Roberts Oldsmobile, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1980

252 N.L.R.B. 192 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts Oldsmobile, Inc. and Local 259, United
Automobile Workers, affiliated with United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America. Case 2-CA-16435
September 16, 1980
DECISION AND ORDER
On April 15, 1980, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in support of the Administra-
tive Law Judge's Decision and a brief in opposition
to the exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Producs, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
In adopting the Administrative Law Judge's finding that the striking
employees' oral offer to return to work was conditioned on the discharge
of striker replacements and the reinstatement of employee Velez, we em-
phasize that the Administrative Law Judge specifically credited testimo-
ny that the offer was so conditioned and discredited testimony to the
contrary.
a We agree with the Administrative Law Judge that Respondent's pro-
posed strike settlement agreement, which included a provision for the
withdrawal of unfair labor practice charges, in the circumstances here
could not reasonably have been construed by employees as a restriction
on their right to avail themselves of the Board's processes, and therefore
did not violate Sec. 8(aXl) of the Act. However, Chairman Fanning and
Member Jenkins disavow the Administrative Law Judge's alternative
finding that, even if that specific provision were violative of Sec. 8(aX1)
of the Act, no remedial order would be warranted. Member Penello finds
it unnecessary to pass on this alternative finding.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: This
case was heard in New York, New York, on December
5, 6, 7, and 19, 1979. Upon an unfair labor practice
charge filed by Local 259, United Automobile Workers,
affiliated with United Automobile, Aerospace and Agri-
cultural Implement Workers of America (herein called
the Union), a complaint issued against Roberts Oldsmo-
bile, Inc. (herein called the Respondent) alleging that it
violated 8(a)(l), (3), and (5) of the National Labor Rela-
tions Act, as amended (herein called the Act), by having
refused, from May 7, 1979, to about June 15, 1979, to re-
instate 12 of its striking employees upon their uncondi-
tional offer to return to work and by instead requiring
that the Union first agree to withdraw unfair labor prac-
tice charges it had filed with the Board, and to agree
also to a maintenance-of-membership clause in the con-
tract then being negotiated. Respondent asserts that no
unconditional offer to return to work had been made. It
contends that the Union's offer to return the 12 striking
employees to work was expressly conditioned on Re-
spondent's reinstating a discharged employee, Pepe
Velez (the alleged discriminatee in a then pending unfair
labor practice charge), and upon the termination of all
striker replacements. It further contends that its counter-
offer to the Union that it would put the striking employ-
ees to work upon withdrawal of that charge and upon
acceptance by the Union of a maintenance-of-member-
ship clause was, in context and albeit an awkward one,
an effort on its part to induce the Union to remove the
conditions the Union had placed on its offer. The com-
plaint further alleges, and Respondent denies, that the
strike had been converted from an economic strike to an
unfair labor practice strike by reason of Respondent's al-
leged unlawful acts. It is unnecessary to decide that
matter as it is uncontroverted that the striking employees
had been offered reinstatement without qualification on
June 15, 1979.
I have considered the entire record in the case, the
oral arguments made at the hearing, the briefs filed by
the General Counsel and by the Respondent, and the de-
meanor of the witnesses at the hearing. Based on these
considerations, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and the Union is a labor organization as defined in
Section 2(5) of the Act. '
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the retail sale and servicing
of automobiles and related products in Stamford, Con-
necticut. On October 18, 1978, the Union was certified
by the Board as the exclusive collective-bargaining rep-
resentative of its approximately 15 service department
employees. There were about nine negotiating sessions
between then and the start of a strike on April 5, 1979,
by most of Respondent's service department employees.
The first session was devoted to the presentation of the
Union's contract demands. The second and third sessions
These findings are based upon allegations in the complaint which
have been admitted by Respondent in its answer.
252 NLRB No. 35
192
ROBERTS OLDSMOBILE INC.
were concerned solely with the Union's efforts to have
the Respondent reinstate Pepe Velez, a service depart-
ment employee who had been discharged. The remaining
sessions involved discussions of contract terms, including
the Union's insistence on a union-security clause and Re-
spondent's rejection of that proposal. By April 5, 1979
(all dates hereinafter are for 1979) impasse was reached
and the strike began. From then and until April 25, there
were no discussions between Respondent and the Union,
other than brief conversations between Respondent's of-
ficials and the picketing employees on the picket line as
discussed below.
On April 25, Respondent's attorney, William Fitzger-
ald, took the initiative towards breaking the impasse.
From then and until June 15, the parties talked to each
other by telephone, sent letters, exchanged telegrams and
mailgrams, and engaged in direct talks-all of which
produced offers, rejections of offers, alleged unlawful
offers, modifications of offers, and purported acceptances
of offers apparernly revoked prior to acceptance. Both
sides contend that each reneged on agreements previous-
ly reached.
Three basic issues are posed. The first is whether the
Union made unconditional offers by telegrams to Re-
spondent on May 4 and on May 16 on behalf of the strik-
ers to return to work. The second is whether the strikers
made an oral unconditional offer to return on May 7.
The third is whether Respondent insisted on the with-
drawal by the Union of unfair labor practice charges as a
condition precedent to reinstating the strikers and wheth-
er such alleged insistence was tantamount to a discharge
of the strikers or was otherwise violative of the Act.
B. The Events Between April 25 to May 7
i. Respondent's efforts to end the strike
Respondent's attorney, William Fitzgerald, testified at
the hearing that on April 25 he telephoned the Union's
office and left a message with its president, Samuel
Meyers, to call him. This was the first step taken by
either side to break the impasse which began with the
advent of the strike on April 5. Meyers returned that call
that same day and told Fitzgerald that the strikers would
return to work as soon as a contract was negotiated. On
the following day, Fitzgerald spoke with Meyers again
by telephone and advised him that Respondent would
take the strikers back immediately and urged him to
return to the bargaining table. (Fitzgerald termed this as
an "offer" by Respondent, apparently as replacements
had been hired and apparently as an assurance to the
Union that Respondent would actually employ the strik-
ers if they returned and not simply put them on a prefer-
ential hiring list.) Meyers did not testify at the hearing to
rebut the foregoing testimony by Fitzgerald. The Union's
business agent, Joseph Lewis, who was responsible to the
Union for representing the service department employees
of Respondent, testified that he had no knowledge until
the hearing of any such conversations between Fitzger-
ald and Meyers.
Fitzgerald signed a letter dated May I and which he
testified was probably mailed on the morning of May 2
to the attention of Lewis at the Union's office in New
York City. That letter recited that the Union had reject-
ed Fitzgerald's offer in the preceding week "to take the
men back to work . . . and resume negotiations where
we left off." The letter further stated that Respondent
makes a new offer to take the men back on May 7, to
resume negotiations where they were left off, and, mean-
while, pay the men a "200 floating guarantee." The
record does not disclose what their previous guarantee
had been but it is fair to assume either that the earlier
guarantee was lesser in amount or that there was none.
Fitzgerald testified further that on May 2 Respondent's
president, Robert Marandino, instructed him to revoke
the proposals contained in the May I letter because one
of the picketing employees had told Marandino on May
2 that they would not work alongside the replacements
and would not return until Pepe Velez was reinstated.2
Thereupon, Fitzgerald sent a telegram on May 2 to the
office of the Union's attorneys (and not to the Union's
office where the May I letter had been sent) stating that
the offer made in his "May 2" letter was revoked. Fitz-
gerald in fact had never sent a letter of May 2 but he
testified that his reference to a May 2 letter was a mis-
take and that he intended to revoke the terms of the
letter dated May 1 which had been mailed on May 2.
2. The alleged unconditional offer to return of May 4
On May 3, according to the Union's business agent,
Joseph Lewis, he called Fitzgerald. Fitzgerald testified
that the first call he received that week from Lewis was
on May 4. Lewis testified that, as of May 3, he had not
received either the May I letter or the May 2 telegram
revoking it, that he had no knowledge of either commu-
nication then and that no reference to them was made in
the course of any of his telephone discussions with Fitz-
gerald. He testified that he told Fitzgerald on May 3 that
he was calling because Respondent's president had talked
to him and the pickets on the previous day and urged
them to call Fitzgerald to arrange to have the striking
employees return to work and to set up a negotiating
meeting. Lewis further testified that Fitzgerald told him
that he, Fitzgerald, had no authority to set up a meeting
but that he would check with Marandino and send Lewis
a night letter or a telegram. Lewis testified that he heard
nothing further from Fitzgerald that day, May 3, and
that when he came to his office on the morning of May
4, there was no night letter or telegram from Fitzgerald
there.
Lewis and Fitzgerald both testified that they had two
discussions by telephone on May 4. Lewis stated he
called Fitzgerald on May 4 and told him that he had not
received any night letter or telegram. He quoted Fitzger-
ald as saying that Marandino had instructed him not to
send anything in writing. According to Lewis, Fitzgerald
I Marandino testified that one of the pickets, Daniel Krzyminski, had
told him that he and the other striking employees would come back to
work only if the striker replacements were discharged and only if Re-
spondent reinstated Pepe Velez. Krzyminski testified that, as of late
April, he had told Mrrandino more than once that it would be difficult
for the striking employees to return to work alongside their replacements
He also testified that Velez participated in the picketing and that the
striking employees were insisting then on Velez being reinstated.
193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that he was willing to set up a negotiating meet-
ing and would check with Marandino and call him,
Lewis, back. Fitzgerald gave an entirely different ac-
count of their first telephone conversation. He testified
that he could not recall the exact words but that the gist
of it was as follows. Lewis called him on Friday, May 4,
and stated that there had been an agreement and asked if
Respondent was prepared to take Velez back and asked
what Respondent's position was "about the employees
presently working." Fitzgerald, apparently having under-
stood Lewis' remarks as a reference to his letter of May
1, specifically told him about the revocation by telegram
of the May I letter. Lewis "purported . . . to have no
knowledge of it" then. At that point, Lewis asked "what
terms could we settle the agreement under" if Respond-
ent would not take Velez back or "release the men" (i.e.,
discharge the striker replacements). Fitzgerald told
Lewis that he would talk to Marandino and call Lewis
back.
Both Lewis and Fitzgerald agree that Fitzgerald did
call Lewis back later on May 4. Again, however, their
accounts as to the substance of their discussion are at
variance. Lewis testified that the discussion was a brief
one and that Fitzgerald told him that Marandino was
willing "to take the men back if the Union would accept
the open-shop clause in the contract." Lewis said that
the conversation ended when he interrupted Fitzgerald
to tell him that the Union was willing to discuss any
such issue over the bargaining table.
Fitzgerald's account respecting that discussion is as
follows. After his first conversation with Lewis, he
wrote out in longhand on yellow sheets of paper a pro-
posal to be made to Lewis. (That document was received
in evidence as one of Respondent's exhibits.) It has the
appearance of an initial draft as it had many words
crossed out, a number of inserts and a few grammatical
constructions which are awkward in style but clear as to
intent, e.g., "Whereas (the parties) have arrived at a pro-
posal to settlement of said strike and therefor exchange
mutual promises to wit." Fitzgerald cleared this draft
with Marandino and then called Lewis and spoke to him
at length. (Respondent placed in evidence Fitzgerald's
telephone bills which show that the call to Lewis lasted
13 minutes, to rebut Lewis' testimony that the second
discussion was a brief one.) Fitzgerald read the draft pro-
posal to Lewis. Lewis said that he would take it up with
the striking employees. The conversation ended and Fitz-
gerald then noted on the second page of the longhand
draft, "This read to Lewis 5-4-79."
The proposals set out by Fitzgerald included agree-
ment by the Union to cease its efforts to obtain the rein-
statement of Velez and to "withdraw all unfair labor
practices on his behalf," acceptance by the Union of an
"open-shop" clause in the contract to be negotiated, as-
surances by the Union that none of the strikers will as-
sault or harm any other service employees, agreement to
end the strike on May 9 under the same terms as when
the strike ended and resumption of bargaining on May
11.
The Union's business agent, Lewis, had testified as set
forth above that Fitzgerald had told him on May 4 that
he had not sent a night letter to Lewis on May 3, as he
had earlier promised, because Marandino did not want
Fitzgerald to put anything in writing. Lewis also said
that Fitzgerald told him in the second conversation on
May 4 that Marandino would take the men back if the
Union would accept an open-shop clause in the contract.
Lewis testified that after that second conversation, his
secretary brought to his attention the letter dated May I
from Fitzgerald. This is the letter discussed above in
which Respondent proposed to take the striking employ-
ees back to work on May 7 and to resume negotiations
where they left off with a $200 weekly guarantee pend-
ing final agreement. Lewis stated that he then sent a tele-
gram to Fitzgerald reading, "Relet 5/1, we accept your
offer." His telegram makes no mention of either of his
conversations on May 4 with Fitzgerald.
The General Counsel contends that Lewis' telegram of
May 4 accepting the terms of Fitzgerald's May I "offer"
constituted an unconditional offer on behalf of the strik-
ing employees to return to work. The General Counsel
asserts further that Respondent's response on that date
unlawfully rejected that offer and instead insisted on an
unlawful bargaining condition; i.e., that the Union with-
draw its unfair labor practice charge as to Velez. The
merits of those contentions are now considered.
It is axiomatic that economic strikers are entitled to re-
instatement upon the making of an unconditional offer
therefor unless they have been permanently replaced.
There is no contention by Respondent that the strikers in
the instant case had been permanently replaced. The
issue considered in this section is whether Lewis did
make an unconditional offer on May 4 and, if so, wheth-
er Respondent unlawfully rejected it. The evidence
relied on by the General Counsel is that Lewis received
the May I letter on May 4 after he stated he was told by
Fitzgerald that Respondent would not put anything in
writing and that Respondent would take the strikers back
if the Union would first agree to an open-shop clause in
the contract. Let us assume, for our immediate purposes,
that his account is credited.
The difficulty I have with the General Counsel's con-
tention is that Lewis' own testimony discloses that the
May 1 proposals by Respondent had been modified by
the alleged statement by Fitzgerald on May 4 that the
striking employees could come back to work if the
Union accepted the open-shop clause. The Union never
agreed to accept such a clause. Its telegram of May 4
purports to accept an offer (i.e., May I proposal) which
according to Lewis' own testimony had been orally
changed on May 4 prior to acceptance. In essence, from
a labor-law standpoint, the Union's telegram on May 4
must then be construed as a statement to Respondent
that the striking employees offered to return to work on
May 7, provided that the Respondent would pay the em-
ployees upon their return a $200 floating guarantee each
week. That provision was expressly included in the May
1 letter, upon which the Union's offer was predicated. In
that context, the Union's May 4 telegram by its terms
was not an unconditional offer but was premised on Re-
spondent's agreeing to a $200 weekly guarantee.
I recognize that Respondent did not expressly assert
that the language of the Union's May 4 telegram thus
194
ROBERTS OLDSMOBILE INC.
constituted a conditional offer to return but Respondent
did deny the allegation in the complaint that the Union
made an unconditional offer on May 4. Even assuming
that the conclusion above, that the May 4 telegram was
not an unconditional offer, is based on a technical, legal-
istic application of contract-law principles of which
Lewis was unaware, that conclusion should still stand as
there are no legal or equitable bases to justify its being
set aside. From a legal standpoint, as noted above, the
law clearly requires that an offer to return made by strik-
ing employees must be unconditional. The offer in any
event should be made in an intelligible manner. Lewis'
May 4 telegram purporting to accept an earlier proposal
by Respondent which had, by Lewis' own testimony,
been modified in the interim, is hardly a clear communi-
cation to Respondent tat the strikers desired uncondi-
tionally to return to work. There is a further legal basis
to support my conclusion that the May 4 telegram was
not an unconditional offer to return. If it were, Respond-
ent may be liable for backpay from May 7 until the strike
ended. Based on the terms of the May I letter and
Lewis' May 4 acceptance of its terms, the backpay
would have to be calculated on a formula which must
take into account the $200 weekly floating guarantee, a
wage rate factor that Lewis' own testimony shows was
not agreed upon by Fitzgerald in the telephone conversa-
tion on May 4. In other words, if the gross backpay for-
mula would include the $200 guarantee, that would per-
force demonstrate that the guarantee was a condition to
the offer to return to work. If it were not to be included
in the backpay formula, that would demonstrate that the
Union's May 4 telegram purporting to accept the terms
of the May I letter did not in fact do so. In that event,
we would have to speculate as to the purpose of the
May 4 letter.
This brings us to a consideration of the equities.
Lewis' own testimony shows that the last item he dis-
cussed with Fitzgerald before sending the May 4 tele-
gram was Respondent's request that the contract contain
an open-shop clause and its view that agreement thereon
should be reached before Respondent would consider
any offer the Union might make to end the strike. Lewis
testified that he did not reject that proposal but said it
was a bargainable matter. His May 4 telegram sent right
after his conversation with Fitzgerald recites that the
Union accepts the May I "offer." Nevertheless, Lewis
was sent on May 4 a telegram by Fitzgerald which un-
equivocally indicated that the terms of the May I letter
were no longer operative as that May 4 telegram ex-
pressly referred to the discussions Lewis and Fitzgerald
had earlier that day. For that matter, that May I letter
had earlier been revoked expressly. In these circum-
stances, it seems inequitable to me to construe Lewis'
telegram as an acceptance of the May 1 letter and to, at
the same time, disregard its contents. The overall cir-
cumstances suggest instead that, when Lewis was told by
Fitzgerald that Respondent insisted on an open-shop
clause and where the Union's position throughout bar-
gaining has been that it would accept only a union-shop
clause, Lewis' May 4 telegram was not a clear, intelligi-
ble unconditional offer to return but rather was a request
that Respondent retract from its position on May 4 and
return to its position on May 1. In essence then the
Union by its May 4 telegram offered to return the strik-
ers to work and to resume bargaining on condition that
the $200 floating guarantee be put into effect. I read that
as a conditional offer as the General Counsel adduced no
evidence that, prior to the strike, the $200 guarantee was
in effect.
In any event, I do not credit Lewis. He said he called
Fitzgerald on May 3 but no phone bills or other docu-
mentation were offered to corroborate such a long-dis-
tance call. In that regard, I note that Lewis' office is in
New York City, the picket line was in Stamford and
Fitzgerald's office is in Hartford. Further, Lewis said his
second conversation on May 4 was very brief but Fitz-
gerald's phone bills show that it lasted 13 minutes. That
interval supports Fitzgerald's account that he read and
discussed with Lewis the longhand draft he prepared
earlier. The draft itself appears authentic. Also, it is un-
likely that Fitzgerald would not have mentioned in the
May 4 conversations the May I letter or his telegram of
May 2 revoking it. It is even more unlikely that, after
having sent those communications, he would have told
Lewis, as Lewis asserts, that he was instructed to put
nothing in writing. If Lewis were told that and was
handed the May I letter immediately afterwards, he
would be expected to call Fitzgerald back and to con-
front him with the letter but he did not do so. Finally,
Fitzgerald did in fact send a telegram on May 4 after the
second conversation and this belies Lewis' assertion that
Fitzgerald was under instructions not to put anything in
writing. In fact, Fitzgerald sent telegrams and mailgrams
to all the strikers then.
I credit Fitzgerald's account. Thus, Lewis was aware
when he sent his May 4 telegram reading "Re-let 5/1.
We accept your offer" that that "offer" had been re-
voked. He was obviously not making an unconditional
offer to return the strikers to work. He could have made
such an offer simply and directly if that was his intent. I
can only conclude that Lewis was engaging in some
form of gamesmanship. I find that his telegram was not
an unconditional offer.
In a separate section below, the alleged violation by
Respondent of insisting upon the withdrawal by the
Union of the unfair labor practice charge it filed as to
Velez is considered.
3. The alleged oral unconditional offer on May 7 to
return to work
We now come to the General Counsel's second con-
tention that the striking employees orally made an un-
conditional offer on May 7 to return to work and that
their offer was rejected then. Respondent asserts that, on
May 7, the striking employees insisted on the discharge
of their replacements and the reinstatement of Pepe
Velez as a condition for their coming back to work. The
resolution of that credibility issue requires an examina-
tion of the events from the start of the negotiations to
the events of May 7.
Lewis testified that, after having sent the May 4 tele-
gram accepting Respondent's proposal that the striking
employees return to work on May 7, he went to the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line and that the striking employees, and also
Velez who was there, agreed then to go along with the
proposal set out in Respondent's letter of May 1. Lewis,
and several of the strikers who were present then and
who testified at the hearing, said that all agreed to go
back to work except Velez whose reinstatement would
be sought via the unfair labor practice charge the Union
had filed on his behalf with the Board. Velez had been
present on the picket line all that week but did not tes-
tify at the hearing.
On that afternoon of Friday, May 4, Fitzgerald re-
ceived Lewis' telegram sent earlier that day, reading:
"Relet May 1, we accept your offer." He testified that,
because of the hectic pace of the developments, he mis-
read it as an acceptance of the proposals he had read in
full to Lewis a short while before on May 4 from the
longhand draft he prepared. He thereupon sent telegrams
to Lewis and to one of the strikers and mailgrams to
each of the other striking employees. The message ac-
knowledged receipt of Lewis' telegram of May 4, ex-
pressed pleasure that the "offer of May 4 by phone ac-
cepted" and stated that upon the Union's signing an
agreement containing the terms of the May 4 proposal of
Respondent, the striking employees could report for
work on May 9. The May 9 return date, instead of the
May 7 date as set out in the May 1 letter, was selected,
according to Respondent's witnesses, because its service
manager had collapsed from a heart condition while at
work on May 2 and was not able to return to work until
May 9 at the earliest. Respondent's president testified
that he wanted his service manager on duty when the
strikers returned because he, the service manager, was
the best one to maintain control in the shop should any
problems develop between the returned strikers and their
replacements.
One of the striking employees, Daniel Krzyminski,
called Fitzgerald on Saturday, May 5, when he received
the telegram sent him by Fitzgerald. He told Fitzgerald
that he had a letter from Lewis dated May 4 telling him
to report for work on May 73 and said he was confused
by the May 9 date in Fitzgerald's telegram. Fitzgerald
told him not to come in on May 7, that the date had
been changed to May 9 and that the men could come
back to work as soon as the Union signed an agreement.
Krzyminski said that he would follow Lewis' instructions
and would report for work on May 7. Fitzgerald testified
essentially along the same lines except that he said he
told Krzyminski that the May 7 date was changed to
May 9 because the service manager would be absent be-
cause of illness until May 9.
Over the remainder of the weekend, Fitzgerald and
Marandino discussed the language to be incorporated in
the agreement they would present to Lewis to sign on
May 7 and decided to use verbatim the draft Fitzgerald
had prepared on May 4. The agreement was typed. Fitz-
gerald and Marandino waited in Marandino's office at
Respondent's facility in Stamford on the morning of May
7 for the striking employees to present themselves. When
they were told that the strikers were coming, Fitzgerald
3 There is no other reference to such a letter from Lewis in the tran-
script. In context, Krzymski was referring to Fitzgerald's letter of May I
which Lewis said he showed the striking employees on May 4.
testified that he left the office and found an isolated hall-
way where he remained in order to avoid being a partici-
pant in or witness to the confrontation.
The General Counsel presented the testimony of five
witnesses to establish that the striking employees offered
in the discussion, then to come back to work uncondi-
tionally. Respondent proffered seven witnesses to estab-
lish that they made at best conditional offers.
One of the striking employees, Daniel Krzyminski, tes-
tified that he and 11 other employees assembled that
morning in a parking lot next to Respondent's premises
and walked as a group to the service door. He stated
that all were wearing their work uniforms, that some
carried their mechanics tools and that all the other strik-
ers were right next to him when they were met by Mar-
andino. According to Krzyminslti, Parts Manager Robert
Schrecke was standing immediately alongside Marandino
and Service Manager Donald Lofink was standing on
Marandino's other side, also right next to him. Maran-
dino signaled them to stop. According to Krzyminski,
Marandino asked him if he had received a telegram on
Saturday (which changed the reporting date on May 9).
Krzyminski stated that he showed Marandino a copy of
the May I letter given him by Lewis which set forth
March 7 as the reporting date. Krzyminski said that Mar-
andino told him that the matter would be settled when
Lewis arrived as he had an agreement for Lewis to sign.
Krzyminski stated that he and the other strikers then
withdrew to an adjacent parking lot and waited there for
Lewis.
According to Krzyminski, Lewis arrived a short while
later and discussed what had just transpired. Lewis pro-
fessed no knowledge of any agreement he was supposed
to sign. Thereupon, Lewis, Krzyminski, and another
striker, Albelt (Taxi) Escoffrey went to Marandino's
office and had the following discussion with Marandino,
Schrecke, and Respondent's attorney, Fitzgerald. Maran-
dino presented the written agreement, referred to above,
for Lewis to sign. Krzyminski said that there was some
discussion about the strikers fighting with the replace-
ments, and that Respondent wanted an open shop. He
also testified that Lewis looked at the proposed agree-
ment, did not like it, and said that he would show it to
the group of strikers outside. Lewis, Krzyminski, and Es-
coffrey then left to discuss the proposed agreement with
the group outside. The strikers rejected the proposal.
Lewis, Krzyminski, and Escoffrey returned to Maran-
dino's office to inform him of the rejection. They re-
turned to the group outside and resumed picketing, car-
rying the same placards as before, which bore either the
caption, "Strike" or "Unfair." About a week later, ac-
cording to Krzyminski, the pickets began carrying new
signs, reading "Lockout."
Lewis' testimony as to the events on the morning of
May 7 is as follows: He first learned that morning that
Respondent had an agreement for him to sign before the
men could return to work. He had not previously re-
ceived Fitzgerald's telegram of May 4, referred to above
and which stated that they could return on May 9 after
Lewis signed the agreement reached by phone on May 4.
When Fitzgerald handed him the proposed agreement in
196
ROBERTS OLDSMOBILE INC.
Marandino's office on May 7, he told Fitzgerald that that
was not the agreement he accepted but that he was refer-
ring to Fitzgerald's letter of May 1. Fitzgerald told him
then that the May I offer had been rescinded by a tele-
gram. Lewis told him he had never received such a tele-
gram. Lewis told Fitzgerald that he could not agree to
the proposal given him on May 7 and would discuss it
with the men. Lewis, Escoffrey and Krzyminski left, dis-
cussed it with the strikers as a group who rejected it and
then Lewis informed Respondent that the men would
not agree to the proposal. The strikers resumed picketing
on May 7 with signs bearing the legend "Strike" in black
lettering. About a week later, the signs were changed.
New ones, in blue and bearing the legend "Lockout"
were carried from then and until the strike ended a little
over a month later.
Albert (Taxi) Escoffrey testified for the General Coun-
sel as follows respecting the discussions on May 7. As he
and the other strikers approached the service door, a
police officer, George Hoegemann who was doing spe-
cial guard duty for Respondent, told them to stop. Then
Marandino, in the presence of Parts Manager Schrecke
and Service Manager Lofink and in response to Krzy-
minski's asking why his group cannot come in to work,
asked Krzyminski if he did not receive a letter "rejecting
the previous letter." Krzyminski said that he did. In the
course of that discussion, Marandino stated that Lewis
has to sign a letter before the strikers can return to work.
The rest of Escoffrey's testimony parallels the testimony
of Lewis and Krzyminski as to the subsequent events of
that morning.
The General Counsel's fourth witness, Robert Law-
rence, testified as follows. He drove onto Respondent's
lot to bring in his tools. Marandino told him he had no
work scheduled for him that day but to come back on
May 9. He joined the group of strikers at the service
door shortly afterwards and stood with most of them
about 5 feet behind Krzyminski. Marandino came to
them. Krzyminski and Vernon Ampson acted as spokes-
man for the strikers. Krzyminski pulled out a letter and
told Marandino that it says that the strikers can come
back to work. Marandino asked if they received his
other telegram and was told that they were coming back
- based on the letter Lewis had shown them the preceding
Friday. Marandino asked to see Lewis. The strikers later
resumed picketing with signs reading, "Unfair." Previ-
ously, the signs had read "Strike."
Vernon Ampson was the last witness for the General
Counsel as to the events of May 7. He testified as fol-
lows. He, Krzyminski, and Escoffrey walked up to the
service door. A police officer stopped them. The only
others nearby then were Marandino and Schrecke. Serv-
ice Manager Lofink was at his desk inside the building.
Marandino asked if they saw Lewis. Krzyminski, said
they had not. Marandino said he had a letter for Lewis
to sign. At that point Ampson realized that he was not
going to go to work that day and walked back to where
the other strikers were standing. From that distance he
and the other strikers could not hear what was said
clearly and he did not hear what else was said between
Marandino and Krzyminski. Later Lewis arrived and
went to Marandino's office with Krzyminski and Escof-
frey. They returned and told the strikers to resume pick-
eting because there was something Respondent wanted
him to sign. They resumed picketing and several days
later the placards were changed to read "Lockout."
As noted above, Respondent presented seven witnesses
as to the events on May 7. Its first was its parts manager,
Robert Schrecke, who testified as follows. The strikers
walked onto Respondent's premises as a group and that
all but Krzyminski and another striker, Vernon Ampson,
stopped and waited at a line of service cars. Krzyminski
and Ampson continued to walk toward the service door
where Marandino told them to stop. In Schrecke's opin-
ion, the strikers in the background were too far away to
hear the conversation that ensued. Marandino asked
where Lewis was and wanted to know if the agreement
was to be signed. Krzyminski asked whether the non-
strikers were still in the shop and whether Pepe Velez
could come back to work. Marandino answered yes to
the first question and no to the second. Krzyminski and
Ampson turned around and walked back to the waiting
group of strikers who then went to an adjacent parking
lot to wait for Lewis. Velez was with the waiting group
at that time. Schrecke was not present later at Maran-
dino's office when Lewis discussed the proposed agree-
ment with Marandino and Fitzgerald.
Marandino testified as follows. On the morning of
May 7, Marandino and Schrecke talked to Krzyminski
and Vernon Ampson at the doorway to the service de-
partment. The remainder of the striking employees were
standing about 50 feet away alongside the cars parked in
the lot. Krzyminski said that the men would like to come
back to work but that the "scabs in the shop" would
have to go and he also asked about Velez. Marandino
told him that that cannot be and asked for Lewis. Krzy-
minski said he was supposed to be there. Marandino sug-
gested they wait for Lewis. Krzyminski and Ampson
turned and walked back to the other striking employees
who then left the premises to wait for Lewis in an adja-
cent parking lot. Marandino said that Velez was one of
the men present in that group on May 7.
Later that morning, according to Marandino, Lewis,
Krzyminski, and Taxi Escoffrey came to Marandino's
office where they met with Marandino and Fitzgerald.
Lewis refused Marandino's offer to sit down and asked
why the men were not back to work. Marandino told
Lewis what Krzyminski had said at the picket line early
the preceding week; i.e., that there would be violence if
the "scabs" were not let go and that the Union wanted
Velez back to work. Lewis said that Krzyminski does
not speak for the Union. Fitzgerald asked Lewis to sit
down so that they can talk but Lewis said that he heard
enough and left with Krzyminski and Taxi. In the course
of their discussion, Marandino had handed Lewis an
agreement for him to sign. Lewis told him that he would
show it to his attorney. Marandino testified further that
when Lewis and the striking employees reached their
cars on the adjacent parking lot, Lewis opened the trunk
of his cars and took out picket signs which the men put
on. The placards read "Lockout."
George Hoegemann was called by Respondent and he
testified as follows. He is an acting sergeant with the
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stamford police department and has also performed se-
curity duty for Respondent since the spring of 1979. On
the morning of May 7, he was on duty for Respondent at
its premises when the strikers proceeded onto Respond-
ent's lot. All but two, Krzyminski and Vernon Ampson,
stopped about 60 feet from the service door. Velez
among the group. Krzyminski and Ampson continued to
walk to the service door. From the position Hoegemann
took near a stairwell railing, he could see those two but
not Marandino. Nevertheless, he heard and recognized
Marandino's voice in the ensuing conversation. Maran-
dino asked if they were there to come back to work.
Krzyminski said they are ready to come back but he
wanted to know "about the guys that are inside." Maran-
dino said they would stay. Krzyminski also asked wheth-
er Pepe Velez was coming back to work too. Marandino
said that they could talk about this. Marandino then
asked where Lewis was and was told he was not there
yet. Krzyminski and Ampson left and joined the waiting
group. Later that day, he observed the group picketing
with signs reading "Lockout." Prior to that day, they
carried signs which read "Strike."
Service Manager Lofink's testimony was as follows:
He came to Respondent's premises on Monday, May 7,
despite his illness. He had collapsed at work on May 2
and was out the remainder of the previous week. From
his position on May 7 at the service desk, he saw the
strikers walk onto Respondent's property and stop at the
location where customers' cars are parked, about 30 to
40 feet from the service door. Two of them, Krzyminski
and Ampson, then walked to the service door where
they were met by Marandino and Schrecke. Lofink
could not hear what was said as the service desk was
about 20 feet from the door. He was able to observe
Krzyminski and Ampson approach the door as there was
a window alongside his desk. Later on, he observed
Lewis, Krzyminski, and Escoffrey come into the show-
room and leave it shortly afterwards. The strikers re-
sumed picketing later that day with signs which read
"Lockout."
One of Respondent's salesmen, Jack Delehanty, testi-
fied that as he unlocked the showroom door that morn-
ing, he saw Krzyminski and Ampson approach the serv-
ice door. He also observed the policeman, Hoegemann,
leaning off the stairwell railing. He testified that a group
of the strikers, including Velez, stationed themselves
alongside the cars parked in the lot. From his position in
the showroom, Delehanty could not hear any of the con-
versations. Later on, he observed the pickets carrying
"Lockout" signs for the first time.
Respondent's next witness, Kenneth Hildebrand, testi-
fied that he is in business for himself and that he was in
the service shop on the morning of May 7 repairing tele-
vision camera equipment. He identified Krzyminski and
Ampson (who were in the hearing room) as the two men
who approached the service door as he was ready to
leave. He observed them talking to Marandino and
Schrecke there but paid no attention to the discussion.
As noted above, Respondent's attorney Fitzgerald was
also there but from his position in a secluded hallway, he
saw and heard nothing. He was present later in Maran-
dino's office when Lewis, Krzyminski, and Escoffrey
came there. His testimony of the discussion then cor-
roborates Marandino's account.
Respondent's last witness as to the events on May 7
was its former attorney, Gerald Kolinsky, who is now a
workmen's compensation commissioner for the State of
Connecticut. He testified that he was returning by auto-
mobile to his office from a conference he had that morn-
ing with a client and observed the pickets bearing signs
with the legend, "Lockout" in black print.
In rebuttal, Krzyminski, Lewis, and Escoffrey denied
that any strikers threatened to harm any of the replace-
ments and denied that they admitted such threats.
In resolving the credibility issues posed by the forego-
ing accounts, I first take note of the background events.
The Union had spent two bargaining sessions with Re-
spondent unsuccessfully seeking Velez' reinstatement in
late 1978. It was unsuccessful in the subsequent six ses-
sions in reaching agreement on the contract terms. It
struck on April 5. Velez actively participated in the pick-
eting and was admittedly on the picket line during the
week May 1-4. The strikers conceded that it would be
difficult for them to return to work alongside their re-
placements. The General Counsel's witnesses testified
that they agreed among themselves on May 4 to seek
Velez' reinstatement thereafter only by way of the unfair
labor practice charge it had earlier filed on his behalf.
They do not contend that they ever expressly told Re-
spondent that the object of their strike from the outset or
at any time was solely to resolve the economic issues or
that they were offering to return without Velez being re-
instated.
I also note that, by their own testimony, the General
Counsel's witnesses indicated that their offer to return on
May 7 was based on the May 1 letter which I have
found to be itself a conditional offer. For the matter, the
repeat of that offer by the Union's counsel on May 16
was to the same effect.
It seems unlikely to me that Velez and the striking em-
ployees would so readily agree on May 4 that all would
offer to return on May 7 based on the May 1 letter and
without Velez. I have already found that Lewis knew
then of Fitzgerald's detailed proposals on May 4. It is
unlikely that those were not discussed with the employ-
ees on strike. In any event, the General Counsel has
failed to persuade me that the accounts of his witnesses
are more credible than those of Respondent's. Ampson
contradicted the accounts of Krzyminski and other strik-
ers that the strikers appeared at the service door en
masse. He corroborates Respondent's witnesses that
almost all of the strikers were located about 50-feet dis-
tant and that Lofink was not at the service door. Krzy-
minski asserted he was. Another of the General Coun-
sel's witnesses, Robert Lawrence, corroborates Respond-
ent's witnesses that Krzyminski and Ampson were the
only two to approach the door to act as spokesmen for
the group. The accounts of Respondent's witnesses were
substanitally consistent on material details and were
given from the respective positions at which they said
they were located that morning. Four of them said that
Velez was there that morning. The General Counsel did
not call Velez as a witness or directly explain his absence
198
ROBERTS OLDSMOBILE INC.
although Respondent's cross-examination of Lewis indi-
cated that with some effort the Union had been able to
locate Velez in June. I credit the accounts of Respond-
ent's witnesses and thus find that the Union's offer on
May 7 was conditioned upon the reinstatement of Velez
and the discharge of the strikers' replacements.
C. The Alleged Unlawful Insistence by Respondent
That the Union Withdraw Unfair Labor Practice
Charges Before Any Offer To Return the Strikers To
Work Could Be Considered
The facts so far show that Fitzgerald took the initia-
tive towards ending the strike by his call to the Union's
president in late April, that he modified that offer on
May I and that he further modified it on May 4-7. On
May 14, he sent Lewis another telegram which modified
again that proposal. Therein, he proposed to take the
strikers back on May 23, that the Union cease its effort
to reinstate Velez and that it would withdraw its unfair
labor practice charge as to him. The proposal also in-
cluded agreement on an open-shop, arbitration of any
discharge, the end of the strike, resumption of bargaining
on May I and withdrawal of all lawsuits, including one
instituted by Respondent in the state of Connecticut for
an injunction against alleged violence by the Union.
On May 16, the Union's attorney wrote Fitzgerald to
note that the Union had accepted his May I offer but
that the employees were not returned to work as prom-
ised therein and that Fitzgerald's May 14 telegram is but
a repeat of Respondent's alleged unlawful conduct. The
letter of May 16 states that the Union again uncondition-
ally offers to return the strikers to work as offered on
May I by Respondent and to resume negotiations. It ap-
pears that, at or about this same time, an agent of the Re-
gional Office of the National Labor Relations Board un-
dertook efforts to adjust the issues arising out of the
Union's unfair labor practice charge it filed in behalf of
Pepe Velez and also the charge in the instant case. Re-
spondent's counsel testified that he suggested to the
Board agent that the Velez matter be handled separately
from the issues involved in the new charge. Respondent's
counsel wrote the Union on June 5 and enclosed a strike
settlement agreement for it to sign. His covering letter
recites that Respondent is willing to discuss any clause
therein at any time to end the strike as soon as possible.
The proposed settlement offer by Respondent on June 5
provided for arbitration of any discharge, a $180 to $210
floating guarantee, resumption of bargaining, withdrawal
of all lawsuits and "unfair labor practices pending as a
result of the strike" (by this time the charge giving rise
to the complaint in the instant case had been filed). The
Union did not respond to that letter in writing. In early
June, Respondent's attorney submitted a written proposal
to the Union to settle the Velez matter. That proposal
was signed on June 14 and Respondent that same date
notified the Union by telegram that it would take back
all striking employees on the following day and for a
reasonable time thereafter. The strikers returned a week
later.
The foregoing evidence does not demonstrate intransi-
gence on Respondent's part. It does show that Respond-
ent repeatedly made efforts to sway the Union from pur-
suing its picketing to compel inter alia the reinstatement
of Velez and the discharge of the striker replacements.
Fitzgerald's uncontroverted testimony is that he was the
one to propose to the Board agent, who was acting as
intermediary, that the Velez unfair labor practice case be
separated from the strike situation to promote settlement
prospects. He also had expressly advised the Union that
he was ready and willing to talk about any clause con-
tained in his proposals. At no time did the Union offer to
do so. It simply kept characterizing his proposals as per
se violations. In oral argument at the hearing, Fitzgerald
as Respondent's co-counsel stated that the words he used
to induce the Union to withdraw its unfair labor practice
charges may have been legally improper on their surface
but, in the context of the overall situation, they set out
bona fide, lawful attempts on Respondent's part to break
a bargaining deadlock which involved the insistence by
the Union of Velez' reinstatement. There is no probative
evidence that Respondent established, as an unyielding
term of reinstatement of the strikers, 4 that the unfair
labor practice charges be withdrawn by the Union or
that Respondent insisted upon such withdrawals as a
condition precedent to the resumption of bargaining. Ac-
cordingly, I find that Respondent did not, by use of such
language, discourage membership in the Union in viola-
tion of Section 8(a)(3) of the Act or refuse to bargain
collectively in violation of Section 8(a)(5) of the Act.
The General Counsel urges that good-faith motive is no
defense. I now will consider whether the demands by
Respondent as to the withdrawal of the unfair labor
practices interfered with the rights of employees to have
access to the Board processes in violation of Section
8(a)(1). As noted above, the words above prima facie
support such a finding but they must be evaluated in the
context of the whole case. In that posture, I find that the
evidence is insufficient to establish that the employees
could reasonably construe the position of Respondent as
a restriction on their right to avail themselves of the
Board's processes. They knew, as did Respondent, that
they were engaged in an economic tug of war. None of
the employees could reasonably expect reprisals of any
kind based on charges having been filed and not with-
drawn. Even were the words used violative of Section
8(a)(1), Respondent itself appears to have taken the ini-
tiative in remedying any unlawful impact and there is
nothing to suggest that their use will be repeated. On the
contrary, Respondent's counsel has expressed regret on
the record in this case for his choice of wording and no
useful purpose would be served by the issuance of a re-
medial order thereon.
CONCLUSIONS OF LAW
1. The Union did not at any time make an uncondi-
tional offer on behalf of the employees named in the
complaint as amended to return to work from an eco-
nomic strike and thus Respondent's not having reinstated
them from May 4 to June 15, 1979, did not violate Sec-
tion 8(a)(3) of the Act.
' Had it done so, a violation of Sec. 8(a)X3) may have been made out.
Cf. Abilities and Goodwill. Inc.. 241 NLRB 27 (1979).
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent did not insist as a condition precedent
to the resumption of bargaining with the Union that it
withdraw unfair labor practice charges it filed and thus
Respondent did not violate Section 8(a)(5) of the Act.
3. Respondent did not interfere with the Section 7
rights of its employees and did not violate Section 8(a)(l)
of the Act.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER 5
The complaint, as amended, is dismissed in its entirety
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purpose.
200