Sunol Valley Golf & Recreation Co.

National Labor Relations Board - Board Decisions

Oct 23, 1991

305 N.L.R.B. 493 (N.L.R.B. 1991)

493
305 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 As noted above, this earlier charge was settled unilaterally but
the settlement was revoked when a complaint issued in Case 32–
CA–11734.
2 On August 21, 1991, the Respondent’s counsel requested the Re-
gional Director to provide a subpoena for Tsiliacos to appear at the
hearing scheduled for August 26, 1991. The request for the field ex-
aminer to testify was denied by the General Counsel by letter dated
August 26, 1991.
Frank Invaldi, et al., a California Limited Partner-
ship d/b/a Sunol Valley Golf and Recreation
Co. and Hotel Employees and Restaurant Em-
ployees and Bartenders Union, Local 50, Hotel
and Restaurant Employees International
Union, AFL–CIO. Cases 32–CA–11599 and 32–
CA–11734
October 23, 1991
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 6, 1991, counsel for the General
Counsel filed a request for special permission to appeal
Administrative Law Judge Jerrold H. Shapiro’s ruling
denying the General Counsel’s petition to revoke sub-
poenas ad testificandum served upon Field Examiner
Nicholas Tsiliacos by the Respondent and the Charg-
ing Party. Both parties seek to have Tsiliacos testify
regarding alleged communications from the field ex-
aminer with representatives of the Respondent and the
Charging Party. The Respondent has filed opposition
to the General Counsel’s appeal.
The relevant facts disclose that on May 22, 1990,
the Respondent and the Charging Party began negotia-
tions for a new contract. After a series of meetings be-
tween the parties, the Respondent presented its final
offer to the Union on October 16, 1990. The offer was
rejected by the Union which then instituted strike ac-
tion against the Respondent. On February 21, 1991, the
Regional Director approved a unilateral settlement
agreement in Case 32–CA–11599 which concerned the
Respondent’s alleged withdrawal of recognition. On
March 1, 1991, the Charging Party advised the Re-
spondent that it was accepting the Respondent’s final
offer, so that an agreement had been reached. On
March 11, 1991, the Respondent advised the Charging
Party that there was no agreement because the offer
was no longer on the table.
On May 22, 1991, the Regional Director issued an
order withdrawing approval of and setting aside settle-
ment agreement; order consolidating cases; and con-
solidated complaint and notice of hearing alleging,
inter alia, that the Respondent violated Section 8(a)(1),
(3), and (5) of the Act by refusing to execute an agree-
ment embodying the terms arrived at during contract
negotiations and by refusing to reinstate striking em-
ployees.
The principal issues in this proceeding are (1)
whether the Union was advised before March 1, 1991,
that the Respondent’s October 16 offer had been with-
drawn and (2) whether, assuming arguendo the Re-
spondent received advice from a Board agent in regard
to its procedures for reinstating returning strikers, reli-
ance on such advice would preclude the Regional Di-
rector from issuing a complaint on what he concludes
are violations of the Act in the Respondent’s reinstate-
ment of those strikers.
At the hearing the Respondent and the Charging
Party provided conflicting testimony with respect to
what was said at the bargaining table as to whether the
Respondent’s final offer had been withdrawn. The Re-
spondent presented testimony from its labor relations
representative, Mike Lynn, that on February 4, 1991,
during settlement negotiations on an earlier charge
(Case 32–CA–11559),1 he told Field Examiner Nich-
olas Tsiliacos that the Respondent’s final offer had
been withdrawn and that Tsiliacos ‘‘must have’’ in-
formed the Union. The Union’s witnesses denied that
Tsiliacos informed them that Respondent’s offer had
been withdrawn.
The Respondent does not contend that it requested
the field examiner to notify the Union or that the field
examiner indicated that he would do so. It appears to
be undisputed, however, that the draft settlement agree-
ment in Case 32–CA–11599 originally contained a
paragraph stating that the Respondent would advise the
Union that its final offer was still on the table but that,
on receiving the draft settlement agreement, the Re-
spondent advised Tsiliacos that the draft should be
changed since the offer was not on the table. In any
event, the unilaterally approved settlement agreement
did not contain this paragraph.
Based on such evidence, the Respondent contends
that Tsiliacos must have forwarded a first draft settle-
ment to the Union and then explained to it why the
disputed paragraph was being deleted. In response to
the Respondent’s testimony, the General Counsel pre-
sented as witnesses the Union’s attorney and two other
representatives who denied ever seeing the first draft
or speaking to Tsiliacos about the final offer. To rebut
such evidence, the Respondent seeks to have Tsiliacos
corroborate the Respondent’s testimony and dem-
onstrate that Tsiliacos relayed such information to the
Union.2
The Charging Party also sought permission for
Tsiliacos to testify in connection with a second allega-
tion in the complaint, i.e., that the Respondent failed
and refused to reinstate striking employees after receiv-
ing their unconditional offers to return to work. The
Respondent defended on the ground that its refusal to
reinstate was privileged because the strikers failed to
respond to letters offering them reinstatement ‘‘If they
submitted new applications and underwent inter-
views.’’ To justify imposition of this condition on rein-
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 By letter dated August 27, 1991, the Charging Party’s counsel
sought permission from the General Counsel for Tsiliacos to testify.
By letter dated August 27, 1991, the General Counsel denied the
Charging Party’s request.
4 After ordering the Board agent to testify, Judge Shapiro closed
the record subject to the Board’s action on the instant appeal.
statement rights, the Respondent presented testimony
that after receiving the draft settlement in Case 32–
CA–22599 its labor relations representative telephoned
Tsiliacos and inquired whether the phrase ‘‘application
for reemployment’’ in the notice meant that the Em-
ployer could require returning strikers to file new ap-
plications and attend preemployment interviews. Ac-
cording to the Respondent, Tsiliacos advised that he
would check and get back to the Respondent. There-
after, Tsiliacos allegedly called the Employer’s rep-
resentative and said that there was no problem with
this requirement. On receiving the first letter request-
ing reinstatement from a striker, the Respondent con-
tends that it again called Tsiliacos and was told that
the interview/application requirement was lawful, and
that in conducting the subsequent interview/application
procedures, it relied on Tsiliacos’ interpretation of the
settlement. The Union has subpoenaed Tsiliacos to find
out what, if anything, he told Respondent.3
During the hearing, Administrative Law Judge
Jerrold H. Shapiro denied the General Counsel’s peti-
tion to revoke subpoenas served by the Respondent
and the Charging Party on Tsiliacos and directed him
to testify. Judge Shapiro found that ‘‘the testimony
arose out of such special circumstances and was so
clearly relevant and limited in scope, that, in this case,
it outweighed the principle of avoiding the appearance
of partisanship on the part of Board agents which
could result if they testify in ulp hearings.’’4
In his appeal the General Counsel contends that both
subpoenas should be quashed on procedural grounds,
that neither the Respondent’s nor the Charging Party’s
requests complied with the requirements of Section
102.118 of the Board’s Rules and Regulations which
require the General Counsel’s written consent for the
Board agent to testify, that the Rules further require
that the party requesting permission must specify the
nature of the proceedings and the purpose to be served
by the testimony, and that the one-line requests to the
General Counsel made by both parties are not in com-
pliance with the Rules, so that, standing alone, the fail-
ure to comply justifies the General Counsel’s refusals.
On substantive grounds the General Counsel argues
that Section 102.118 was established to preclude Board
agents from taking apparent partisan positions, that if
an agent testifies, such testimony will almost certainly
help one party and harm the other, and that while the
Board’s Rules and the General Counsel’s application
thereof are not absolute, no unusual circumstances are
present here which warrant requiring the Board agent’s
testimony.
With respect to the Respondent’s subpoena, the
General Counsel contends that Tsiliacos’ testimony is
unnecessary in that there is no evidence that Tsiliacos
relayed the Respondent’s position to the Union, that
even assuming Tsiliacos was requested to, and did,
convey this information to the Union, it is merely ‘‘in-
teresting information’’ which does not help the Re-
spondent’s case, and that withdrawal of the offer must
be conveyed by the Respondent, itself, so that the
judge’s ruling denying the petition to revoke should be
reversed.
Regarding the Union’s subpoena, the General Coun-
sel argues that again there are no compelling cir-
cumstances requiring Tsiliacos’ testimony, that assum-
ing arguendo that Tsiliacos told the Respondent it
could impose an application/interview requirement on
returning strikers, such does not privilege the Respond-
ent to impose an unlawful condition because reliance
on the advice of a Board agent is not a valid defense
to otherwise unlawful conduct.
In opposing the General Counsel’s appeal, the Re-
spondent contends, inter alia, that the subpoenas are
very narrowly drawn, thereby obviating any concern
that the parties are engaged in a ‘‘fishing expedition,’’
that the testimony of Field Examiner Tsiliacos is
sought with respect to two crucial and highly relevant
matters, that the relevance of such evidence is indis-
putable, that the Respondent’s final offer had been
withdrawn prior to the Union’s attempt to accept it,
that such withdrawal was confirmed by the Respondent
on several occasions in discussions with the Union,
and that the withdrawal of the final offer is further
confirmed by the deletion of language in the proposed
notice during settlement negotiations of the original
charge.
The Respondent also takes issue with the General
Counsel’s contention that the settlement agreement was
breached, that both the Region and the Respondent had
the right to waive certain obligations to achieve a set-
tlement, that the Region may impose conditions that
provide for less than full statutory compliance for the
purpose of avoiding litigation, and, accordingly, that
the standard for testing compliance with a unilateral
settlement is contractual in nature and subject to tradi-
tional contract principles. The Respondent also con-
tends that it should be able to rely on what it was told
by the Region, and that the Region cannot insist that
the same conduct which complies with Respondent’s
expectations gained from discussions with the Board
agent who proposed the agreement somehow fails to
comply with statutory duties owed to the Charging
Party.
The General Counsel’s appeal focuses on (1) the
communication, if any, between Agent Tsiliacos and
the Union or its representatives with respect to whether
Respondent’s October 16, 1990 final offer remained
495SUNOL VALLEY GOLF CO.
5 Although the Respondent’s and the Charging Party’s one-line re-
quests for permission for the Board agent to testify do not fully
comply with Sec. 102.118, the Board’s ruling, as was the General
Counsel’s, is based on the merits of the requests.
‘‘on the table’’ or had been withdrawn, and (2) what,
if anything, Agent Tsiliacos told Respondent’s rep-
resentative Lynn about the propriety of requesting an
application from and interview of returning strikers
under the terms of the unilateral settlement agreement.
Having duly considered this matter, the Board has
decided to grant the General Counsel’s appeal and, on
appeal, the judge’s rulings on the subpoenas are re-
versed, and the petition to quash both the Respondent’s
and the Charging Party’s subpoenas is granted.5
As to (1), it is undisputed that both the Respondent
and the Charging Party have testified with respect to
whether the Respondent’s ‘‘final offer’’ was with-
drawn prior to its acceptance by the Union on March
1, 1991. Viewing this matter in the light most favor-
able to the Respondent, the Respondent’s contentions
are limited to a claim that (a) the Board agent ‘‘must
have’’ conveyed to the Union the fact that the Re-
spondent’s final offer was no longer on the table and
(b) that the Union was (or should have been) aware of
the withdrawal of the offer as a result of the deletion
from the notice to employees of a provision to the ef-
fect that the final offer was still on the table when a
settlement was being discussed in Case 32–CA–11599.
With respect to (a), the Respondent does not claim
that it asked Tsiliacos to notify the Union that the offer
was withdrawn, and the Union denies that Tsiliacos
communicated this information to the Union. In these
circumstances, the Respondent is ‘‘fishing’’ for testi-
mony from Tsiliacos that he conveyed the information
to the Union. In balancing the policy reasons for not
involving Board employees as witnesses in Board liti-
gation against the Respondent’s mere speculation that
the agent might have served as the Respondent’s mes-
senger for conveying to the Union its withdrawal of its
offer, we find that the balance weighs against requiring
the agent to testify. As to (b), the Respondent is free
to argue that the different settlement agreements that
were discussed warrant drawing an inference that the
final offer was no longer on the table, so that, here
too, testimony from the Board agent is unnecessary.
In regard to (2), the Employer’s alleged reliance on
‘‘advice’’ from the Board agent with respect to rein-
stating strikers, there is even less reason to require the
field examiner to testify. The Board is not estopped
from proceeding against a respondent because of state-
ments made by a Board agent during the investigation
of a charge. See Dubuque Packing I, 287 NLRB 499,
542, 589 fn. 59 (1979); Dubuque Packing II, 303
NLRB 386 (1991). Accordingly,
IT IS ORDERED that the General Counsel’s appeal is
granted and the subpoenas are quashed. This matter is
remanded to the judge for further appropriate action.