Puccinelli Packing Co.

National Labor Relations Board - Board Decisions

Jul 12, 1957

118 N.L.R.B. 649 (N.L.R.B. 1957)

PUCCINELLI PACKING COMPANY 649
departments , employees covered by other union agreements"-4 pro -
fessional employees , guards and house detectives, the secretary to the
store manager, the paymaster , department managers , the personnel
supervisor , and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
14 The Employer has current collective -bargaining agreements covering the following units,
among others : Meatcutters, apprentices, journeymen, meat wrappers, and butcher work-
men at the Hammond and Gary stores ; operating engineers at the Hammond and Gary
stores ; electrical workers at all stores employing such employees except the Rockford
store ; and shipping and receiving clerks, warehousemen , truckdrivers , and truck helpers at
the Hammond base.
Puccinelli Packing Company and Cannery Warehousemen, Food
Processors, Drivers, Helpers, Local No. 748, AFL-CIO. Case
No. 20-CA.-1182. July 12,1957
DECISION AND ORDER
On September 21, 1956, Trial Examiner James R. Hemingway, is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices in violation of Section 8 (a) (1) and 8 (a) (5) of
the Act, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings of the Trial Examiner are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and support-
ing brief, and the entire record in this case and adopts the findings of
the Trial Examiner only to the extent that they are consistent with the
findings herein made.
The Trial Examiner found that on August 25 and 30, 1955, and
thereafter, the Respondent refused within the meaning of Section
8 (a) (5) of the Act to bargain with the Cannery Warehousemen,.
Food Processors, Drivers, Helpers, Local No. 748, AFL-CIO, herein
called the Union. For the reasons set forth below we do not agree.
Briefly stated the facts are as follows : On September 11, 1951, the
Union was certified as the bargaining representative of the Respond-
ent's employees, and at all times since has been the exclusive bargain-
ing representative of these employees. Thereafter the Respondent
and the Union engaged in collective bargaining, but as of July 1954,
had not agreed on contract terms. In July 1954, King, the union
president, delivered a proposed contract to Feehan, the Respondent's
118 NLRB No. 73.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent (California Association of Employers, herein called CAE, was
the Respondent's actual bargaining agent; Feehan was CAE's em-
ployee). There was some controversy over the applicability of this
proposal to the Respondent's business, and in December 1954, the
Union submitted another proposed agreement.' In December 1954,
King and Feehan, together with Commissioner Ralph Patterson of
the Federal Mediation and Conciliation Service, met in Feehan's office.
At this meeting, the Respondent accepted certain sections of the pro-
pose agreement, and rejected, or passed for further consideration cer-
tain others.' The parties met again in January 1955. Their dis-
cussion covered sections 4, 5, 6, and 7 and the Respondent offered
counterproposals on sections 4, 5, and 7 dealing with workday and
workweek, overtime, and holidays, respectively. The counterpro-
posals were uniformly rejected by King.
At the next meeting, March 16, 1955, Feehan accepted sections 1
(with the exception of a paragraph dealing with maintenance of
membership), 3, 13, 22, 23, and section 9, in part, and agreed to submit
additional counterproposals on certain other sections. At a meeting
held on March 23, 1955, the parties discussed sections 7 and 8. Feehan
again offered a counterproposal on section 7, which was rejected by
King. On section 8, dealing with grievance procedure, Feehan re-
quested a substitute proposal that would determine a greater area for
employer prerogative. The parties met again on March 28, 1955, and
discussed sections 4, 5, and 9. Feehan offered counterproposals on
these sections which were rejected by King. Feehan then requested a
letter from the Union setting forth the Union's position with respect to
all sections previously discussed on which the parties had not agreed.
At a meeting on May 4, 1955, Feehan referred to the letter requested on
March 28; but King denied promising such a letter, and, instead,
requested counterproposals.
On or about May 10, 1955, the Union mailed a revised agreement to
the Respondent. This agreement contained the changes that the
parties had mutually agreed upon up to that time; but with the
exceptions of these few changes, the Union's proposed agreement was
"I Section 6 of this proposed agreement provided that minimum wages shall be those set
forth in schedule A attached thereto. No wage schedule was attached. By separate letter,
the Union advised the Respondent that certain sections of the California Processors and
Growers contract, providing for wages on a "bracket basis," would be applicable to the
Respondent ' s operation . This letter , however, did not indicate what job classifications
would fall within the brackets. Thus, it appears that section 6 of the Union's proposed
-contract was not the sort that could ordinarily be expected to have been accepted.
2 Patterson attended all meetings except those held on January 18 and May 23, 1955.
3 Section 2 provided for a central authority for hiring and firing. Feehan suggested that
all hiring and firing be continued as in the past , i. e., that foremen and foreladies do all
hiring and firing. In the subsequent proposal submitted by the Union in May 1955 , section
2 was changed to read as suggested by Feehan.
At the December 1954 meeting , the Respondent accepted sections 14, 15 , 16, 17, 18,
24, 25, and had no basic objection to section 23, but requested a full definition of its
'meaning.
PUCCINELLI PACKING COMPANY 651
for all practical purposes the same as that submitted in December
1954. The parties next met on May 23, 1955 . Feehan mentioned the
similarity of the Union 's December and May proposals, and ques-
tioned the point of presenting the Union with new counterproposals
if the Union was going to remain adamant as it had in the past.
Feehan quoted King as saying that if Feehan , "had any pride in pen-
manship, or authorship that he [Feehan] could write counterproposals
to him [King] and he would look at them and study them, but he had
no distance to go . He [King] had his basic agreement that was in
effect, and he was not going to make any changes from it." King
conceded that he might have made such a statement . In any event,
at King's request , Feehan agreed to submit counterproposals. There
was no time set for the presentation of these proposals , nor is it clear
from the record as to what the counterproposals would cover. In
.dune 1955 King wrote Feehan requesting the counterproposals.
Feehan did not respond to this letter , but through Patterson a meeting
was set for August 25, 1955. Summarizing , as of May 23, 1955,
Feehan had accepted , as proposed by the Union, 11 sections 4 of the
26-section proposed contract ; 1 section as changed; and had accepted
in part 3 other sections .5 He had also offered counterproposals on
five sections,' and in some instances , these counterproposals were
offered several times, but of these counterproposals only part of one
was accepted by the Union. The record shows that the parties had
not discussed , or had only touched upon , certain other sections of the
contract.7
The parties next met on August 25 , 1955, at which time Feehan did
not present any counterproposals . Feehan testified that "they went
oover" the Union 's proposed contract , and that King stated that he
would not change any of the proposed contract terms . Feehan also
testified that they discussed the worthtivhileness of his making further
counterproposals in view of the adamant position the Union had
taken. However , as a result of the discussion , Feehan agreed to have
counterproposals for the Union on August 30.
On the scheduled date, August 30, Feehan first met with King.
According to King's credited testimony , Feehan stated that he
[Feehan] did not have it counterproposal ; and that Mr . Puccinelli
would not allow him to present a counterproposal . King testified spe-
cifically : "He [Feehan] said that, he told Mr. Patterson and myself
that even though he had-that Puccinelli allowed him to present the
counterproposal , he would have probably wadded it up and throwed it
in the wastepaper basket. " Like the Trial Examiner we interpret this
to mean that the Union would have thrown the counterproposals in
4 Sections 3, 13, 14, 15, 16, 17, 18, 22 , 23, 24, and 25.
5 Sections 1, 7, and 9.
9 Sections 4, 5, 7, 8, and 9.
, Sections 6, 10, 11, 12 , 19, 20 , 21, and 26. At one point in King's testimony , he stated
that section 10 had been accepted by the Respondent.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the wastepaper basket. King testified further, that Feehan said that,
he [Feehan] was mad at the "old man," meaning Puccinelli, and that
he was going to recommend that CAE drop the Respondent as a-
client.8
Following this meeting, Feehan met with Torreano, the Union's
business agent. According to Torreano's credited testimony, Feehan
stated that he "Wasn't getting anywhere with Mr. Puccinelli. I
believe he said he couldn't get an offer from him. . . . He said he
wasn't getting anywhere with Mr. Puccinelli and couldn't negotiate a
contract. That was it. He said Mr. Puccinelli did not want any-
thing to do with the Union." Torreano further quoted Feehan as
stating that "Your best shot is to go to the National Labor Relations
Board and file some charges against Mr. Puccinelli. . . . He was going
to recommend to the CAE that they cancel them out as a client."
Torreano further testified that he told King before the August 30
meeting that this was to be the last meeting, that "if they didn't get
along then we would file some charges, we would take economic action
against them, or whatever we would do." In explaining this state
ment, Torreano testified that he had meant that if the Respondent
did not agree to what the Union wanted, then the Union was going
to file charges or take economic action.
Upon these facts the Trial Examiner concluded that :
In the setting of this case, I am led to the conclusion that Feehan's
appearance at the August 25 and 30, 1955, meetings without
counterproposals and on August 30 with expressions indicating
an end of negotiations demonstrated an intransigent attitude and
a fixed purpose on the part of the Respondent to avoid reaching
any agreement with the Union. Such evidence gives support to
King's testimony that Feehan told him that the Respondent would
not let him make counterproposals and I find that this was the
case. Upon the entire record, therefore, I find that on August
25 and 30, 1955, and thereafter, the Respondent refused to bargain
with the Union... .
It thus appears that the Trial Examiner's conclusion in this case is
predicated on three elements: (1) Feehan's failure to offer counter-
proposals at the August 25 and 30 meetings, as promised; (2) Feehan's
statements at the August 30 meeting, which, according to the
Examiner, indicated "an end of negotiations"; and (3) "the setting of
the case"-i. e. the history of the negotiations between the parties as
summarized above.
8In referring to the August 30 meeting , King testified that on that day Feehan ap-
peared to be very irritated and agitated . He also testified "we had fairly peaceful negoti-
ations, in fact , very peaceful, and got along very well during the negotiations and I felt
that Mr. Feehan was honest in his intent to come up with a counterproposal on this date.
I think , I really believe , that he intended to, when Mr. Puccinelli wouldn't let him, naturally
he was agitated."
PUCCINELLI PACKING COMPANY 653
As to the Respondent's failure to submit counterproposals, although
it is true that Feehan did not present counterproposals as he had
promised, we believe that, in the circumstances of this case, there is no
reason to find that the Respondent thereby violated the Act. We note
firstly that Section 8 (d) specifically provides that the obligation
imposed by the Act "to bargain collectively" does not compel a party
to bargaining negotiations to agree to a proposal or require the
making of a concession. The Act, therefore, did not require the Re-
spondent either to agree to the Union's proposed contract terms or
to make counterproposals to them in the form of concessions. The
Respondent's promise to supply the Union with counterproposals
appears in this context then to have been an undertaking assumed,
not under any compulsion of law, but voluntarily in the course of its
negotiations with the Union; and the Respondent's failure to fulfill
its promise cannot be treated as a per se violation of the Act,' but
rather must be tested against the usual standard of good faith.
We hold that the Respondent's failure to submit the promised
counterproposals did not amount to a lack of good faith in bargaining.
We so hold because it appears to us, as the record shows it also ap-
peared to the Respondent, that the submission of further proposals
to the Union at the stage which the negotiations had reached in May
1955 would have been nothing more than an exercise in futility. For
it appears from the evidence that Feehan had kept the Respondent
informed on the progress of the negotiations. The Respondent thus
necessarily knew that Feehan in the past had submitted counter-
proposals to the Union, which the Union had rejected in practically
all instances ; and the Respondent was also aware of the fact that the
Union had in the course of the negotiations been unwilling to recede
from its original proposals. That the Respondent in these circum-
stances would not allow Feehan to fulfill his promise was, in our
opinion, nothing more than a recognition on the Respondent's part of
the Union's adamancy in bargaining and the latter's consistent re-
jection of " the Respondent's earlier proposals. The Respondent's
belief in the futility of new submissions was clearly expressed by
Feehan when, on August 30, he told King that the Respondent be-
lieved that any new proposals would be thrown in the wastepaper
basket.
9 The complaint alleged an unlawful refusal to bargain "in that ( a) Respondent, on or
about August 25, 1955, failed to submit counterproposals as it had agreed ; ( b) Respond.
ent instructed his representatives not to submit counterproposals ." The Respondent con-
tends that the quoted portion limited the complaint to the conduct specified therein, and
that since conduct in and of itself is not an unfair labor practice , the Trial Examiner should
have granted the Respondent 's motion to dismiss. The Trial Examiner held that the
quoted portion of the complaint was "a pleading of evidentiary matter rather than the un-
fair labor practice itself, since it is the refusal to bargain , however evidenced , which consti-
tutes a violation of the Act." In view of our decision herein, we do not pass upon the Trial
Examiner 's holding in this respect.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Feehan's statements at the August 30 meeting, we do not
construe his remarks as indicating an end of negotiations, as did the
Examiner. It is true that Feehan expressed his personal displeasure
with the Respondent's refusal to allow him to make any new pro-
posals; it is also true that Feehan, apparently acting beyond the
scope of his agency, gratuitously advised the Union to bring the
matter before this Board. But it is also clear that Feehan did not
say, either directly or implieclly, that the Respondent had told him
that he, the Respondent, would not continue to meet with the Union
and discuss their differences, or that the Respondent did not want to
have anything to do with the Union. At most Feehan's remarks re-
flected his subjective appraisal of Puccinelli's attitude, and as such
they are neither binding upon the Respondent nor dispositive of the
question of his good faith. Moreover, if any onus attaches for the
breaking off of the discussions after the August 30 meeting, it would
appear to attach to the Union. For it is evident, as indicated above
by the quoted remarks of Torreano to King, that the Union had
decided before the August 30 meeting that that meeting would be the
last unless the Respondent accepted the Union's terms.
Furthermore, even if the so-called "setting of the case," i. e., the
events which occurred prior to August 24, 1955, or 6 months before
the filing of the charge herein, were held to be admissible and were
considered 10 we are not persuaded that they would establish that the
Respondent by his conduct on August 25 and 30 violated Section 8
(a) (5) of the Act. Certainly, nothing that transpired before these
dates indicates that the Respondent was not bargaining in good faith
with the Union. It is true that an agreement had not been reached
after many months of negotiations. But the blame for this, if any
there was, was no more the Respondent's than the Union's. Both par-
ties appear to have taken firm attitudes with respect to the proposed
contract, and the Union, no less than the Respondent, appears to have
been unyielding in its wishes. Indeed, if anything, it appears that
the Respondent was the less inflexible of the two, for the'Union had
adamantly stuck to its original proposals from the outset and
accepted none made by the Respondent, while, on the other hand, the
Respondent had accepted a substantial number of the proposals made
by the Union.
Under the circumstances of this case, and based on the entire record,
we conclude, contrary to the Trial Examiner, that the Respondent did
not refuse to bargain in violation of Section 8 (a) (5) of the Act.
[The Board dismissed the complaint.]
10 The Respondent contends that Section 10 (b) of the Act precludes the Board
from considering any event that transpired before August 24. In view of our decision
herein we do not pass on the merits of this contention.
PUCCINELLI PACKING COMPANY 655
CHAIRMAN LEEDOM, dissenting :
While I think this case presents a close question, I would find that
the Respondent violated 8 (a) (5) of the Act.
Different inferences can be drawn from the credited testimony of
King and Torreano concerning the attitude of Mr. Puccinelli, but I
cannot escape the conclusion that such testimony discloses an inten-
tion on Respondent's part not to bargain. The inference drawn from
their testimony depends largely, I think, on one's view of the Union's
attitude on those occasions when Feehan said that Mr. Puccinelli
would not allow him to present a counterproposal and that Puccinelli
did not want anything to do with the Union. If the conclusion is
reached that the Union itself would no longer consider any change
in its own terms, Feehan's statements can be construed as a recogni-
tion of futility by Respondent. On the other hand, if the judgment is
that the Union was still willing to consider other proposals, Feehan's
statements are tantamount to outright notice that Respondent was
not interested in trying to reach an agreement. While the union
representatives seem to have been hard bargainers, up to the very
end they were seeking counterproposals. I cannot believe that they
had closed the door to negotiations.
The pattern of delay by Respondent, his neglect of requests for
counterproposals and failure to submit them after promising to do
so, his attitudes on other aspects of the negotiations, all are consistent
with the view that he did not really mean to bargain. Such ,conduct
can hardly be explained except on the basis of a superficial effort
to reach agreement.
I see no real question as to Feehan's authority to speak for Respond-
ent even at the last. The question is not as to his authority, but rather
the interpretation of his statements.
Thus, I conclude Respondent did not bargain in good faith.
MEMBER MURDOCK, dissenting :
I am in full agreement with the Trial Examiner that, in the setting
of this case, Feehan's appearance at the August 25 and 30, 1955,
meetings without counterproposals, and on August 30 with expressions
indicating an end of negotiations, demonstrated an intransigent
attitude and a fixed purpose on the part of the Respondent to avoid
reaching any agreement with the Union, and therefore constituted a
refusal to bargain in good faith in violation of Section 8 (a) (5).
This setting, much of which is overlooked by my colleagues, may
be summarized as follows : (1) For a period of almost 3 years after
its certification until July 1954 the Union was unable to obtain from
the Respondent any kind of an agreement on a contract; (2) in July
1954 the Union submitted a proposed contract, but the Respondent
ignored this proposed contract until the Union called a Federal
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediator into the picture in December 1954; (3) upon the intervention
of the Federal mediator, the Respondent began to negotiate , but re-
jected many of the contract items at the December 1954 meeting
which were noncontroversial, such as recognition of the Union,
promises to perform the obligations of the contract , a clause concern-
ing work covered by the agreement which merely described the type
of work in the unit already certified , and the clause setting out in
blank the term of the agreement ; (4) at the March 16, 1955, meeting
the Respondent rejected the Union's proposed vitally important griev-
ance clause , but instead of attempting to reduce the area of difference
by making a counterproposal reflecting its views the Respondent asked
the Union to submit another clause that would provide a greater area
for employer prerogative ; ( 5) when the parties left the meeting of
May 23, 1955, it was with the understanding that the Respondent
would supply counterproposals, but when the Union wrote in June
asking for them Respondent did not reply to the letter and at the
next meeting , which did not take place until August 25 , 1955, over 3
months later, the Respondent arrived without any counterproposals
despite the understanding and long lapse of time ; (6) at the August
25 meeting , the Respondent again agreed to supply counterproposals,
this time on August 30, but on August 30 the Respondent again ar-
rived at the meeting without any counterproposals ; ( 7) moreover, at
this time Feehan , the Respondent 's representative , made the Respond-
ent's position clear, viz , that the Respondent would not allow Feehan
to present counterproposals ; ( 8) as a result of this extreme position
taken by the Respondent, Feehan at this time also went so far as to
state that he was going to recommend that his organization drop the
Respondent as a client , and recommended to the Union that it file
an unfair labor practice charge on the ground of failure of the Re-
spondent to bargain in good faith ; and (9 ) following this meeting
Feehan met with the Union's business agent, and told the latter that
he (Feehan) was getting nowhere with the Respondent, that he could
not negotiate a contract , that the Respondent did not want anything
to do with the Union, that the Union should file unfair labor practice
charges, and that he was going to recommend to his organization that
it cancel the Respondent as a client.
In my opinion , Respondent 's conduct on August 25 and 30 shows
a clear violation of Section 8 (a) (5). As background , we see first an
Employer who for almost 3 years after the Union 's certification en-
gages in what must be viewed as delaying tactics in order to avoid
entering into a contract with the Union. This Employer completely
ignores a proposed contract for the following 6 months until he is
virtually forced into further negotiations by the intervention of a
Federal mediator at the behest of the Union . Even with such inter-
vention this Employer negotiates in form only , as evidenced by his
PUCCINELLI PACKING COMPANY 657
rejection of even noncontroversial routine contract provisions. An-
other factor in the background, is the Employer's action in rejecting
a vitally important grievance clause, and instead of making a counter-
proposal shifts the burden to the Union to prepare by guesswork an-
other clause more favorable to the Employer to see if the Employer
will buy that one. Against this background, we then see this Em-
ployer arriving at the August 25 meeting without any counterpro-
posals, in the face of an understanding reached over 3 months previ-
ously that he would submit counterproposals; and after again
promising to prepare counterproposals, arriving at the August 30
meeting without the further promised counterproposals, and stating
quite frankly that there would be none forthcoming. Such a state-
ment in necessary effect amounted to a refusal to continue negotia-
tions. Moreover, at this same time the Employer's representative not
only states an intention to drop the Employer as a client because of
the Employer's refusal to negotiate any further, but recommends to
the Union that it file an unfair labor practice charge on the ground
of failure of the Employer to bargain in good faith, thereby admitting
in effect that the Employer had not bargained in good faith. Finally,
we see the Employer's representative repeating these same statements
to the Union's business agent, and adding thereto an admission that
he could not negotiate a contract, and that the Employer did not
want anything to do with the Union. In such circumstances, which,
culminated in effect in an outright refusal to bargain any further and
an admission that the Respondent had not bargained in good faith,
I find it indeed difficult to comprehend my colleagues' conclusions
that there was no violation of Section 8 (a) (5).
My colleagues attempt to excuse the Respondent's failure to submit
the promised counterproposals on the ground that the submission of
such would have been nothing more than an exercise in futility. The
evidence shows clearly, however, that this failure was rather an exer-
cise in bad faith. Thus, Feehan, the Respondent's representative in
the negotiations and thus closest to the negotiations on the Respond-
ent's side, had promised to submit counterproposals, thereby indicating
that in his opinion the submission of such would not be futile. How-
ever, the Respondent prevented him from doing so for the reason,
given by the Respondent to Feehan, that the Respondent did not want
anything to do with the Union. That this was the real reason, and
that the Respondent's further expression that new proposals would
be thrown in the wastepaper basket was merely a pretext, is clearly
demonstrated by Feehan's admission that the Respondent had not
bargained in good faith and Feehan's expressed desire to drop the
Respondent as a client because of the Respondent's bad faith.
450553-58-vol. 118-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My colleagues take the further position that Feehan's statements
at the August 30 meeting are not to be construed as indicating an
end of negotiations. In view of Feehan's statements that the Re-
spondent would not allow him to submit counterproposals and that the
Union should file an unfair labor practice charge, Feehan made it
abundantly clear that negotiations were at an end. And if any doubt
still existed, such doubt was completely dispelled when shortly there-
after Feehan told the Union's business agent that he (Feehan) could
not negotiate a contract, and that the Respondent did not want any-
thing to do with the Union. There is no basis for the majority finding
that these statements are neither binding upon the Respondent nor
dispositive of the question of the Respondent's good faith. They are
plainly within the scope of apparent authority and there is no evidence
that Feehan was acting beyond the scope of his agency in making these
statements. There is also no basis for the majority finding that the
Union was responsible for ending the negotiations. It may be true,
as pointed out by the majority, that the Union, anticipating correctly
a repetition of Respondent's failure to produce promised counter-
proposals, had decided before the August 30 meeting that that meeting
would be the last, and that in the absence of an agreement it would then
file charges or take economic action. However, the Union did not
communicate or act upon this decision at the meeting but appeared
ready to negotiate. Instead the Respondent clearly indicated that it
was ending negotiations and by its actions effectively precluded any.
According, wholly apart from the justification for the Union's decision
if it had been acted upon, it is crystal clear that it was the conduct
of the Respondent, and not the Union, which actually ended the
negotiations.
With respect to the majority's further finding that nothing that
transpired before August 25, 1955, indicates that the Respondent was
not bargaining in good faith, suffice it to say that the "background"
facts outlined above make it clear that the Respondent's delaying
tactics for a period of 4 years after the Union's certification are hardly
compatible with good-faith bargaining.
For the reasons indicated, I would find, as the Trial Examiner did,
that the Respondent refused to bargain in violation of Section 8 (a)
(5) of the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On February 21, 1956, Cannery Warehousemen, Food Processors , Drivers and
Helpers, Local 748 , affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, herein called the
Union, filed a charge against Puccinelli Packing Company, herein called the Re-
spondent , alleging that the Respondent had violated Section 8 ( a) (1) oand (5) of
PUCCINELLI PACKING COMPANY 659
the National Labor Relations Act, as amended, 61 Stat. 136. Upon this charge,
the General Counsel of the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twentieth Region of the Board, issued a
complaint on June 21, 1956, alleging a violation of the foregoing section of the Act.
In substance, the complaint alleges that the Union was certified on September
11, 1951, as the exclusive representative of all the Respondent's employees in a unit
of production and maintenance employees, and that on August 25, 1955, the Re-
spondent refused to bargain collectively with the Union, "in that (a) Respondent
failed to submit counterproposals as it had agreed ; (b) Respondent instructed
his representatives not to submit counter proposals."
The Respondent's answer, filed on July 16, 1956, admitted that the Union had
been certified in 1951 as alleged but denied that the Union "has at all times since
that date, and is now, the exclusive representative of such employees for such
purposes" and denied the allegations of refusal to bargain.
Pursuant to notice duly served, a hearing was held in San Francisco, California,.
on July 23, 24, and 30, 1956, before me as the duly designated Trial Examiner. At
the opening of the hearing, the General Counsel moved to amend his complaint,
with respect to the description of the Respondent's business, by changing a few
words. The motion was granted without objection. On July 24, during the course
of the General Counsel's case in chief, the Union served a subpoena duces tecum
on Ralph Patterson, of the Federal Mediation and Conciliation Service, who, in
response, appeared but refused to furnish the documents requested or to testify con-
cerning the negotiations between the Respondent and the Union on the ground that
he was forbidden to do so under general order No. 1 of that Service. The Union.
thereafter requested a continuance until Patterson could be compelled to testify..
The motion was denied. Before the next session of the hearing (July 30, 1956)
a petition to revoke the subpena was received by the Trial Examiner from the Re-
gional Director for the Federal Mediation and Conciliation Service on behalf of
said 'Patterson, requesting that the subpena be revoked. Notice of receipt of such.
petition was served on the Union, with copies of such notice going to the other
parties. Ruling was reserved until July 30 when the hearing reconvened, at which-
time the petition to revoke the subpena was granted. At the close of the General
Counsel's case in chief, the Respondent moved to dismiss on the ground of failure of
proof. The motion was denied. At the close of the hearing, the Respondent re-
newed its motion to dismiss . Ruling was reserved and it is now denied . The Union
moved for a continuance and the motion was denied. Then the General Counsel
representative and the Union argued orally on the record. The Respondent declined
the opportunity to argue orally but asked time in which to file a brief. Time was.
fixed and a brief was received from the Respondent which has been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation, has its principal office and processing
plant at Turlock, California, and another processing plant at Livingston, California.
It is engaged in the dehydration and canning of fruits and vegetables and the sale of
such products . In the course of its operations , the Respondent at its aforemen-
tioned plants caused to be shipped to points located outside the State of California
substantial quantities of such products, which in the year 1955 exceeded $100,000
in value. The Respondent concedes that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The Union's majority in an appropriate unit
As a result of a secret election conducted by the Regional Director for the
Twentieth Region of the Board, a majority of the employees of the Respondent in
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an appropriate unit 1 designated the Union as their exclusive representative for pur-
poses of collective bargaining with the Respondent as evidenced by the tally of
ballots executed on August 31, 1951. On September 11, 1951, the Union was certi-
fied by said Regional Director, acting on behalf of the Board, as the exclusive rep-
resentative of all the employees in the aforesaid appropriate unit for the purposes
of collective bargaining in regard to rates of pay, wages, hours of employment, and
other conditions of employment pursuant to Section 9 (a) of the Act. The Re-
spondent's answer denied that the Union "has been at all times since that date, and
is now, the exclusive representative of such employees for such purposes." At no
time before the hearing did the Respondent question the Union's representative status
:and at the hearing the Respondent adduced no evidence to rebut the presumption of
the Union's continuing representative status. It is long settled that the presumption
oof a union's representative status, once proved, continues indefinitely until it is shown
.that such status has ceased to exist .2 In the absence of proof to the contrary, there-
fore, I find that the Union on September 11, 1951, and at all times material there-
after was the exclusive representative of all the employees in the aforesaid appro-
priate unit for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
2. The bargaining history
Humbert Torreano, secretary-treasurer and business agent of the Union, testified
credibly and without contradiction that at a time when one Ted Haugh, representing
the California Association of Employers, herein called CAE, was in charge of ne-
gotiations for the Respondent, which I deduce was in 1951 or 1952, the parties
"had agreed on a contract right down the line, and Ted Haugh was to type it up
and get Mr. Puccinelli's signature," then mail it to Torreano in Chicago, to which
place he was going the next day. Apparently Puccinelli refused to sign the contract
on behalf of the Respondent (Torreano testified that Puccinelli "walked out on"
the contract) and, when Torreano returned from Chicago, Haugh was no longer in
Modesto, where the Union had its office and where the CAE representative had
maintained an office.
George Feehan, representing the CAE began to represent the Respondent in its
dealings with the Union in 1952. Between 1952 and July 1954 representatives of
the Union engaged in unsuccessful negotiations to work out an integrated wage
structure that would cover employees in both the dehydrating and canning opera-
tions. Other contract terms were not discussed during this period.
In July 1954, Wesley King, the Union's president and field representative, 'took
charge of the Puccinelli negotiations on behalf of the Union. On about July 22.
1954, King delivered to Feehan a copy of an entire proposed contract. Feehan
asked time to look it over. The evidence is in conflict as to the identity of the
proposed document delivered to Feehan at this time. King testified (and Feehan
denied) that he delivered a document naming the Union and Respondent as parties.
Feehan testified (and King denied) that King gave him a copy of a contract executed
by and between an employer called Basic Vegetable Products, Inc., of Vacaville,
California, and Cannery Workers and Warehousemen's Union, Local 857, A. F. of L.
According to King, he met Feehan 2 or 3 times in the next 3 months and was told
that Feehan had not had time to look over the proposed contract. Feehan testified
that he had, on July 22, 1954, rejected the tendered agreement as inapplicable to
the Respondent's operations because Basic Vegetable was a dehydrating operation
while the Respondent had both dehydrating and canning operations, and that King
had said that he would submit a proposal at a later date. He denied that he and
King had met between July and December 1954. The conflict with respect to the
identity of the document is relatively unimportant. The Basic Vegetable agreement
had appended to it a schedule of wages for employees in a dehydration plant and it
may be that such schedule would have to be worked over to take care of rates on
canning operations as well; but the terms of the Basic Vegetable agreement were
I The unit is described as: "All production and maintenance employees at Respondent's
plants in Turlock and Livingston , including seasonal employees , but excluding office cleri-
cal employees , professional employees , guards , foremen , foreladies , floorladies , and all other
supervisors as defined in the Act." The Respondent ' s answer admits that this unit is
appropriate within the meaning of Section 9 ( b) of the Act.
2 N. L. If. B. v. Whittier Mills Co ., 111 F. 2d 474 (C. A. 5) ; N. L. R. B. v . Sanson Hosiery
Mills, Inc., 195 F. 2d 350 ( C. A. 5) ; Superior Engraving Company v. N . L. R. B., 183 F. 2d
783 (C. A. 7) : N. L. R. B. v. National Plastic Products Co., 175 F . 2d 755 (C. A. 4) ;
N. L. R. B- v. National Motor Bearing Co., 105 F. 2d 652 (C. A. 9).
PUCCINELLI PACKING COMPANY 661
almost word for word those which were later discussed by the Union and Feehan
and which were in the working copies of the Union 's proposed contract that were
later supplied and used by the parties. Except for the rates, there was nothing
inapplicable in the terms of the Basic Vegetable agreement , even if that had been
the one which King delivered to Feehan on July 22, 1954; so I do not find it necessary
to resolve the conflict as to the identity of the document . I find that , if contacts
between King and Feehan cannot be dignified by the term "meeting," King did in
some way communicate with Feehan, who gave King the excuse that he had not
had time to study the proposed agreement. On about November 18, 1954, if not
sooner,3 King asked the Federal Mediation and Conciliation Service to intervene.
As a result a meeting was set up for December 15, 1954. Meanwhile on December
8, 1954, King mailed to Feehan a copy of a proposed agreement with terms substan-
tially the same as those previously submitted. No schedule of wages was, however,
submitted with it, but a separate letter, under date of December 15, 1954, containing
proposed wage brackets, was sent to Feehan. -
On December 15, 1954, Commissioner Ralph Patterson met with Feehan and
King at Feehan's office in Modesto, California. There they went through the
Union's proposed contract paragraph by paragraph. With respect to the preamble,
Feehan asked an amendment to describe the agreement as being between "the
California Association of Employers for and on behalf of Puccinelli Packing Com-
pany" and the Union. King assented to this. Feehan testified that he rejected
section 1 . This proposed clause included recognition , an agreement against dis-
crimination , mutual promises to perform the obligations of the agreement , mainte-
nance of membership, and rehiring preferences. Section 2, which called for a
central authority to be set up by the Respondent for hiring and discharging, Feehan,
in effect, rejected, because he proposed a continuation of the existing system of
hiring through the foreladies and foremen. (In a later meeting the Union concurred
in this.) Feehan rejected sections 3 to 8 inclusive, dealing with the classes of
work covered by the contract, hours of work, including overtime provisions, rates
of pay (although specific rates were to be agreed on later in a separate schedule to
be attached to the agreement), holidays and holiday work and pay, and grievance
procedure. Feehan either rejected or passed for further consideration sections 9
to 13 dealing with seniority , absences , vacations , maintenance of wage rates for
the same or equivalent work, and a provision for a 5-cent premium for night-shift
work. He agreed to section 14 on rest periods and section 15 on equipment for
employees to the extent each was required by law.
Section 16 provided for additional vacation time upon mutual agreement of the
Respondent and the Union without cost to the Respondent. Feehan agreed to this.
and also to section 17 (requiring the posting of house rules ) and section 18 (pro-
viding for rotation of employees in the same work so far as practicable in instances
where a particular position in the production line was of advantage to the worker).
He passed consideration of section 19, dealing with submission of certain types of
dispute to the "Shop Committee and/or local Business Agent and/or plant manage-
ment for consideration , and to the grievance procedure ." He either passed or
rejected sections 20 and 21. Section 20 contained a provision against assigning a
woman ( at lower rate ) to a job performed by a man ( at higher rate ) for the sole
purpose of avoiding the higher base rate . Section 21 dealt with letting out work
on a contract basis and required the Respondent to see to the maintenance of the
contract hours, wages, and working conditions on such work. Feehan rejected
section 22 calling for minimum number of hours of pay for employees put to work
and for those called and not put to work.
Section 23 dealt with meal time and maximum number of hours between meals.
Feehan said he had no basic objection to this provision but called on the Union
for "full definition ." Feehan did not, in his testimony , explain what language
required definition , and it is not apparent from the language of the agreement that a
definition would be essential to an understanding thereof. Feehan accepted section
24 (requiring the Respondent to furnish a list of personnel not covered by contract)
3 King testified that the Union made a request for Commissioner Jules Medoff, that meet-
ings were set up but were postponed because , King was informed , Feehan was unable to
attend the meetings, and the matter was transferred to San Francisco. No dates were given
for these events, however , before November 18, 1954. Feehan testified that the first meet-
ing that took place as a result of the services of Federal Mediation and Conciliation was
the one held on July 22, 1954. He testified that Commissioner Hillebrand was the first to
bring in the Federal Mediation and Conciliation Service , but that Hillebrand attended no
meetings. No date was given for this, other than the year 1954.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and section 25 (an agreement that no collection would be taken up in the plant
except in emergency and when mutually agreed). Feehan rejected section 26
Which dealt with the term of the contract (but with the space for expiration date
:left blank and subject to agreement) and with annual reopening options, continuance
-of existing provisions during negotiations , and provision for retroactivity to anni-
versary date of any agreement reached after anniversary date. This was the final
,clause of the agreement . Feehan asked for additional working copies of the
.agreement and said that he wanted to offer a counterproposal. The next meeting
was set for January 18 , 1955. Patterson was not to be present but he asked Feehan
'to report to him on January 20 as to what happened.
On the appointed date, King and Feehan met at the Union's offices in Modesto
and discussed sections 4 and 5. Section 4 called for an 8-hour day and 40-hour
week, except for exempt weeks of 48 hours, with a requirement of posting the weeks
in conformity with the Fair Labor Standards Act. According to the Union's
proposal , the workweek was to. be Sunday to Saturday, inclusive, except during
the non-processing period, when it was to be Monday to Friday, inclusive. Feehan
testified that he proposed a workweek of 6 days out of 7 with no premium pay for
Sunday work but modified this to the extent of agreeing that Sunday should be a
premium day no matter when worked. I assume that Feehan's offer referred to the
14-week exempt period provided for in section 7 of the Fair Labor Standards Act.
As the proposed agreement allowed a 48-hour week without overtime pay, Feehan
presumably was attempting to get a 6-day week of unlimited hours without over-
time pay. King rejected Feehan's proposal. Feehan, referring apparently to section
7 (d) (5) of the proposed agreement which provided that "No plant lay-offs shall be
scheduled for the sole purpose of avoiding holiday pay," asked how long ahead of
a holiday the Respondent would have to shut down in order to avoid holiday pay.
Feehan quoted King as saying "10 days" and he testified that he offered 3 days,
which King rejected. The proposed contract fixed no such time test. I infer,
therefore, that, if such time was discussed as testified, King was talking about a
prima facie presumption that he would, himself, draw, rather than any contract
period that could be enforced. Feehan and King agreed to disregard for the time
being the wage schedule supplied by the Union. King asked for a counterproposal
on rates and Feehan said he would furnish one by the time they were through with
the rest of the contract.
King and Feehan had no clear memories of dates or details of meetings apart from
their notes. King testified that, between January 18 and March 23, 1955, meetings
had been arranged but were postponed at Feehan's request. Feehan testified to a
meeting held on March 16, a meeting not shown in King' s notes . Notes of both
showed a meeting on March 23. Feehan's notes showed a meeting as held on March
28, which was not shown in King's notes. Both showed a meeting as having been
held on April 4. According to Feehan's notes , Patterson was present at each of
these meetings. Feehan's notes were more detailed.
At the March 16 meeting, according to Feehan, he again requested that the name
,of CAE be put in the preamble. King said it would appear in the next draft.
-F,eehan agreed to section 1 (previously rejected) except for the paragraph on
maintenance of membership. Section 2 was passed. Section 3, defining the em-
ployees or type of work covered by the contract (originally rejected) Feehan ac-
cepted without change. He also accepted sections 13 and 22 (originally rejected)
providing for a 5-cent premium for the night shift and for payment of 2 hours'
call-in-time and for a minimum of 4 hours' time if the employee was put to work
at all. Feehan was to give counterproposals on sections 4, 5, 7, 9, 11, 12, and 19.
On section 8 Feehan asked the Union to give a "counterproposal," meaning a new
or different proposal, as Feehan himself had not offered a counterproposal. He
.concurred in a portion of section 9 on seniority after the Union had deleted a
sentence and substituted another which would have relieved the Respondent of
the necessity for justifying, before the shop committee, its selection of employees
having seniority to fill vacancies. Feehan asked how King could possibly establish
a seniority system in a plant such as the Respondent's and King replied that he
would do it with present employees against their dates of employment.
The meeting of March 23, according to Feehan, appears to have been devoted
largely to questions asked by Feehan and to a discussion of the operation of certain
provisions . Section 7 of the contract defined as eligible for contractual holidays
employees who had worked 1,600 combined straight and overtime hours in the
previous calendar year. Feehan proposed a substitution of 1,800 straight-time
PUCCINELLI PACKING COMPANY 663
hours.4 Apparently King did not accede to this proposal. Feehan then agreed to
certain other subsections of section 7 dealing with holidays and holiday pay and
then King agreed to a change of language from "No plant lay-off s shall be scheduled
for the sole purpose of avoiding holiday pay" to "The Employer will make every
effort not to lay off during a holiday period." Feehan testified that the grievance
procedure was discussed, that he rejected the Union's proposal and asked the Union
to give him a grievance procedure that would "determine a greater area for em-
ployer prerogative," and that King said that the Union would agree to eliminate
the grievance procedure proposal if the Respondent would let the business agent
in the plant without restriction. (King denied having made this reply.) Feehan
testified that he rejected this proposal and proposed to eliminate all grievance pro-
cedure with no substitute and that King rejected this and asked for another proposal.
(King did not recall this.) The conflict is not of much importance since Feehan
testified that, after a high-level discussion, he agreed that some type of grievance
procedure would be necessary. Nothing further was agreed at this meeting.
On March 28,5 according to Feehan, he offered, with respect to paragraph 5
of section 9,6 that "the Employer would be the sole and final judge in the hiring of
mechanics for non-operating seasons' work or emergency breakdown." Apparently
this was intended to be an exception to the requirement of seniority as a considera-
tion in hiring. In any event, King rejected this proposal. Feehan again offered a
Monday through Saturday workweek with any run of more than 4 hours but less than
6 hours to be at straight time (the effect of which would be to approve a 6-day week
of 6-hour days) and any run of more than 6 hours to be guaranteed for 8 hours,
with Respondent having the privilege of running 6 days up to 40 hours without over-
time pay, but with the Union being allowed to determine if the "chop-off" (shortened
day) was for the purpose of escaping the 8-hour guaranty and the Union to have no
control over production scheduling. King said he could not agree to this unless he
had the means of determining if the carryover (raw products not processed on the
day of receipt but carried over until the following day) was normal. He told Feehan
that in order to determine bona fides, he would have to see the Respondent's raw
products receiving reports. Apparently Feehan did not offer to supply these as part
of his proposal. Feehan asked King for a letter stating the Union's position on the
subject of discussion by the end of that week. I infer that King was doubtful that
Feehan's proposal would be practical from the Union's standpoint.
On Monday, April 4, King, Feehan , and Patterson again met . Feehan said he
had not yet received the requested letter . King denied having promised to send
one. King testified that he understood that he was to send a letter if and when he
saw the Respondent's raw products receiving reports and that he never saw them.
King asked Feehan for a counterproposal . Feehan said he would take the request
under advisement.
In the first part of May, King sent Feehan a revised draft of the Union's proposed
agreement which incorporated all changes agreed on up to that time. The next
meeting took place on May 23, 1955. Meanwhile, Patterson had received an injury
in an automobile accident and was unable to attend . In his place, Commissioner
Ralph Williams of the. Federal Mediation and Conciliation Service met with King
and Feehan . Feehan' commented, with respect to the revised draft of the Union's
proposed agreement which he had received and particularly with reference to the
4 Feehan's testimony is not understandable at this point. He testified : "I tnen offered
in section 7 a counterproposal of 1,800 straight-time hours for holidays, with a spread of
two working days, making an employee uneligible for holidays, with Sunday not included as
a working day. King rejected it with all except Labor Day, and that would be on a five-
day spread."
5 King's notes showed no meeting on this date but showed a date of April 28 as a date
set for a meeting. No meeting was held on the latter date. He may have misnumbered
the. month in his notes.
0 This read : "When any vacancies or new jobs are to be filled, the present procedures
will be followed, i. e. : preference will be given to persons having necessary qualifications and
seniority. The Company will be the final judge of necessary qualifications, and if appli-
cants for vacated or new positions do not have the necessary qualifications, the Company
will give first consideration to other employees on the seniority list who may have the neces-
sary qualifications. The Employer will justify its selection before the Shop Committee."
At an earlier meeting, the last sentence had been deleted and the Union substituted, with
Feehan's consent, "Any exceptions to this policy will be agreed upon mutually by the Com-
pany and the Union."
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sections dealing with grievance procedure and hours of work, that there was very
little difference if any between the new and the previous draft, and he asked "what
was the intelligence in presenting the Union with a counterproposal, as they requested,
if they weren't going to budge any more than they had budged in this one." King
told Feehan that he could not depart from the Union's basic position in regard to
hours of work. Feehan quoted King as making substantially the same statement-that
he could not depart from the basic agreement-with respect to the entire agreement,
but that if Feehan "had any pride in penmanship or authorship" he could write
counterproposals and King would study them, "but he had no distance to go." King
conceded that he might have made some such statement. However, both Feehan
and King testified that King asked Feehan to make counterproposals and Feehan
testified that he replied that he would discuss the matter with Patterson and "would
let King know" his answer. But at one point he also testified that he had agreed to
submit a counterproposal and had agreed to talk to Patterson about it. The meeting
terminated with no progress having been made.
King received the impression that Feehan would supply his counterproposals by
June 8, because on July 21, not having heard from Feehan, he wrote:
At our last meeting of May 23, 1955, I asked for a specific counterproposal
and you agreed to furnish Federal Mediation Service and the Union a counter-
proposal not later than June 8. It is now July 21, and I expect an immediate
answer to this letter accompanied by a counterproposal as you agreed to.
King sent a copy of this letter to Patterson. Feehan could not remember the date
but he testified that, between May 23 and July 21, he did talk with Patterson at the
latter's office in San Francisco and that Patterson told him he should use his own
judgment "as to what kind of proposal" to submit. Feehan told Patterson he would
submit a counterproposal. He did not, however, reply to King's letter of July 21.
The Union again sought the assistance of the Federal Mediation and Conciliation
Service, and on August 24 Patterson returned to Modesto and a meeting was held
on August 25, with Feehan, King, and Patterson present. Feehan made no counter-
proposal. Little occurred at this meeting except for a discussion about whether or
not Feehan would make counterproposals. As a result of the discussion, Feehan
said that he would present a counterproposal at the next meeting, which was set
for August 30.
According to Feehan's testimony, he consulted with "Mr. Puccinelli" between
August 25 and 30 .7 Puccinelli did not testify. Feehan had no clear recollection
as to what he and Puccinelli said , except for one thing , which,related to a counter-
offer. He testified on direct examination that Puccinelli "ordered and authorized"
him to make an offer of a wage increase of 10 cents an hour across the board. I
shall defer making any finding on this testimony until I have related what occurred
on August 30. During this same period, between August 25 and 30, King had a
conversation with Torreano, the Union's secretary-treasurer and business agent, in
which Torreano told King that August 30 was to be the last meeting if Feehan did
not come up with a counterproposal, and that the Union would then take economic
action or file a charge with the Board.
Testimony regarding what transpired on August 30, 1955, the last meeting between
the parties, was in serious conflict. The testimony on both sides will therefore be
related before I make a resolution thereof. Torreano testified that he was in his
office at the Union's address when Feehan walked down the hall, saw Torreano,
and came in to speak with him. This was Torreano's first day back in the office
after a long absence because of an injury he had suffered. According to Torreano,
Feehan said that he had an appointment with King and Patterson, and that he was
not getting anywhere with "Mr. Puccinelli" and could not negotiate a contract, that
he was going to recommend to the CAE that they cancel the Respondent out as a
client, and that "your best shot is to go to the National Labor Relations Board and
file charges against Mr. Puccinelli." Torreano quoted Feehan as saying that Pucci-
nelli was afraid of Government agencies . Torreano testified that he told Feehan that
a No further identification was given. According to a Board case in 1942, Puccinelli
Packing Company, of Turlock, California, was a partnership composed of three partners,
R. P., A. J., and Elena Puccinelli. Puccinelli Packing Co., 40 NLRB 890. King testified
that Feehan referred to Puccinelli as "the old man" and that Puccinelli was about 60 years
of age or older. Feehan denied that he had ever referred to "Mr. Puccinelli" as "the old
man" and volunteered that Puccinelli's nickname was "Pooch," hardly a distinguishing
identification. Although the evidence of identity is thin, there is sufficient evidence in my
estimation to give rise to the inference that the "Mr. Puccinelli" referred to in the testi-
mony is the directing head of the Respondent.
PUCCINELLI PACKING COMPANY 665
as long as he had a meeting with King and Patterson , he would have to deal with
them.
King testified that at the meeting of August 30, which was attended by Feehan,
Patterson, and himself, Feehan said that he did not have a counterproposal, that
Puccinelli would not let him present one, that even if Puccinelli had allowed him
to make a counterproposal, the Union would probably have wadded it up and
throw it in the wastebasket, that he was pretty mad at the "old man" meaning
Puccinelli, and that the CAE was going to drop him as a client-that he (Feehan)
would recommend it. King testified that he asked Feehan, "Where do we go from
here?" and that Feehan had replied, "Well, I recommend you make an unfair labor
practice out of failure to negotiate in good faith ." King testified that he then told
Feehan the Union would probably put a picket line on the Respondent and that
Feehan replied, "Well, that's what he wants you to do. He is not afraid of picket
lines, he is afraid of Government agencies."
Feehan testified that he did not speak with Torreano until after he had met with
King and Patterson. He testified that, in the meeting with King and Patterson, he
announced, "Here is my proposal: ten cents across the board," that "King rejected it
and stated that he wouldn't be able to do it finally because he had to see Torreano
about it." Feehan then testified that he said that "this presented the Union with a
series of alternatives: one, they could accept it; two, they could take economic
action; three, they could file an Unfair Labor Practice Charge against the Company."
He testified that he told King he was interested in knowing what the Union's answer
was and what they were going to do, that King replied that he would have to see
Torreano, that he asked King where Torreano was and was told he was in the
office, that he went to see Torreano and told him of the 10-cent offer, that Torreano
rejected it, that he then repeated to Torreano the alternatives previously mentioned
to King and asked what he was going to do, and that Torreano said he would have
to get in touch with the Union's attorney. He testified that he again spoke with
Patterson (but did not testify as to what he said) and that then the meeting was
over.
Except for the conflict in testimony as to what was said on August 30, 1955,
both the testimony and the demeanor of the witnesses justifies the belief that they
were testifying to the best of their recollections (although with some possible mis-
takes) up to that point. But the facts testified as occurring before August 25 were
not crucial facts, whereas those that occurred on August 30, 1955, were crucial to
the case. This is particularly true inasmuch as the charge was not filed until
February 21, 1956, and was not served until February 24, and therefore under the
proviso in Section 10 (b) of the Act, no unfair labor practices occurring before
August 24, 1955, may be the basis of the complaint in this case.6 In making a
resolution of the conflict in testimony, I take .into account the probability that a
temptation to distort the truth would be greater with respect to crucial than with
respect to noncrucial facts; therefore, no presumption should be drawn, that the
testimony, honest up to the crucial point, was necessarily honest with respect to
the crucial evidence. I have also taken into account the fact that, when two wit-
nesses give diametrically opposite testimony about an event, 1 of the 2 may be
honestly mistaken rather than deliberately falsifying. In this case, which mental
attitude produced the conflict is not important. It is necessary only to decide what
was the true fact. Because the testimony of the mediator, Patterson, was not
available, a resolution of the conflict must be based upon the testimony above
related and on the consistency of such testimony with other evidence, as well as on
my observation of the witnesses. Considering the testimony in the light of other
evidence, I note that the Respondent was not disposed to submit a written counter-
proposal of a complete contract. In fact, during the whole course of the negotia-
tions, the Respondent submitted only one small typed sentence or paragraph.
Feehan's failure to answer King's letter of July 21, after having undertaken to
submit counterproposals, indicates a disposition on the Respondent's part to avoid
making any written counterproposal. Feehan's arrival empty handed at the meeting
on August 25, 1955, knowing what was expected of him, fortifies the inference that
the Respondent was adamantly opposed to making any counterproposal or to
resolving differences. Up to and including the last meeting before August 25, i. e.,
the meeting of May 23, the parties had not even begun to dispose of wage rates.
A number of other subjects were occupying their attention, prominently those con-
8 The delay of nearly 6 months in the filing of the charge raises no presumption against
the Union, particularly in view of the explanation given therefor : The attorney to whom
the Union's files had been delivered for handling died within a week after the final meeting
between the parties and the Union had trouble finding the files.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned with hours and with grievances. The sudden injection of an offer of a wage
increase with no mention of other contract terms or any excuse for not making
counterproposals on them appears so disoriented as to suggest a complete improba-
bility, especially since Feehan, even by his own testimony, indicated an assumption
that negotiations were at an end. In the light of the surrounding circumstances, the
testimony of Torreano and King sounds much more convincing. Furthermore,
when Torreano and King testified that no offer of a 10-cent wage increase was
made, their appearance and demeanor was consistent with their testimony. Feehan,
on the other hand, appeared to me to be tense and ill at ease in much of his testi-
mony about the meeting of August 30, especially on cross-examination, giving the
appearance of embarrassment. Upon full consideration of all the testimony and
from my observation of the witnesses, therefore, I find the facts to be substantially
as testified by Torreano and King,9 and I find that if Puccinelli directed Feehan to
make an offer of a 10-cent wage increase, Feehan did not actually convey this
offer to the Union.
3. Conclusions with respect to the refusal to bargain
The complaint alleges that the Respondent refused to bargain "in that (a) Re-
spondent, on or about August 25, 1955, failed to submit counterproposals as it had
agreed; (b) Respondent instructed his representatives not to submit counterpro-
posals." The quoted portion I take to be a pleading of evidentiary matter rather
than the unfair labor practice, itself, since it is the refusal to bargain, however
evidenced, which constitutes a violation of the Act. In fact the General Counsel
concedes that counterproposals are not a necessary requirement by law but asserts
that failure to make counterproposals is an indication of bad faith and that this case
goes even farther in making out a case of bad faith since counterproposals were
actually promised but were not given. The claim that the Respondent instructed
its representatives not to submit counterproposals is apparently based on King's
testimony that Feehan announced at the August 30 meeting that Puccinelli would
not let him make a counterproposal.
Although cases are to be found in which it has been held that, on the facts there
present, a failure to make counterproposals was not an evidence of refusal to
bargain in good faith,1° many cases are to be found where an employer's failure
to make counterproposals has been found to evidence a refusal to bargain.ll The
issue in each case is whether the employer's total conduct discloses a good faith
effort to compose his differences with the Union through the process of negotiation
or whether he is merely going through the mechanics of negotiating with no serious
purpose of composing such differences. Failure to submit counterproposals is
merely an evidentiary factor to be considered in resolving that issue.
Looking at the Respondent 's total conduct here, one is struck by the fact that
throughout the years in which the Union sought to reach a contract , the Respondent
put the burden almost entirely on the Union . There is no evidence that the Re-
spondent ever took the initiative in trying to set up a meeting with the Union, and
there is evidence from which it may be inferred that the Respondent 's attitude was
to let sleeping dogs lie, that is, that it would let time run on indefinitely without
communication with the Union unless the Union forced the issue of a meeting. Until
a Federal mediator was called into the picture , the Respondent ignored the Union's
proposed contract terms delivered in July 1954. The Respondent sought to explain
this conduct on the ground that the contract submitted was not one appropriate to the
Respondent 's operations in that the submitted contract was one signed by a
dehydrating plant and that the Respondent had not only a dehydration process but
9 Torreano's memory of the time that Feehan spoke with him on August 30, 1955, was that
it occurred after lunch, whereas King was under the impression that the meeting was in the
morning. I am inclined to believe that Torreano's memory was more accurate as to the
time, although the variation is insubstantial and does not change my conclusions respecting
the accuracy of their memories as to what was said,
10 White Motor Company, 111 NLRB 1272; Solar Aircraft Company, 109 NLRB 130;
Kerrigan Iron Works, Inc., 108 NLRB 933; Adler Metal Products Corp., 79 NLRB 219;
and others.
11 Senorita Hosiery Mills, Inc., 115 NLRB 1304; E. I. Dupont de Nemours & Company,
Inc., 115 NLRB 84; Paul Stevens, Receiver of Carolina Scenic Stages, 109 NLRB 86;
Boise Implement Company, 106 NLRB 677, enfd. 215 F. 2d 652 (C. A. 9) ; Century Cement
Manufacturing Company, Inc., 100 NLRB 1323, enfd. 208 F. 2d 84 (C. A. 2).
PUCCINELLI PACKING COMPANY 667
also a canning process. I am not completely convinced that the form submitted
in July 1954 was the contract signed by another employer, but assuming that it was
for purposes of argument, the Respondent's objection would be valid only as to
wage rates, for, as I have already pointed out, with the exception of wage rates,
the proposed contract terms formed a perfectly sound basis for negotiations even
if those terms were contained in a contract of another employer. The Respond-
ent, however, avoided any meeting until after the aid of the Federal Mediation and
Conciliation Service was sought by the Union. The dilatory attitude of the Respond-
ent between July and December 1954 has all the appearances of stalling which
might have continued but for the intervention of the Federal mediator. Upon such
intervention, the Respondent began to negotiate , in form at least, concerning prac-
tically the same terms, as those submitted in July 1954 but now set out in a new
draft furnished by the Union. Many of the items rejected at the December 1954
meeting were such as normally would be deemed noncontroversial , such as recog-
nition of the Union and promises to perform the obligations of the contract, when
executed, the clause concerning work covered by the agreement, which merely de-
scribed type of work in the production and maintenance unit already certified, and
the clause setting out , in blank, the term covered by the agreement. Although some
of the foregoing were contained in sections which also contained what might be
expected to be controversial, the rejection, in blanket form, of both the unacceptable
and that which would normally be acceptable is an indication of a desire to avoid
agreement even in areas where there was a basis of agreement . Agreement on
such provisions finally came on March 16, 1955. No explanation was given by
Feehan as to why the Respondent had not agreed earlier. The acceptance of certain
clauses covering conditions common to industrial plants such as the Respondent's,
after initial rejection , looks like an attempt to hold back as much as possible so
that a later yielding on them would give an appearance of concession . The Re-
spondent objected to, and rejected, the Union's proposed grievance clause, but
instead of attempting to reduce the area of difference by making a counterproposal
incorporating language that would overcome the Respondent 's objections , Feehan
asked the Union to submit to him a grievance procedure that would "determine a
greater area for employer prerogative." This is merely further evidence of the
Respondent 's unwillingness to carry any of the burden of attempting to compose
differences even though Feehan conceded that some type of grievance procedure was
necessary. Without a counterproposal on such a vital matter, the Union could not
determine the area of possible compromise . If Feehan 's testimony of the Respond-
ent's attitude can be relied on, the Respondent was concerned mostly over the cost
items and otherwise it left the terms of the contract to be negotiated to Feehan's
discretion . Under such circumstances , therefore, his failure to make a counter-
proposal on grievance procedure, I conclude, was merely an effort to make the
reaching of an agreement as difficult and as slow as possible . In this setting, the
Respondent's failure repeatedly to furnish counterproposals on other sections,
although Feehan agreed at several meetings to furnish them, partakes of the same
appearance.
When the parties left the meeting of May 23, 1955, it was with the understanding
that the Respondent should supply counterproposals to the Union . Although the
evidence does not indicate whether or not this contemplated a complete draft of a
proposed agreement or merely drafts of the subjects of agreement that were in
dispute, it appears obvious that at least the latter was understood , for Feehan's own
notes of the meeting of March 16 showed that he was to give counterproposals on
seven sections. Feehan denied that he had ever agreed to furnish counterproposals
on any section other than the one he testified he gave. But I cannot infer that
Feehan would list those seven sections in his own notes as ones on which he was to
give counterproposals unless he had agreed to do so. That Commissioner Patterson
expected the Respondent to make counterproposals is fairely evident from the fact
that, after talking with Feehan , sometime after the May 23 meeting, about counter-
proposals, Patterson set up the meeting of August 25, 1955, and, when Feehan arrived
without counterproposals , let the parties separate without negotiating until August 30
so that Feehan could have additional time in which to furnish the Respondent 's coun-
terproposals . According to Feehan's testimony , on August 25, "as a result of the con-
versation back and forth I said that I would have a proposal for them on August 30."
That he could at that time honestly have believed that he was expected to come in with
no offer on the subjects of bargaining on which he had previously agreed to supply
counterproposals is beyond belief. When he said he would bring a proposal on
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 30, I interpret that to be a promise to bring in a counterproposal at least on
those sections to which he had on March 16 agreed to furnish counterproposals.
He sought to excuse his failure to do so on the ground that the Union had taken an
:unyielding position when King said that he had little distance to go from his basic
agreement . If King did make such a statement , no impasse was created thereby.
_It is not the custom of bargainers to announce in advance that they will yield much
rather than little ground. As long as the Union was receptive to any counter-
proposals , it was the Respondent 's obligation to take the next step and disclose in
good faith the extent to which it was willing to go on the subjects under dispute.
Until this was done, the Respondent could not shift to the Union the responsibility
for a breakdown in negotiations . In the setting of this case , I am led to the con-
clusion that Feehan's appearance at the August 25 and 30, 1955 , meetings without
counterproposals and on August 30 with expressions indicating an end of negotiations
demonstrated an intransigent attitude and a fixed purpose on the part of the Re-
spondent to avoid reaching any agreement with the Union . Such evidence gives
support to King's testimony that Feehan told him that the Respondent would not
let him make counterproposals and I find that this was the case . Upon the entire
record, therefore , I find that on August 25 and 30, 1955 , and thereafter , the Re-
spondent refused to bargain with the Union , thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Although the Respondent may be a corporate form of a partnership heretofore
found to have committed unfair labor practices, no less than 14 years have inter-
vened between the two cases. This being the case, I do not believe that, in order to
effectuate the policies of the Act, a broad cease and desist order is either necessary
,or proper. I shall therefore confine my recommendation to that customarily used
in simple cases of a refusal to bargain.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All production and maintenance employees at the Respondent's plants in Tur-
lock and Livingston, California, including seasonal employees, professional employees,
guards, foremen, foreladies, floorladies, and all other supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. The Union was on September 11, 1951, and at all times material thereafter has
been, and now is, the exclusive representative of all the employees in the above-
described unit for the purposes of collective bargaining within the meaning of Sec-
tion 9 (a) of the Act.
4. -By refusing on August 25 and 30, 1955, and at all times thereafter, to bargain
with the Union as the exclusive representative of the employees in the above-de-
scribed unit, the Respondent has engaged in, and is engaging in, unfair labor prac-
tices affecting commerce within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
fRecommendations omitted from publication.]