violation in the Order, we
shall order Respondent to cease and desist therefrom
2 While Respondent did present evidence that further negotiation sessions
were held after the close of the earlier hearing, such evidence is irrelevant to
the allegation made by the General Counsel that Respondent was bargaining
in bad faith during the first four bargaining sessions Accordingly , we do not
consider that evidence on the question of whether the General Counsel's
prima facie case has been rebutted
199 NLRB No. 1
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a prima facie case) and still concluded that the
"General Counsel has failed to sustain the required
burden of proof with regard to the Section 8(a)(5)
allegations of the complaint."
In our opinion, the Trial Examiner has failed to
attribute to the phrase `prima facie" its full legal in=
port and, therefore, has reached an incorrect conclu-
sion. Fundamentally, a prima facie case is one which
is established by sufficient evidence and can be
overcome only by a preponderance of competent,
credible rebutting evidence. Thus, once the General
Counsel establishes a prima facie case, the burden of
going forward with the evidence shifts to the respon-
dent. If respondent "fails to come forward with any
evidence, but rests upon the record as made by the
General Counsel here, General Counsel has sustained
his burden of proof on this issue ...."3 In the present
case, Respondent declined to offer any evidence
whatsoever in defense of the allegation and we there-
fore conclude that the General Counsel's prima facie
case has not been rebutted. Under these circum-
stances, we find that Respondent engaged in bad-
faith bargaining in violation of Section 8(a)(5) and (1)
of the Act, and we shall order Respondent to cease
and desist therefrom and to bargain with the Union
in good faith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Na-
tional Automobile and Casualty Insurance Co., its
officers, agents , successors , and assigns shall:
1. Cease and desist from:
(a) Threatening employees with discharge, with
more arduous working conditions , or with smaller
wage increases if they select or adhere to Service &
Hospital Employees Union, Local 399, Service &
Hospital Employees International Union , AFL-CIO,
or any other labor organization , as their collective-
bargaining representative.
(b) Promising employees a 25-cent-per-hour
wage increase if they reject the aforesaid labor organi-
zation as their bargaining representative.
(c) Interrogating employees concerning their un-
ion sympathies.
(d) Refusing to bargain with the aforesaid labor
organization as the exclusive representative of its em-
ployees in the following unit : All maintenance and
custodial employees , elevator operators , maids, jani-
tors , and waxers employed at Respondent 's facility
located at 639 South Spring Street , Los Angeles, Cali-
fornia ; excluding all office clerical employees , profes-
sional employees , guards , and supervisors as defined
in the Act.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form labor unions,
to join or assist the above-named Union or any other
labor organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the
above-named Union, as the exclusive representative
of all employees in the unit set forth above and, if an
understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its building in Los Angeles, California,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region 21, after being duly signed
by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt
thereof and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
3 Preston Products Company, Inc, 158 NLRB 322, 345.
4 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ployees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection.
WE WILL NOT threaten you with discharge,
NATL. AUTOMOBILE AND CASUALTY 93
with more and harder work , or with smaller wage
increases because you choose Service & Hospital
Employees Union , Local 399, Service & Hospital
Employees International Union , AFL-CIO, or
any other labor organization , as your collective-
bargaining representative.
WE WILL NOT promise you a 25-cent-per-hour
wage increase on the condition that you reject or
withdraw your support from the Union.
WE WILL NOT ask you whether or not you are
in favor of the Union.
WE WILL NOT refuse to bargain in good faith
with the above -named labor organization as the
exclusive representative of our employees in the
following unit:
All maintenance and custodial employ-
ees, elevator operators, maids, janitors, and
waxers employed at Respondent 's facility lo-
cated at 639 South Spring Street , Los Angeles,
California ; excluding all office clerical em-
ployees , professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of their rights to form, join, or
assist a labor organization of their choice or to
refrain from any or all such activity.
WE WILL bargain in good faith with the
above-named Union on wages , hours , and condi-
tions of employment , and any agreement we
reach will be put in writing and signed.
NATIONAL AUTOMOBILE AND CA-
SUALTY INSURANCE CO
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
The Remand
DAVID E. DAVIS , Trial Examiner : This case was con-
ducted before me on August 3 and 4, 1971. At the conclu-
sion of the General Counsel's case and upon motion of
Respondent's counsel that the General Counsel had failed
to make out a prima facie case on those allegations of the
complaint which alleged that Respondent had failed to bar-
gain in good faith or had engaged in surface bargaining, I
ruled in favor of Respondent and dismissed the 8(a)(5) alle-
gations of the complaint. I reaffirmed my oral ruling on this
aspect of the case in my written Decision issued on October
29, 1971.
Upon the General Counsel's exceptions to the Trial
Examiner's Decision in which it was recommended that the
8(a)(5) allegations be dismissed, the National Labor Rela-
tions Board reversed the Trial Examiner's ruling as de-
scribed above. In reversing the Trial Examiner, the Board
found "that the total factual context indicated by the testi-
mony presented by the General Counsel thus renders
Respondent's intransigent economic position at the bar-
gaining table sufficiently indicative of bad faith so as to
have established a prima facie t case of a Section 8(a)(5)
violation." The Board therefore remanded the proceeding
to the Trial Examiner for the taking of further evidence
relating to the "surface" bargaining allegations.
Pursuant to the Board's remand, a hearing was con-
ducted before me at Los Angeles, California, on April 11,
1972. Counsel appearing in behalf of Respondent stated
and then repeated under oath that since the close of the
earlier hearing, August 24, 1971, bargaining sessions be-
tween the parties have been conducted and are continuing
to be held; that there has been compliance with all orders
of the Board with respect to posting of notices and that there
have been no acts since then in violation of the Act. The
evidence thus adduced was uncontroverted. On cross-exam-
ination, the General Counsel brought out that no collective-
bargaining agreement has been consummated; that the last
bargaining session was on March 2, 1972, and that at the
time of the hearing no further meeting had been scheduled.
With the conclusion of the foregoing recitation by counsel
for Respondent, the parties rested and stated that they
would submit written briefs. A comprehensive written brief
has been received from counsel for Respondent while the
General Counsel submitted a brief urging the Trial Examin-
er to issue a Decision finding that Respondent was in viola-
tion of Section 8(a)(5) of the Act.
Upon the record in this case, including the evidence
adduced at both hearings, the demeanor of witnesses and
the briefs filed at the conclusion of both hearings, I make
the following:
Findings and Conclusions
A. Preliminary Statement
Clearly, I am bound by the Board's reversal of my
ruling that the General Counsel failed to make out a prima
facie case on the "surface" bargaining allegations of the
complaint. Acknowledgement of error , however, is not an
obligatory requirement . Nevertheless , it is now apparent to
1 Counsel for Respondent erroneously regards the italicizing here as dem-
onstrating emphasis I regard the italicizing as routine where Latin phrases
are employed. I have for this reason italicized the phrase , "prima facie"
throughout
94' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me that my ruling failed to attribute to the phrase `prima
facie" its full technical and legal import . Accordingly, there
remains as the sole issue whether or not the evidence viewed
as a whole warrants a finding that Respondent failed to
bargain in good faith by engaging in "surface" bargaining.
B. The General Counsel 's Contentions
In his brief submitted after the close of the remanded
hearing, the General Counsel argues that inasmuch as a
prima facie case has been established it was incumbent upon
Respondent to present its evidence with respect to any de-
fense thereto and that as no evidence was presented the
record is devoid of any evidence detracting from the Gener-
al Counsel 's case . I do not agree . As will appear below, I
find that Respondent did represent relevant evidence at the
remanded hearing which bears upon the issues . I also find
considerable evidence in the earlier hearing which tends to
overcome the General Counsel's prima facie case.
C. Respondent's Contentions
In its brief submitted at the conclusion of the remanded
hearing , Respondent reviewed the evidence adduced at the
earlier hearing and calls attention to General Counsel's Ex-
hibits 3 , 5, 6, and 8 . It is also argued that the bargaining
sessions held in January and February , 1971, concerning
which the Union 's chief negotiator , Ruggerio, testified, es-
tablished Respondent's good-faith approach and negated
the inference of "surface" bargaining. It is further argued
that the Union rather than Respondent exhibited bad faith
in its bargaining approach because it failed to fulfill its
promise to "check out" certain items discussed and did not
bring up for further discussion matters upon which it had
placed a "hold." Finally, Respondent calls attention to the
fact that it was the Union , not Respondent , who walked out
of the bargaining meeting on February 16, 1971.
Respondent's beef, however, did not attempt to reply to the
Board 's findings with regard to Respondent 's intransigent
economic position.
D. Analysis and Conclusions
It is readily apparent that Madden , Respondent's ne-
gotiator, adopted a rigid stance, as the Board found, with
regard to an increase in wage rates limited to 10 cents per
hour . It is also true and I have found that the evidence
established that Holbert , 3 weeks before the union election,
promised employees a 25-cent wage increase if the employ-
ees voted against the Union . I have also found that Madri-
gal made similar statements to Washington in March, 1971.
However, both Holbert and Madrigal are minor supervisors
who did not participate nor had any influence on the bar-
gaining process . Bozanich, the one supervisor who did par-
ticipate in the bargaining session , made no such promises.
In my earlier decision , I found that Bozanich did tell em-
ployees that if the Union were selected, work requirements
would be more severe . I did not then and do not now find
that Bozanich knew or authorized Holbert and Madrigal to
offer a 25-cent-per-hour increase if the Union was defeated.
I, therefore , again find that Holbert 's and Madrigal's state-
ments do not reflect the correct or authorized position of
Respondent with regard to collective bargaining.
Without unduly lengthening this Decision , I find that
Madden engaged in good -faith bargaining with a genuine
intention to consummate an agreement . This is indicated by
the many concessions , counteroffers and accommodations
Madden made throughout the bargaining sessions. I am
persuaded that Madden and Bozanich, while unwilling to
offer more than a 10-cent wage increase , were not parties to,
nor had knowledge of, a 25-cent wage offer to union defec-
tors by Holbert and/or Madrigal. As they were the respon-
sible negotiators for Respondent, I find that Respondent
was not engaged in bad-faith bargaining or "surface" bar-
gaining but did engage in hard bargaining designed to se-
cure a labor agreement on terms favorable to Respondent.
I believe the record demonstrates that Respondent did
not procrastinate and consume bargaining time on frivolous
and extraneous matters; that it continually made contribu-
tions to the solution of problems; that it bargained in a
meaningful manner on all items proposed by the Union;
and that it submitted comprehensive and purposeful coun-
teroffers. I conclude, therefore, that the General Counsel
has failed to sustain the required burden of proof with re-
gard to the Section 8(a)(5) allegations of the complaint.
I therefore reiterate my recommendation to the Board
that the 8(a)(5) allegations be dismissed. Accordingly, I re-
affirm the "Conclusions of Law, the Order and Notice to
Employees" set out in my original Decision.