Tri-Produce Co.

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 974 (N.L.R.B. 1990)

974
300 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
As the record, exceptions, and brief adequately present the issues and the
positions of the parties, the Respondent’s request for oral argument is denied.
The Respondent has also excepted to the judge’s recommended Order and
remedy which require, among other things, bargaining and backpay regarding
Parker and Firebaugh employees. In this regard, the Respondent represents that
it permanently closed its Parker facility following the 1987 season and that
it concluded with the Union in 1988 a valid successor agreement covering the
Firebaugh employees. We shall leave the resolution of these issues raised by
the Respondent’s exceptions to the compliance phase of this proceeding.
2 Members Cracraft and Devaney find no merit in the Respondent’s conten-
tion that it was privileged to withdraw its June 20 ‘‘offer’’ before the Union’s
notification to it that the ‘‘offer’’ had been ratified by the employees. They
agree with the judge’s finding, for the reasons stated by him, that on June 20,
1987, Union President Lyons accepted the Respondent’s contract proposal, and
they find that at that point the parties had reached a binding agreement. Even
assuming arguendo that the Respondent’s subsequent attempted withdrawal of
its ‘‘offer’’ occurred before the Respondent learned of the employees’ ratifica-
tion of the contract, the Respondent’s withdrawal was unlawful. The matter
placed before the employees for ratification was not merely an unagreed-to
proposal that the Union had consented to submit to the employees. Cf. Loggins
Meat Co., 206 NLRB 303 (1973). Moreover, the parties had not agreed that
the Respondent’s offer could be accepted only by a vote of the employees.
Under these circumstances, Lyons’ statement at the outset of negotiations that
any final agreement would be subject to employee ratification was not a condi-
tion precedent to forming an agreement but, rather, merely a limitation the
Union voluntarily imposed signifying that the rights and duties under any
agreement reached would not become effective until ratified by the employees.
See Sacramento Union, 296 NLRB 477 (1989). Additionally, it is clear from
Respondent Representative Barsamian’s insistence at the end of their June 20
meeting—that Lyons not depart as soon as the employees voted on ratification
but, rather, remain until a memorandum of their agreement was typed for his
signature—that ratification was viewed as a mere formality.
Chairman Stephens agrees that the Respondent violated Sec. 8(a)(5) by fail-
ing to execute the bargaining agreement negotiated by the parties, and timely
ratified by the employees, on June 20, 1987. In reaching this conclusion, he
finds it unnecessary to resolve the question whether employee ratification was,
on the one hand, merely a condition precedent (self-imposed by the Union)
to performance under an otherwise binding contract reached by the parties, or
on the other hand, the act of accepting a revocable offer so as to form a bind-
ing contract. For a discussion of this distinction, its legal ramifications, and
the problems attending the relevant Board’s precedents, see the Chairman’s
concurrence in Sacramento Union, supra. Even assuming that ratification fell
into the latter category, Chairman Stephens finds that given the fact that the
Respondent’s attorney specifically asked the Union agent Lyons not to leave
Parker, Arizona, as he had intended, but to wait until a memorandum of agree-
ment could be typed up for signature, the Respondent impliedly promised to
hold open its offer for a reasonable time so that ratification could be con-
cluded and execution obtained. The Respondent’s attempted withdrawal of the
offer so shortly after it was extended was ineffective.
1 Where not shown otherwise, all dates hereafter refer to the 1987 calendar
year.
Tri-Produce Company and Fresh Fruit and Vege-
table Workers, Local No. 78-B, United Food
and Commercial Workers International Union,
AFL–CIO, CLC. Cases 32–CA–9024 and 32–
CA–9054
December 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 28, 1989, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Tri-Produce Company,
Firebaugh, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Virginia L. Jordan, Esq., for the General Counsel.
Harry Finkle, Esq., with Ronald H. Barsamian and Neal E.
Costanzo, Esqs. (Finkle & Stroup), of Fresno, California,
for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Fresh
Fruit and Vegetable Workers, Local No. 78-B, United Food
and Commercial Workers International Union, AFL–CIO,
CLC (the Union) filed the charges in the above cases on
June 30 and July 8, 1987,1 alleging that Tri-Produce Com-
pany (Respondent or the Company) violated Section 8(a)(1),
(2), (3), and (5) of the National Labor Relations Act (the
Act). Based on those charges, the Regional Director for Re-
gion 32 of the National Labor Relations Board (NLRB or the
Board) issued a consolidated complaint and notice of hearing
before an administrative law judge in both cases. The com-
plaint alleges that the Respondent discriminated against its
employees and refused to bargain in good faith with the
Union, the collective-bargaining representative of its packing
employees.
The Respondent filed a timely answer wherein it admitted
certain foundational allegations, denied that it engaged in the
unfair labor practices alleged, and asserted a variety of af-
firmative defenses.
I heard this matter on February 9, 10, and 11, 1988, at
Fresno, California. Having now carefully reviewed the
record, considered the credibility of the witnesses who ap-
peared before me and studied the posthearing briefs filed on
behalf of the General Counsel and the Respondent, I have
concluded that the Respondent engaged in some of the al-
leged unfair labor practices on the basis of the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The complaint contains four salient allegations. First, it al-
leges that the Respondent unilaterally altered terms of em-
ployment without first bargaining with the Union when on
June 3 it notified certain of its employees that they must fur-
975TRI-PRODUCE CO.
2 Only the claim that the Union bargained in bad faith during the period rel-
evant to the complaint is treated in Respondent’s brief. As the charge was
timely filed and processed, and as the complaint clearly states a cause of ac-
tion, I find that the affirmative defenses related to the timeliness of the charge
and the adequacy of the complaint plainly lack merit. Accordingly, those
claims are not addressed further.
3 Respondent admitted that its direct outflow exceeded $50,000 in the year
preceding the issuance of the complaint. Accordingly, I find Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act, and that it would effectuate the purposes of the Act for the Board
to assert its jurisdiction in this labor dispute.
4 The Union is a labor organization within the meaning of Sec. 2(5) of the
Act.
5 Packers gross pay under the most recent agreement is not insubstantial. A
good packer earns from $1500 to $2000 per week when full operation is
achieved.
6 Throughout 1986, the Union maintained that both agreements had auto-
matically renewed. However, as the Company applied the agreements during
the 1986 season and the Union agreed to negotiate during 1986, this difference
had no practical effect.
nish evidence of citizenship or lawful employee status as a
condition of employment or reemployment, for reasons other
than the Immigration Reform and Control Act (IRCA), Pub.
L. 99–603, enacted November 6, 1986. Second, it alleges
that Respondent repudiated and refused to execute an agree-
ment concluded with the Union on June 20 applicable to its
Parker, Arizona, employees. Third, it alleges that Respondent
unlawfully refused to reinstate its striking Parker employees
following their unconditional offer to return to work. Finally,
it alleges Respondent unilaterally altered the wages, hours,
and terms of employment of its Firebaugh, California, em-
ployees before an impasse in negotiations with the Union.
Respondent specifically denied the unfair labor practices
alleged and asserted six affirmative defenses. Respondent’s
principal affirmative defense is that the Union engaged in
bad-faith bargaining at the times material to the complaint.
The remaining defenses assert the complaint is barred by the
6-month statute of limitations, laches and the clean hands
doctrine; and that it fails to state a cause of action as well
as facts sufficient to constitute a cause of action.2
B. The Evidence
1. Background
Respondent, a California corporation, is a nonretail enter-
prise engaged in the processing, sale, and distribution of can-
taloupes and honeydew melons.3 Respondent operates pack-
ing facilities at Firebaugh, California, near its headquarters,
and at Parker, Arizona, 500 or 600 hundred miles south of
Firebaugh. Both cantaloupes and honeydew melons are
packed at Parker; only cantaloupes are packed at Firebaugh.
Operations at the two packing sheds are seasonal. The
Firebaugh season lasts approximately 90 to 100 days begin-
ning about July 1. The Parker season begins about June 1
and lasts approximately 30 days. Typically, Parker employs
approximately 140 employees at the peak of the season and
50 to 60 percent of those employees then move to Firebaugh
for that season.
The Union has represented Respondent’s packinghouse
employees since 1961 when the Company commenced oper-
ations.4 The wages, hours, and conditions of employment of
Respondent’s employees have been contained in a series of
complex collective-bargaining agreements between Respond-
ent and the Union. Although all employees were ostensibly
in a single bargaining unit, separate agreements govern the
cantaloupe and honeydew melon operations, separate senior-
ity lists were maintained at the two locations, and wage dif-
ferentials have existed between the Firebaugh and Parker
cantaloupe employees. A piece-rate wage system applies to
employees who pack melons in shipping cartons.5 Other sup-
port workers are paid by the hour. All employees are pro-
vided fringe benefits, including health and life insurance, and
pension plans, which are said to be ‘‘shelf’’ plans provided
by the Western Growers Association (WGA).
For a number of years, Respondent belonged to the WGA,
which negotiated collective-bargaining agreements with the
Union on a multiemployer basis that included the Respond-
ent. Although Respondent apparently still belongs to the
WGA, Respondent and some other employers began negoti-
ating their own agreements with the Union separately in
1983. Two competitors operating in the Firebaugh area failed
to reach an agreement with the Union that year. After pro-
tracted strikes during which these two employers continued
to operate with replacement employees, the Union was decer-
tified. Respondent, however, concluded a separate cantaloupe
agreement and adopted a multiemployer honeydew contract.
The agreements contained identical health and pension plans
available through the WGA and were effective from March
16, 1983, to March 15, 1986.6
In addition to the changing labor relations climate, the
western fruit and vegetable packing industry has been under-
going technological changes. Although some employers still
utilize hand sorting and sizing methods, others, including the
Respondent, now sort and size primarily by machine. Yet
others have abandoned packing at central shed locations alto-
gether in favor of field packing. Both the mechanized sheds
and the field packing operations have substantially lowered
labor costs, making those employers more competitive. Field
packing in particular has exerted a significant downward
pressure on industry labor costs because field workers are
paid much lower wage rates and lack sophisticated fringe
benefit packages.
2. 1985–1986 bargaining
The initial bargaining session was held on November 8,
1985. Jess Telles, Respondent’s principal, if not sole owner,
Ronald Barsamian, a labor counsel, and Steve Patricio, com-
pany controller, were present for this meeting. The Union
was represented by its president, Michael Lyons, and a work-
ers’ committee. Among other matters, Telles informed the
union negotiators that Barsamian and Patricio did not have
authority to make proposals or conclude an agreement with-
out his prior authorization. For the Union’s part, Lyons in-
formed management that any final agreement would be sub-
ject to employee ratification.
Barsamian and Lyons were familiar as negotiators. They
had bargained prior agreements for Respondent and other
employers. Pertinent symbols and techniques peculiar to
them evolved from their prior bargaining. If one made a
package proposal, the other understood his sole option was
to accept or reject the entire proposal. In contrast, an item-
by-item proposal provided the option to accept certain items
while rejecting others. Finally, if either raised an ‘‘idea,’’ it
was implied that the subject matter had not been previously
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 At approximately this time, there was considerable publicity throughout
California concerning potentially dangerous levels of selenium in the
Kesterson Reservoir. This reservoir receives water runoff from the agricultural
land to the north where Firebaugh is located. Because some attributed the
source of the selenium to agricultural chemicals in the runoff water, proposals
were made to abate the flow of that water into the reservoir. In that event,
the utility of the adjacent land would have been greatly reduced.
8 Barsamian’s bargaining notes contain repeated references in the early ses-
sions to the Company’s desire for a 20-percent wage reduction. On the sur-
face, however, the Company’s April and July 1986 proposals seem to contain
wage reductions ranging from 35 to 50 percent below the levels specified for
the 1985 season in the parties’ last agreement. Raoul Gradillez’ testimony con-
cerning wage rates implemented at Firebaugh in 1987—supposedly based at
above the July 1986 offer—seems to confirm that the wage reductions sought
in mid-1986 were far more draconian than a 20-percent reduction.
9 After the first meeting in 1985, bargaining sessions were held on the fol-
lowing dates in 1986: April 7 and 29; June 3 and 25; July 3, 8, 9, and 21;
August 7, 15, 27, and 29; September 5 and 12; and November 11. In 1987,
bargaining sessions were held on January 15; February 2, 3, and 26; April 6,
7, and 22; June 11, 18, and 20; and July 1. In addition, the parties exchanged
a number of proposals in writing and the principal negotiators discussed their
differences on a number of occasions while engaged in bargaining other unre-
lated contracts.
cleared by a principal, i.e., Telles in Barsamian’s case, and
the workers’ committee in Lyons’ case. These bargaining
customs are central to the major issue in the case.
Telles spoke at length during the first bargaining session
concerning the Company’s competitive position in the indus-
try. Dwelling on the changes since the last agreement had
been negotiated, he painted a bleak picture. In addition to
stressing the changes in the industry, Telles told of the spe-
cific difficulties he faced obtaining production loans because
of the uncertainty about land values in the growing area
served by the Firebaugh plant.7
After Telles’ assessment, the Union surely was not sur-
prised when the Company later submitted written proposals
for substantial economic concessions, including wage reduc-
tions of 20 percent.8 The Union’s initial economic proposal
called for a wage freeze and only limited improvements in
the fringes. In June and September 1986 the Union, at the
Company’s insistence, sought ratification of company pro-
posals but, on both occasions, the proposals were defeated.
Nevertheless, the parties continued to bargain tenaciously to
narrow their differences.9
3. The early 1987 bargaining
The number of sessions in February and April 1987, indi-
cates the parties’ major effort to conclude an agreement prior
to the start of the 1987 season. A Federal mediator assisted
them to narrow many differences at a lengthy session on
April 22 in Firebaugh. Lyons and the workers’ committee
were present for the Union; Barsamian and Patricio were
present for the Company. The mediator separated the bar-
gaining teams throughout nearly all of this session and
served as a conduit to transmit proposals and evaluations.
Near the end, the Union offered the following package pro-
posal to modify the prior agreements:
—Reduce hourly wage rates 7.5%.
—Reduce the packer rate to $.13l4 per carton.
—Establish a $.005 per carton pool for hourly em-
ployees.
—Delete the average packer rate (an existing piece-
rate scheme).
—Adopt the new multi-employer honeydew agree-
ment.
—Establish a 52 hour work week target with any at-
tendant disputes to be resolved under the grievance-ar-
bitration provisions of the agreement. Pro rate the 52
hour work week concept based on the number of days
worked and make it inapplicable to the Firebaugh plant
for the first three pay periods and the last pay pe-
riod.I33—Pay $112 per month for a WGA medical plan
designated by the crew at the start of the season.
—Adopt WGA Pension Plan A with a l73 hour per
month per employee contribution cap.
—Agreement duration: To March l5, 1990 with a
June 1989 reopener.
This proposal was rejected for three principal reasons.
First, the Company felt the workweek target would, in prac-
tice, become a guarantee. Second, the Company opposed the
piece-rate scheme for the hourly employees. Third, the Com-
pany thought the Union’s medical plan proposal was too ex-
pensive. In response, the Company countered with the fol-
lowing package proposal designed to ‘‘buy out’’ objection-
able portions of the Union’s last proposal:
—Reduce hourly wage rates 7%.
—Reduce the packer rate to $.1310 per carton.
—No change in existing overtime rates.
—No pool for hourly paid employees.
—Delete the average packer rate.
—WGA Plan 24A medical benefit with a non-dupli-
cation feature for family members and permitting indi-
vidual waivers. Cost of buying up to more expensive
plan to be borne by employees.
—WGA pension Plan A with a 173 hour per month
contribution cap.
—Adopt the multi-employer honeydew agreement
but substitute the medical and pension plans from the
cantaloupe contract in the honeydew agreement.
—No 52 hour work week target but the Company
would agree to a stable work schedule policy. In return
for the wage concessions, Company would not inten-
tionally add packers to the seniority crew for the pur-
pose of cutting the work week. The grievance proce-
dure would be used to resolve disputes about the
applicationof the policy.
—Agreement duration: Same as the Union’s pro-
posal.
—Union and workers’ committee must fully rec-
ommend ratification.
Barsamian claims that when the mediator returned from
submitting the proposal, he reported that it appeared there
was agreement on all items except the 52-hour workweek
issue. At the conclusion of the session, Barsamian claims that
Lyons told him directly that the Company’s proposal ‘‘looks
pretty good . . . [but] there’s still some differences.’’ At the
time, Lyons mentioned that he was ‘‘trying to figure out how
we can resolve the work week.’’ When the Union team
began to leave as if to conclude the session, Barsamian,
Patricio, and the mediator followed.
At least Barsamian and Lyons spoke in the parking lot be-
fore going their separate ways. Lyons claims that Barsamian
focused exclusively on his concerns about the workweek tar-
get becoming a guarantee in this exchange so Lyons asked
about the other differences in the parties’ last proposals.
977TRI-PRODUCE CO.
10 Barsamian also claimed that he met with Lyons on other matters during
the interim and requested workweek language but it was not forthcoming. In
its brief Respondent argued at length on the basis of Barsamian’s testimony
and the two unanswered May letters that only the workweek issue remained
after the April 22 session. I do not credit that claim. Lyons’ position that other
issues remained is supported in a prehearing affidavit provided by Barsamian
in support of a bad-faith bargaining charge the Company filed against the
Union which the General Counsel dismissed. (See R. Exh. 35 at 6.)
11 The startup at Parker was delayed for about a week due to an electrical
fire which occurred during the shed reopening procedures.
12 The finding that a face-to-face exchange occurred between the negotiating
teams following lunch is based on a composite of Lyon’s testimony and
Barsamian’s prehearing affidavit. (R. Exh. 35, pp. 7–8.) I credit that version
as opposed to the testimony at hearing of Telles and Barsamian, both of whom
claimed that no such meeting occurred.
Lyons says that Barsamian told him not to ‘‘sweat the small
shit.’’
Barsamian claims that both Patricio and the mediator were
present when he spoke to Lyons in the parking lot. By his
version, Lyons agreed that the workweek proposal was the
only remaining issue but Lyons rejected the mediator’s sug-
gestion that the parties remain to iron out this remaining
issue. Instead, Barsamian claims, Lyons said he would sub-
mit some written language on the workweek issue in a few
days and departed.
Following the April 22 meeting no formal bargaining ses-
sions were held until the season started at Parker. However,
Barsamian wrote letters to Lyons on May 12 and 28 claiming
again that the workweek was the only outstanding issue. The
May 28 letter contained his suggested workweek language.
No response to either letter was forthcoming from Lyons. In
explanation, Lyons claimed that he never received the May
12 letter and received the May 28 letter so close to the next
bargaining session (set at some point for June 11) as to make
a response unnecessary.10
4. Preparations for the 1987 Parker season
In the meantime, the Company was making other prepara-
tions for the start of the 1987 Parker season. Customarily, the
Company notifies seniority workers of the starting date for
the Parker packing season. Patricio prepared a letter notice
in April or May announcing that the 1987 season would
begin in Parker on June 3.11
Based on information received from WGA, the letter also
set forth strict requirements for proof of work eligibility but
made no mention why such unusual forms of identification
were necessary. (See Jt. Exh. 3(ss).) The letter emphasizes
that the Company ‘‘cannot hire or rehire anyone without [the
specified identification documents]’’ and warns ‘‘[t]here will
be absolutely no exceptions.’’ The next paragraph states:
Please note that this is IN NO WAY related to the Im-
migration Reform and Control Act of 1986 (legalization
of illegal aliens).
Patricio altered a suggested WGA form letter to include
the quoted paragraph in order to avoid misleading any em-
ployees who might be considering an amnesty application
pursuant to IRCA. A copy of the letter was sent to Lyons
who promptly filed an NLRB charge. That charge was later
withdrawn.
5. Bargaining on June 11 and strike authorization
The June 11 bargaining session was held at the Canton
Cafe in Parker. Telles, Patricio, and Barsamian attended for
the Company; Lyons, Union Agent Thornton, and a worker
committee represented the Union. There is some indication
that the Union’s committee for this session differed signifi-
cantly from that which had attended the more recent ses-
sions; in particular, it appears that several workers classified
as sorters were now included on the committee.
Telles anticipated that an agreement would be concluded
quickly because he had been led to believe that only the
workweek issue remained unresolved. The opening of the
session focused on this issue. After a few remarks, Lyons
suggested that the Telles and the workers’ committee be left
to discuss the workweek issue. His suggestion was accepted;
Lyons, Thornton, and Barsamian then left the room.
While away from the bargaining table, Lyons spoke with
Barsamian about other outstanding differences between their
final proposals on April 22, i.e., the packer rate, and the mul-
tiemployer medical and pension plan in the honeydew agree-
ment. Barsamian replied that he did not anticipate a problem
with the packer rate but he would have to discuss the poten-
tial for movement on the honeydew fringes with Telles.
Just before lunchtime Barsamian and Lyons were sum-
moned back to the bargaining table. They were informed that
Telles and the committee had reached an understanding on
the workweek issue. Lyons requested a luncheon recess to
review the understanding with the committee. The company
negotiators reluctantly agreed.
After lunch, Lyons inquired about other outstanding issues
and disclosed that the sorters (one group of hourly paid em-
ployees) now insisted upon a wage freeze rather than a 7-
percent reduction as proposed by the Company.12 Surprised
by this sudden change of position, Barsamian quickly re-
quested a private side bar with Lyons. While aside, Lyons,
looking embarrassed by Barsamian’s account, confessed that
the committee was ‘‘screwing’’ him. After the two returned
to the table, Telles announced that the Company would not
move its last proposal on April 22. The Company insisted
that the Union ratify that proposal. Lyons protested initially
but finally agreed to seek ratification in the next day or two.
It is undisputed that even though the Company’s outstanding
package called for a wage reduction, it had agreed not to im-
plement that reduction for the remainder of the Parker sea-
son.
At some point on June 11—it is not entirely clear when—
Lyons asked Barsamian about the Company’s need for per-
sonal identification as outlined in Patricio’s letter. Lyons did
not believe the identification was necessary if it was not
being requested for compliance with IRCA. Barsamian was
unfamiliar with the matter but promised to obtain an answer
for Lyons.
On June 12, the Union held a ratification meeting. The
ratification proposal was cast in terms authorizing the Union
to call a strike if the Company’s offer was not ratified. The
membership rejected the Company’s April 22 offer but no
immediate strike was called.
6. June 18 events—The Parker strike
Arrangements were made to resume negotiations on Thurs-
day, June 18. However, that morning a notice was posted by
at least one of the timeclocks which stated that no paychecks
would be issued until all employees had submitted the re-
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 This notice was apparently posted only in the cantaloupe shed. According
to Lyons, the dock foreman and the honeydew foreman both told him that
morning that they had been instructed to withhold checks in their possession
until the proper documentation had been received and both refused. Lyons ob-
served checks being issued in both areas before noon.
14 Respondent concedes that replacement employees utilized on Friday, June
19 were not permanent as they were primarily field workers from the farms
supplying produce to the Company.
15 Lyons said this proposal included the $.1310 packer rate, the verbal work-
week agreement, the $112 medical insurance contribution by the Company, no
$.005 pool for hourly employees and ‘‘me too’’ the multiemployer honeydew
agreement.
quired proof of work eligibility.13 Considerable employee
discontent erupted. Thursday was the customary payday and
the expired agreement required that paychecks be issued by
noon. As most employees were not residents of Parker, many
required cash to meet their current away-from-home living
expenses.
Barsamian visited the plant prior to the scheduled bar-
gaining session. There, he encountered Lyons speaking to a
group of employees in the parking lot. When Barsamian ap-
proached, a verbal altercation broke out primarily between
Dennis Wren, a member of the workers committee, and
Barsamian. After the shouting subsided, Barsamian promised
that he would attempt to resolve the paycheck matter.
Barsamian first telephoned Patricio who explained the
need for the work eligibility proof. Then Barsamian drafted
a declaration (required by IRCA) and instructed the office
staff to secure all identification documents possible at that
time. Barsamian also removed the disquieting paycheck no-
tice.
Near the end of this process, Barsamian claims that Lyons
came to the plant office with a form declaration which could
have been used in place of the form Barsamian drafted. Per-
turbed by Lyons belated offer, Barsamian expressed his lack
of appreciation for Lyons’ attitude including the parking lot
confrontation. Purportedly, Lyons said that he was amused at
Barsamian’s predicament. Lyons denied that he made light of
Barsamian’s problem; he claims to have only made an effort
to see that the paychecks were issued.
By shortly after noon paychecks were issued and arrange-
ments were made to excuse employees from work for brief
periods to cash their checks. There is no evidence that this
matter produced any further similar disruption.
Barsamian arrived at the Kofa Cafe in Parker between
2:30 and 3 p.m., the time and place of the scheduled bar-
gaining session. Lyons, Union Agent Thornton, and the
workers’ committee were already engaged in a private meet-
ing when Barsamian arrived and requested further delay. At
approximately 4 p.m. bargaining began. Following prelimi-
nary exchanges concerning the problems that morning and
another current complaint, Barsamian said the Company had
no additions to its final proposal of the April 22 but it was
still on the table. In an effort to avoid an impasse, Lyons of-
fered an item-by-item proposal.
By Barsamian’s account, Lyons detailed the Union’s posi-
tion on each item in the expired agreement. When finished,
the Union’s position essentially called for a complete re-
newal of the prior cantaloupe agreement but for its willing-
ness to accept, the Company proposed WGA Plan A pension.
The Union also proposed that the Company completely ‘‘me
too’’ the multiemployer honeydew agreement. Notwith-
standing the item-by-item proposal, Lyons maintains that the
Union still had a package proposal on the table but there is
no agreement that a package proposal was discussed in any
detail.
Barsamian caucused to speak with Telles by telephone
about the Union’s item-by-item proposal. Upon returning to
the table, Barsamian responded to the Union’s proposal item-
by-item. Following that, Barsamian offered an item-by-item
proposal and told the Union that where the respective pro-
posals differed, the Company rejected the Union’s proposal.
A dinner break followed. During this period, Barsamian
claims that he had a discussion with Lyons during which
Lyons discussed certain ideas. Those ideas included—accord-
ing to Barsamian—the subjects of reopeners, a freeze on all
wages, deleting the average packer rate, and insurance with
premiums entirely paid by employees. Although Lyons ex-
pressed uncertainty about his ability to sell these ideas to his
committee, Barsamian attempted to confer with Telles about
this news but failed.
When the parties returned to the table about 8 p.m.,
Barsamian reported that he had no new proposals because he
could no longer reach Telles by telephone. As the two sides
were stymied by Barsamian’s inability to communicate with
Telles, the parties agreed to conclude their session and meet
the next morning.
After the bargaining adjourned, Lyons reviewed the situa-
tion with the workers’ committee. Because there was senti-
ment on the committee favoring an immediate strike, Lyons
polled the committee members. A majority were not in favor;
the minority favoring a strike walked out after one stated,
‘‘we’re going to do what we’re going to do.’’ The statement
was prophetic; later that evening when Lyons visited a local
market he learned by chance from an employee that employ-
ees had walked out on strike shortly after 9 p.m.
The following morning Barsamian was preoccupied with
securing temporary replacement employees14 while Lyons
was preoccupied with picket line logistics so the planned bar-
gaining session did not occur.
On the morning of June 20, the Company commenced hir-
ing permanent replacements for the striking cantaloupe em-
ployees. These replacements were told that the Company
could not guarantee their jobs in case there was a strike set-
tlement which required reinstatement of the strikers.
7. June 20 bargaining—The alleged agreement
Later in the morning of June 20, Barsamian met with
Lyons and Thornton at the Kofa Cafe. The substance of this
meeting and the events which followed shortly thereafter are
hotly disputed and critical to the most significant portion of
the case.
a. Lyons’ version
When the meeting began, Lyons made a package offer to
settle the strike.15 Barsamian told Lyons he would discuss
the proposal with Telles and left for a period estimated to
be between 20 to 40 minutes.
On his return, Barsamian presented the following proposal:
(1) split the unit so there would be separate units at Parker
and Firebaugh; (2) freeze the Parker agreement for the
present year but have a wage reopener in the next 2 years;
(3) start negotiations for a Firebaugh agreement the next day
from the positions which existed on June 18; and (4) ‘‘me
979TRI-PRODUCE CO.
16 Richard Telles, Jess Telles’ brother, had an undivided half interest in the
cantaloupes packed at Parker but no longer held any interest in the packing-
houses. Whether Lyons was aware of the business relationship between the
Telles brothers is not known.
17 Barsamian summarized the meaning of his Firebaugh idea as follows:
‘‘[i]f we’re at impasse, we’re at impasse. If we’re not at impasse, we’re not
at impasse. Wherever your proposal is, wherever our proposal is, we’re not
touching that.’’
too’’ the multiemployer honeydew agreement with the
amended Plan A pension as required by the pension trust and
without the 35-hour workweek guarantee. Lyons quickly told
Barsamian ‘‘he had a deal’’ and that he would take the
agreement to ratify it. Lyons asked about the ‘‘scabs’’ and
Barsamian responded that they were ‘‘temporary’’ pending a
‘‘resolution with the Union.’’
The meeting ended with a handshake between Lyons and
Barsamian. Lyons announced that he planned to leave imme-
diately after ratifying the agreement for his El Centro, Cali-
fornia, office as he had another pressing matter. Barsamian
asked that Lyons not depart Parker until a memorandum of
their agreement was typed for signature at the plant office.
Lyons agreed and left for the picket line where he obtained
ratification of the agreement.
b. Thornton’s version
By Thornton’s account of the June 20 Kofa Cafe session,
Lyons first outlined the Union’s bottom line for resolving the
strike. Barsamian then left purportedly to speak with Telles.
After about 45 minutes Barsamian returned with a proposal.
Thornton claims that Barsamian proposed to split
Firebaugh and Parker into separate units; to freeze the last
cantaloupe agreement in place at Parker with a reopener in
the ‘‘next two years’’; to negotiate immediately for a sepa-
rate Firebaugh agreement; and to adopt the multiemployer
honeydew contract in its entirety.
On direct examination, Thornton implied that the
Barsamian proposal included the previously proposed pen-
sion cap. Otherwise, the pension and insurance plans applica-
ble to Parker would be as negotiated in the prior cantaloupe
agreement and the multiemployer honeydew agreement.
When asked later to recount again the agreement reached,
Thornton made no mention of the pension cap; instead, he
stated flatly that the pension and insurance plans at Parker
(which would include both the cantaloupe and honeydew
workers) would be as specified in the prior cantaloupe agree-
ment and the existing multiemployer honeydew agreement.
Thornton said that Lyons accepted Barsamian’s proposal
and that the two then agreed that all replacement employees
would be laid off in a day or two so the strikers and replace-
ments would not be working side-by-side. When Lyons sug-
gested that he was leaving immediately, Barsamian urged
Lyons to ratify the proposal while he returned to the Com-
pany office to prepare a typed memorandum of agreement.
Lyons agreed and the meeting ended with a handshake.
c. Barsamian’s version
Barsamian’s account of the meeting varies substantially
from that of Lyons and Thornton. After a preliminary ex-
change in which Lyons set forth what the Union had to have
to settle the strike, Barsamian left to speak by telephone with
Telles. During their conversation, Telles rejected the Union’s
proposal as well as an idea purportedly floated by Lyons that
a Parker agreement be consummated between Richard Telles
and the Union.16
Thereafter, Barsamian said he offered some ideas of his
own to Telles. Those ideas were: (1) adopt a freeze at Parker
for the balance of the cantaloupe season without an agree-
ment; (2) ‘‘me too’’ the multiemployer honeydew agreement
except substitute the medical plan proposed previously by the
Company, cap the pension contributions at 173 hours per
month and eliminate the workweek provision in the honey-
dews agreement; and (3) negotiate for a Firebaugh contract
from the current positions.17
Telles provided Barsamian with his ‘‘initial’’ impressions
but would not commit himself because he felt pressure from
his brother to consult about any proposed contract. In addi-
tion, Telles told Barsamian that he wanted also to check the
condition of the fields with his son. Barsamian told Telles
that in the meantime he planned to discuss this idea with
Lyons to see if there was any interest on the Union’s part.
Telles told him ‘‘great, go for it.’’
Back at the Kofa Cafe, Barsamian outlined his idea to
Lyons in Thornton’s presence. Barsamian described the
scene:
I went back in. I went back to the booth. Mike and
Jiggs [Thornton] were still there. It’s in the back booth,
in the back of the restaurant. I sat down. I spoke first.
I told Mike, look, I’ve got an idea. Jess is still thinking
about it. How does this sound to you? . . . We’ll freeze
Parker. We’ll negotiate Parker separately. It doesn’t
mean there’s a contract or there’s reopeners. We’ll ne-
gotiate Parker separately, but at least for this season
we’ll freeze it.
For honeydews, my idea would be that we accept the
honeydew agreement like we’ve always proposed, but
without the medical and pension and work week. On
Firebaugh, my idea is, wherever we are in negotiations
now, we continue negotiating for the upcoming
Firebaugh season.
Mike then responded immediately that he liked it. He
said he had to get back to El Centro to write a brief.
At that point, I told him to whoa, to stop. Put my hands
up. I said, you go back and talk to your people. We’ve
already had many problems with you telling us what
you think you can do, and then finding out you can’t.
I still have to talk to Jess. He’s still trying to find out
from Jay [Telles’ son] what’s going on.
. . . .
I then told him that after we checked with our re-
spective people, if we have an agreement, [and] work
out all the details, we’ll put it in writing.
As the meeting was concluded, Lyons asked if the Com-
pany planned to bypass any of the fields. Barsamian said that
Telles was currently inquiring about that point so he had no
answer. Barsamian then left for the company office.
d. Barsamian’s prehearing affidavit
In his prehearing affidavit, Barsamian states that he met
with Lyons and then returned to the plant where he relayed
Lyons’ proposals to Telles. In response, Telles told him that
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Richard Telles’ role at this point is entirely unclear. In any event, Jess
Telles later stated that his brother essentially told him to do whatever he want-
ed as far as the negotiations were concerned.
19 Employees at the picket line who testified uniformly recalled that Lyons
left with Barsamian for the Kofa Cafe that morning. Barsamian and Lyons,
however, are in agreement that Thornton, not Lyons, rode to the Kofa Cafe
with Barsamian that morning.
20 Lyons gave the highest estimate of the number of employees present for
the ratification vote. Striking employees who were present gave varying esti-
mates ranging from 40 to 75 employees present.
he wouldn’t mind a freeze in Parker, continue negotiations
for a Firebaugh contract and ‘‘[m]aybe we could give them
the honeydew agreement.’’ Barsamian told Telles that he
would try out some of these ideas and returned to the Kofa
Cafe to meet further with Lyons and Thornton.
When Barsamian set forth Telles’ idea or proposal Lyons
told him ‘‘great’’ and reported that he had to leave for El
Centro. Barsamian prevailed upon Lyons to ‘‘speak’’ with
his people while he spoke with the company officials ‘‘and
that if we had an agreement we would put it in writing.’’
After the Kofa Cafe meeting concluded, Barsamian’s affi-
davit states that the company officials mulled over this form
of resolving the dispute for about two hours before con-
cluding they did not benefit by it. For this reason, and be-
cause the Parker shed was already fully staffed with replace-
ments, the Company rejected this resolution.
e. Telles’ version
Telles recalled three telephone exchanges with Barsamian
on June 20. In the first telephone call Telles merely author-
ized Barsamian to meet with Lyons. No proposals were dis-
cussed.
About 30 minutes later, Barsamian called Telles again to
report Lyons’ demands to settle the strike. Telles rejected
those demands. Thereafter, Barsamian reported that he would
return to speak further with Lyons as he had some ideas. On
direct examination, Telles gave no indication that there was
any discussion of Barsamian’s ideas. On cross-examination,
Telles stated that he could not recall if any specific ideas
were discussed. Yet Telles advised Barsamian that he ‘‘felt
obliged’’ to discuss the whole matter with Richard Telles be-
fore making any final decisions.18
After another 30 or so minutes, Barsamian called Telles a
third time. On this occasion, Barsamian told Telles that the
Union wanted a freeze at Parker under a 2-year ‘‘deal’’ with
reopeners. Telles also thought the idea also included further
negotiations for a Firebaugh agreement. Telles described his
response this way:
[R]on, I told you this earlier, that I wasn’t interested
. . . I had a little concern with Dick . . . I’ve talked
to Dick, and . . . Dick has told me . . . you do what-
ever you want to do in this connection . . . Ron, we’re
not settling it . . . I’ve taken the beating. When I need-
ed help they didn’t help me . . . everything’s lost down
there anyway . . . and then on top of it . . . even if
we could pack melons, we couldn’t sell ’em. And our
packing costs were in excess of . . . the market price.
f. Events after the Kofa Cafe meeting
Several striking employees were on the picket line at the
Parker facility when the events of June 20 developed. Dennis
Wren recalled that Barsamian first drove out of the parking
lot and stopped for Lyons who entered Barsamian’s car.19
The two men then drove off together in the direction of the
Kofa Cafe.
Later, while Wren was still at the picket line, he observed
Barsamian return alone in his auto. On this occasion, Wren
asked how things were going and Barsamian responded, ‘‘I
think we’ve almost got it worked out.’’ Yet later, Wren was
standing near the plant entrance gate when Barsamian again
approached in his auto. On this occasion, Barsamian flashed
an ‘‘o.k.’’ gesture with his thumb and forefinger in Wren’s
direction.
Larry Hall, another striker, claimed to have seen
Barsamian and Lyons drive away from the picket line to-
gether in the direction of the Kofa Cafe at about 10 or 10:30
a.m. At approximately 11 or 11:30 a.m. Hall observed
Barsamian return to the plant office alone. Hall walked to the
Kofa Cafe where he asked Lyons about the progress in nego-
tiations. Lyons reported that the two sides were ‘‘getting
closer.’’ Hall left before Barsamian returned but again ob-
served Barsamian return to the plant office, flashing the
‘‘o.k.’’ gesture as he went through the plant gate.
Raoul Gradillez, a striker who had been a member of the
Union’s worker committee through much of the negotiations,
recalled that Lyons approached the picket line about 1 p.m.
on June 20. At this time Lyons told Gradillez that he had
come to an agreement and instructed Gradillez to gather the
employees near the plant gate—located 100 to 150 yards
away from the plant office by Lyons’ estimate—if they want-
ed to vote on it.
Lyons said that he returned to the picket line after con-
cluding the Kofa Cafe session with Barsamian on June 20
and ratified the agreement reached. He estimated that there
were approximately 100 employees present at the time.20
Some of the strikers present for the ratification reported
that the unanimous or near unanimous vote to approve the
accord reached was accompanied by considerable commo-
tion, an emotion evoked by a welcome end to the strike.
When the ratification process was concluded, Lyons waited
for Barsamian near the gate for a short period before an-
nouncing that he intended to go to a nearby convenience
store for a drink and to telephone his office.
After Lyons departed, Barsamian emerged from the office
carrying a yellow writing pad in his hand. He approached
Gradillez near the plant gate and inquired of Lyons’ where-
abouts. Gradillez told him that Lyons had left to make a tele-
phone call and would return soon. Gradillez then asked when
employees would be going back to work. Barsamian waived
the yellow pad at Gradillez and replied, ‘‘as soon as Mike
signs the paper . . . .’’ Barsamian then retreated part way
back into the parking lot where he was photographed a very
short time later. That photograph (G.C. Exh. 3) shows
Barsamian holding a yellow writing pad, Gradillez in the left
foreground, Stephan Cubarulla, the sorters’ steward, in the
right foreground gesturing with his left thumb pointed up,
and the gate guard in the right background.
As Lyons approached the plant gate on his return from the
convenience store Jay Telles stepped from the office and
hailed Barsamian to come to the office. Lyons trailed
Barsamian up to the office door but did not enter. After wait-
ing a short period for Barsamian to return, Lyons returned
981TRI-PRODUCE CO.
21 There is evidence that the Union picketed after June 20 with signs claim-
ing that employees had been locked out.
to the vicinity of the gate where he waited for 15 or 20 min-
utes until Barsamian emerged from the office. The two men
walked toward each other meeting in the middle of the park-
ing lot.
When they met, Lyons said that Barsamian told him that
there was no agreement because Telles had ‘‘pulled it off the
table.’’ Lyons protested vehemently. Barsamian argued that
the proposal was off-the-record; Lyons retorted that he did
not ratify off-the-record proposals. Lyons then stated that he
wanted everyone put ‘‘back to work’’ and that if Barsamian
did not want to take the workers back, he’d let the Board
settle the matter. After trading ‘‘a few profanities,’’ the ex-
change ended.
Barsamian said that after the Kofa Cafe meeting ended, he
returned to the plant office and spoke by telephone with
Telles. As noted above, Telles told Barsamian that he had
decided that Barsamian’s ideas produced no gain for the
Company. Thereafter, Barsamian remained in the office for
a period of time watching from a window for Lyons’ auto.
Finally, Barsamian walked out to the plant gate to look for
Lyons or his auto but did not see either so he made several
inquiries of Lyons’ whereabouts before learning that Lyons
had left to make a telephone call and would be returning.
After waiting in the lot for a period of time, he returned to
the office. As he approached the office, Jay Telles was stand-
ing outside and reported that Barsamian had a telephone call
from another client.
Barsamian remained in Jay Telles’ office until he observed
Lyons reappear. He then left the office and met Lyons half
way into the lot. When they met, Barsamian told Lyons there
was no deal because ‘‘Jess does not want to go through with
anything like that.’’ He explained that the elder Telles did
not understand why he should provide the increases called
for in the honeydew agreement when he was not getting the
cuts he wanted in the cantaloupe agreement. Lyons insisted
that the two sides had a ‘‘deal.’’ Barsamian responded that
Lyons did not know what he was talking about because the
final Kofa Cafe exchange was only an idea and, even though
the workers were in favor of it, his side was not. After some
strong words the exchange ended.
Lyons reported to the group of workers gathered outside
the fence that there was no agreement. He claims that he told
the employees to go back to work under any conditions even
if the Company wanted to pay the minimum wage and that
he would file a charge with the Board or a grievance to settle
the matter. At approximately 2 p.m., Lyons left to return to
his El Centro office.
Barsamian denies that he told Lyons or anyone else at
anytime on June 20 or thereafter that the two sides had a
deal. He further denied that he told anyone at anytime that
he was ‘‘in the process of writing up an agreement.’’
Barsamian did not specifically deny the exchange near the
gate reported by Gradillez; he could not recall with whom
he spoke when he went to the gate in search of Lyons.
8. Return to work offers
Don Montgomery, a dock loader in the dock area and an
employee since 1976, called Foreman Matt Forstedt about 3
p.m. on June 20. He told Forstedt that Lyons had told the
crew to call about returning to work. Forstedt asked for an
opportunity to check with the company office and requested
that Montgomery call back later. About an hour later, Mont-
gomery telephoned Forstedt again and was told that no one
seemed to know what was going on. Forstedt asked for and
received Lyons’ office and residence telephone numbers. He
told Montgomery to check back with him the following day.
About 6 p.m. on June 21, Montgomery met Barsamian on
the street in Parker. Barsamian told Montgomery that he
would have to speak with his assistant, Michael Kimbrough,
at the company office about returning to work. Yet later that
day Montgomery telephoned Kimbrough and told him that he
had been told (presumably by Lyons) to return to work.
Kimbrough told Montgomery that he was taking names as
people called in for a preferential hiring list and that the
Company would be taking the strikers back as the replace-
ments left. Montgomery testified that Kimbrough also told
him that he would be crossing his own picket line if he re-
turned to work. When Montgomery told Kimbrough that
there was no picket line anymore, Kimbrough said ‘‘as far
as the company’s concerned the picket line’s still there . . .
[i]f you come in, you’ll be crossing your own picket line,
you’re not in the union.’’
The following day, June 22, Montgomery spoke with
Kimbrough and Forstedt in front of the company office.
Montgomery claims that Kimbrough told him that the Com-
pany was only recalling people from the preferential list and
that seniority would not apply. Forstedt interrupted to tell
Montgomery to be at work the following morning at 8:30.
Apparently speaking to Kimbrough, Forstedt asserted, in ef-
fect, that he needed people who could do the work he had
to do and that he could not use simply the first person who
came up on the list. As Forstedt started to walk away, he
told Montgomery to have his wife and son report for work
at the same time.
At approximately 7:30 a.m. on June 22, Montgomery re-
ceived a message to telephone the Company. On this occa-
sion Montgomery again spoke with Forstedt who told him
not to bring anyone to work yet because it was still unclear
what was going on. Forstedt asked Montgomery to call back
in about an hour. When Montgomery called Forstedt as in-
structed, he was informed that there was another picket line
at the Company and that he should not return to work.21
Montgomery next worked for the Company when the season
began in Firebaugh.
Early on June 21, a group of striking employees gathered
in Gradillez’ motel room as he was one of the few with a
telephone. Gradillez estimated that the group eventually grew
to about 25 employees and that about 10 of the employees
called the Company’s office about returning to work.
Gradillez telephoned the Company office about 8:30 a.m.
He spoke with an office employee, gave her his name and
told her that he was reporting for work. He was told that he
had been permanently replaced but that his name would be
put on a ‘‘waiting’’ list. Although Gradillez remained in
Parker for another 3 days he was never recalled to work.
However, Gradillez was hired for work in Firebaugh when
that season started in the early part of July.
Dennis Wren telephoned the company office from
Gradillez’ room about 9:45 a.m. and spoke with Kimbrough.
Wren told Kimbrough that he was checking in for work.
Kimbrough told Wren that he had been replaced and that his
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
name would be put on a preferential hiring list. Wren
thanked Kimbrough and the conversation ended.
Shortly after 10 a.m., Wren telephoned the company office
again and spoke with Kimbrough. On this occasion, Wren
told Kimbrough that he was calling on behalf of the entire
cantaloupe crew to inform the Company that they were all
ready, willing and able to return to work. Kimbrough asked
if they were returning unconditionally. Wren stated that they
were returning ‘‘as per the contract we ratified the day be-
fore.’’ Wren did not await a response from Kimbrough.
Wren was not recalled for work in Parker.
Larry Hall also telephoned the company office that morn-
ing from Gradillez’ room. He spoke with Kimbrough. Hall
told Kimbrough that he was calling to find out when he
could begin working. Kimbrough asked if Hall was willing
to cross a picket line. Hall responded that the Union did not
have a picket line because there was an agreement.
Kimbrough then asked if Hall would be willing to return to
work unconditionally and sign a form denouncing the Union.
Hall told Kimbrough that he would not be willing to de-
nounce the Union but that he would come back to work
‘‘with our agreement.’’ When Hall learned from Kimbrough
that a hiring list was being kept, he asked to have his name
included as the number ten packer, a position he wanted
when recalled. Kimbrough told Hall that employees would be
hired from the list in the order of their telephone calls.
Sometime in the afternoon of June 21, Barsamian tele-
phoned Lyons at his residence in El Centro. The apparent
purpose of this call was to inquire about the nature of
Wren’s call to the Company that morning on behalf of the
entire cantaloupe crew. According to Lyons, he was still
upset at Barsamian over the events of the prior day.
Barsamian told Lyons that Wren had made an ‘‘uncondi-
tional offer for everybody to go back to work.’’ Barsamian
asked Lyons who spoke for the Union. Lyons told Barsamian
that he knew who spoke for the Union and told Barsamian
not to bother him at home anymore.
In sum there is no evidence that any of the Parker strikers
returned to work at Parker during the 1987 season.
9. The alleged impasse and changes at Firebaugh
Meanwhile, Barsamian sent a mailgram to Lyons on June
22 declaring that the Union’s ‘‘regressive and bad faith bar-
gaining’’ as well as the strike of June 18 had produced an
impasse. This message further stated that the Company’s last
package proposal (made on April 22) remained on the table
but the Company retained the right to withdraw or amend it
and to change the existing wages and working conditions. (Jt.
Exh. 3(ii).)
Lyons responded with his own June 22 mailgram claiming
that the Union accepted the Company’s June 20 proposal and
that the Company was locking employees out at Parker. Fi-
nally, Lyons reiterated that the employees were ready to ‘‘re-
turn to work.’’ (Jt. Exh. 3(jj).)
Barsamian promptly responded by inquiring (rhetorically)
if the Union’s claimed agreement was based on acceptance
of the Company’s April 22 offer and denying that there was
a lockout. (Jt. Exh 3(kk).)
On June 23, Barsamian sent another mailgram to Lyons
withdrawing the April 22 package proposal, requesting that
further bargaining be arranged through a Federal mediator
and advising that the Company’s last article-by-article pro-
posal remained on the table. (Jt. Exh. 3(ll).)
Lyons responded claiming again that an agreement had
been reached and ratified on June 20. Lyons further denied
that the Union had bargained in bad faith and asserted that
the Union intended to seek redress with the Board and the
courts for actions of the Company and its representatives. (Jt.
Exh. 3(mm).)
On June 24, Barsamian wrote Lyons to review recent
events from the Company’s perspective. Barsamian advised
that the Company was now withdrawing its last article-by-
article proposal and again claimed that an impasse had been
reached in negotiations. Because the Company believed an
impasse had been reached, the letter advised that new eco-
nomic terms would be implemented when the Firebaugh sea-
son began. (Jt. Exh. 3(nn).) A copy of those terms was in-
cluded in the letter to Lyons and was posted on the entrance
gate at Firebaugh when employees arrived to start the season.
There is no evidence that a strike occurred at Firebaugh.
The Federal mediator apparently called a further meeting
between the parties on July 1 but it produced no change in
positions. Further brief and unfruitful sessions were held on
July 6 and 13.
C. The Argument
1. By General Counsel
On the proof of work eligibility issue, the General Counsel
argues that as Patricio’s letter specifically states that the re-
quirement was unrelated to IRCA and as no such require-
ment previously existed, Respondent was legally obliged to
negotiate with the Union concerning this change as well as
withholding pay as a means of compelling compliance. As
Respondent implemented the change without prior bar-
gaining, it violated its statutory duty to bargain.
As for the June 20 agreement issue, the essence of the
General Counsel’s argument is that the credible evidence es-
tablishes the existence of an agreement which Respondent is
obliged execute when reduced to writing and to implement.
This agreement, the General Counsel contends, has a domino
effect on the issues related to the 1987 wage and benefit
changes made at Firebaugh as well as Respondent’s obliga-
tion to reinstate the striking Parker employees. If, as the
General Counsel contends, an agreement came into fruition
on June 20, the terms of that agreement contemplated further
negotiations for a separate Firebaugh agreement from the po-
sition which existed on June 18. As those negotiations did
not occur because of the dispute which erupted over the June
20 agreement question, no bona fide impasse occurred con-
cerning Firebaugh which would privilege the changes made
by the Respondent at the start of the 1987 season there.
Moreover, the General Counsel believes that one of the pro-
visions of the June 20 agreement which Respondent unlaw-
fully refused to implement specifically involved the under-
standing that replacement workers would be laid off to make
room for returning strikers.
Even assuming that no agreement was concluded on June
20, the General Counsel still contends that the Firebaugh
changes were unlawful for two reasons. First, she argues that
the events of June 20 at least reflected movement on both
sides which precludes finding that an impasse existed. Sec-
ond, even assuming that an impasse existed, the changes
983TRI-PRODUCE CO.
were unlawful because they were not reasonably encom-
passed in any prior proposal made by the Respondent.
Finally, the General Counsel argues that Hall’s testimony
concerning his telephone conversation with Kimbrough on
June 21 is reliable and provides the basis for finding that Re-
spondent conditioned his reinstatement on his willingness to
renounce the Union.
2. By Respondent
Respondent contends that the General Counsel misreads
Patricio’s letter and distorts its meaning. In effect, Respond-
ent asserts that the proof of work eligibility requirement was
imposed by IRCA and it had no choice concerning its imple-
mentation. Therefore, Respondent believes there was really
nothing to negotiate and it did not violate the Act by failing
to bargain concerning its implementation with the Union.
Respondent claims any finding of a June 20 agreement is
unwarranted for a variety of reasons. First, Respondent
claims there was no meeting of minds on at least three mate-
rial terms, to wit, the health and pension plans in the hon-
eydew agreement, the contract term, and the scope of the
Parker ‘‘reopeners.’’
Second, Respondent argues there was no June 20 agree-
ment because the conditions precedent at the outset of nego-
tiations were not met. Specifically, Respondent argues that
under those conditions any agreement concluded by the ne-
gotiators was still subject to Telles’ approval as well as
union membership ratification. Respondent asserts that Telles
declined to approve the agreement when Barsamian returned
from the Kofa the second time on June 20 but in any event
the ratification is flawed.
Third, Respondent contends that there was no agreement
because the offer was withdrawn before any acceptance was
communicated. Central to this argument is the Respondent’s
contention that Barsamian informed Lyons that Telles had
withdrawn the offer before Lyons communicated the fact of
ratification to Barsamian.
Believing that no binding agreement was concluded on
June 20, Respondent argues that there is insufficient evidence
that an unconditional offer to return to work was made by
or on behalf of the strikers. Respondent contends that as
Lyons did not elaborate on the precise terms under which he
was offering to put everyone back to work, no basis exists
to conclude that this June 20 statement of Lyons was an un-
conditional offer.
Respondent further argues that the credible evidence estab-
lishes that none of the strikers were informed that they would
have to renounce, denounce, or resign from the Union when
they reported that they were available for work.
Respondent argues at length that as of June 20 the parties
had reached an impasse in negotiations which privileged the
unilateral changes made at the start of the 1987 Firebaugh
season. The changes implemented there, according to Re-
spondent, conformed precisely to its July 1986 item-by-item
proposal except the wage rates implemented were slightly
higher than those in that proposal.
Finally, Respondent contends that the Union’s own bad-
faith bargaining over the course of these negotiations pre-
cludes testing its own good faith. In this connection, Re-
spondent asserts that Lyons, on behalf of the Union, failed
to provide, or procrastinated in providing, Respondent with
written proposals as previously promised by him on numer-
ous occasions, canceled or failed to attend scheduled bar-
gaining sessions, and altered his position on critical issues
when it appeared that agreement was imminent. This conduct
was motivated, the Respondent claims, to avoid an agree-
ment with Respondent which would undermine another
agreement between the Union and a multiemployer group
which contained a ‘‘most favored nations’’ clause.
D. The Issues
The issues framed by the pleadings, facts and arguments
are as follows
1. Whether the Respondent made an unlawful unilateral
change by requiring employees to provide proof of work eli-
gibility at the start of the 1987 season.
2. Whether Barsamian made a firm contract offer or mere-
ly proposed an ‘‘idea’’ on June 20.
3. If Barsamian made a firm contract offer , was it timely
withdrawn before acceptance by the Union?
4. Were any unconditional offers to return to work made
by, or for, the Parker strikers?
5. If Respondent’s conduct beginning on June 20 is unlaw-
ful, is it excused by the Union’s prior bad-faith conduct?
6. Whether Respondent unlawfully conditioned reinstate-
ment of the Parker strikers upon the renunciation of their
union membership.
7. Whether Respondent unlawfully implemented new eco-
nomic terms at the outset of the 1987 season at Firebaugh.
E. Further Findings and Conclusions
1. The work eligibility verification issue
Complaint paragraphs 11(a) and (b) pertain to the Re-
spondent’s demand for proof of work eligibility. I conclude
these allegations lack merit as I am satisfied that Patricio’s
letter when understood in the context of IRCA does not state
that the work eligibility requirements are unrelated to IRCA.
IRCA became effective November 6, 1986, following
well-publicized congressional deliberations. IRCA title I (8
U.S.C. § 1324a and § 1324b) and title II (8 U.S.C. § 1255a)
represent a significant change in American immigration law.
Title I prohibits employers from employing aliens after
November 6, 1986, who are not authorized to work in the
United States, establishes an elaborate work eligibility
verification scheme, and prohibits discrimination in the hire
and tenure of employees on the basis of national origin.
Under the IRCA’s work eligibility verification scheme,
each newly hired employee must attest under penalty of per-
jury that he/she is a U.S. citizen or national, or, if an alien,
that he/she is legally authorized to work in the United States.
In addition, the employer is required to attest under penalty
of perjury that a responsible agent has inspected the docu-
ments offered by new workers to establish his/her U.S. citi-
zenship or nationality, or alien work authorization, and that
the documents appeared genuine. 8 U.S.C. § 1324a(b).
The statute categorizes and lists some forms of acceptable
identification in the following manner: (1) those establishing
both employment authorization and identity; (2) those estab-
lishing employment authorization; and (3) those establishing
individual indentity. If an employment applicant provides one
document from the first category, that is enough. Otherwise,
the new employee must produce one document from each of
the two other categories.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 See, e.g., ‘‘Handbook for Employers’’ containing instructions for com-
pleting Form I-9, the employment eligibility verification form at page 8. This
publication was prepared and widely distributed by the Immigration and Natu-
ralization Service as a part of the Service’s program to implement the edu-
cational program mandated by the statute.
Implementation of the new work eligibility verification
system was divided into three stages. The first stage which
lasted until June 1, 1987, was designed to educate employers
and emloyees about the requirements of the new law.
The second stage permitted agents of the Immigration and
Naturalization Service to conduct compliance investigations
and issue warning citations for violations. This stage lasted
until June 1, 1988.
The third stage—now permanent—subjects employers hir-
ing aliens without proper U.S. work authorization after No-
vember 6, 1986, to civil penalties ranging from $250 to
$2000 per employee for the first offense. Subsequent viola-
tions carry higher civil penalties. District courts are author-
ized to enjoin a pattern or practice of hiring aliens not au-
thorized to work and such violators are subject to criminal
prosecution. Employers who fail to obtain proper verification
and attestations are subject to civil penalties ranging from
$100 to $1000 per employee. 8 U.S.C. § 1324a(e).
The statute exempts employees hired before the date of en-
actment from the employment verification requirements. Em-
ployees hired before that date who are subsequently absent
for approved leaves of absence, strikes or temporary layoffs
also need not complete the verification requirement.22 How-
ever, under regulations adopted to implement the so-called
preenactment exemption, employees are deemed to have lost
their preenactment status if they quit, are terminated by their
employer (which includes situations ‘‘in which an employee
is subject to seasonal employment . . . .’’), or are excluded,
deported or depart the country under an order of voluntary
departure. 8 CFR § 274a.(b).
Title II established a so-called amnesty program to legalize
the U.S. residency of aliens who entered the country illegally
but who had since resided here for 5 consecutive years or
longer. The program established under Title II set a specified
period of time for such individuals to make application for
legalization of their residency. Wide publicity was given to
this program potentially applicable to millions of individuals.
Against the foregoing statutory backdrop, I have concluded
that Patricio’s June 1987 letter, fairly read, simply says that
the work eligibility verification requirement, which he de-
tailed, is in no way related to the Title II program for legal-
izing the residency of illegal aliens. The disputed paragraph
in the letter cannot be read to mean that the work eligibility
requirements are unrelated to the entirety of IRCA simply
because the amnesty clarification is parenthetically enclosed.
Having concluded that Patricio’s letter does not state flatly
that the new proof of work eligibility is unrelated to IRCA,
I further find that Respondent did not violate the NLRA by
unilaterally requiring that proof or by the temporary with-
holding of paychecks on June 18 as claimed by the General
Counsel.
Although Respondent may not have been subject to a civil
penalty in June 1987, IRCA nevertheless imposed a non-ne-
gotiable duty upon Respondent to verify the work eligibility
status of its employees. Whether Respondent’s seniority em-
ployees were exempt is, at best, very doubtful as their em-
ployment is clearly seasonal. For this reason, I am satisfied
that Respondent reasonably construed IRCA as being appli-
cable to its situation.
Although I agree with the General Counsel’s contention
that the pay withholding action seriously affected employees,
the evidence is insufficient to establish that Respondent acted
unlawfully. This is especially true where, as here, the evi-
dence shows that the clumsy compliance effort was not uni-
formly enforced and was quickly corrected without further
incident when Barsamian was made aware of the situation on
June 18.
For these reasons, the recommended Order provides for
the dismissal of these allegations.
2. The June 20 agreement issue
The preponderance of the credible evidence warrants find-
ing that a binding agreement was concluded on June 20. This
resolution is compatible with the usual rules of contract for-
mation even though it is recognized that those rules do not
confine the collective-bargaining process. Presto Casting Co.
v. NLRB, 708 F.2d 495, 497–498 (9th Cir. 1983).
The credibility resolutions concerning this issue are not
without difficulty. Both Barsamian and Lyons were disturb-
ingly argumentative while testifying, a fact that did not in-
spire immediate confidence in either witness. However, for
reasons stated below, I find Lyons’ account to be the more
reliable of the principal witnesses on this issue.
Barsamian insistence that he presented only an amorphous
idea when he returned to the Kofa Cafe is inexplicably in-
consistent with a variety of independent events which fol-
lowed shortly thereafter. Lyons’ action in seeking prompt
employee ratification strongly suggests that a firm proposal
had been made by Barsamian; it is highly improbable that
Lyons would have taken this step absent a belief that a firm
understanding existed.
Other witness who did inspire substantial confidence while
testifying lend support to the scenario depicted by Lyons.
Gradillez’ account of his exchange with Barsamian following
the ratification vote is particularly important. Barsamian’s re-
mark to Gradillez states outright that an agreement awaited
Lyons’ signature. Barsamian’s remark to Gradillez is tanta-
mount to an admission on the critical point related to this
issue and Barsamian provide no clear denial.
Extrinsic evidence of Barsamian’s public demeanor up to
that point, while not conclusive, is consistent with my con-
clusion. In short, Barsamian acted like an agreement had
been reached. This evidence includes his acknowledged in-
sistence that Lyons delay returning to his office; the hand-
shake at the conclusion of the meeting; and the ‘‘o.k.’’ signal
in the direction of Wern and Hall upon returning to the plant.
These incidental events are all compatible with Barsamian’s
remark to Gardillez and Lyons’ assertion that an accord was
reached. Even the photograph deicting the sorters’ steward
flashing a thumbs-up signal is some slight indication of a
positive event.
Respondent calls attention to the fact that Thornton did not
fully corroborate Lyons on the details of the agreement
reached. Although true to a certain extent, Thorton agreed
with Lyons on the important point that a proposal was made
which Lyons accepted on the Union’s behalf. Having ob-
served Thornton testify, I do not place significant weight in
his inability to recount the details of the agreement as well
as Lyons. Thorton did not impress me as a perceptive indi-
985TRI-PRODUCE CO.
23 Typically, the Board views ratification by a negotiator’s principal as a
limitation on the negotiator’s authority to conclude a final agreement rather
than a condition. See, e.g., Joe Carroll Orchestras, 254 NLRB 1158 (1981);
University of Bridgeport, 229 NLRB 1074 (1977); and Sunderland’s Inc., 194
NLRB 118 (1971). In contrast, scholars view conditions, whether precedent or
subsequent, as facts or events related to a party’s right to bring a cause of
action on a contract formed by rules of offer and acceptance. See Corbin on
Contracts, One vol. ed., West Publishing Co., St. Paul, MN, 1952, Chapter
30; Basic Contract Law, 4th Ed., Fuller & Eisenberg, West Publishing Co.,
St. Paul, MN, 1981, pp. 959–962.
24 See, e.g., C & W Lektra Bat Co., 209 NLRB 1038 (1974); M & M Olds-
mobile, 156 NLRB 903 (1966).
vidual on matters of this sort. Indeed, even Respondent com-
plained bitterly about Thornton’s distortion of its proposal
when he conducted the June 1986 ratification vote.
Barsamian’s own account of his parking lot exchange with
Lyons on June 20 implicitly acknowledges that only Telles
was not in accord with the understanding reached that day.
Viewing that exchange, the question is really reduced to
whether or not Telles had previously approved the proposal
made by Barsamian. On this point, I find Respondent’s evi-
dence seriously confused.
In his testimony, Barsamian takes credit as the originator
of the ‘‘idea’’ which led to the agreement. By contrast, his
prehearing affidavit attributes at least the broad outlines of
that ‘‘idea’’ to Telles which places the matter in a far dif-
ferent posture in deciding whether or not Barsamian had
prior authorization. The conclusion which I have reached that
Barsamian made a previously authorized proposal when he
returned to the Kofa Cafe is consistent with Lyons’ ratifica-
tion action and the other evidence implying that he returned
to the company office only to prepare a memorandum of
agreement.
Telles’ testimony concerning the content of the telephone
calls between Barsamian and himself was vague and incon-
sistent. Thus, his account of the second phone call that day
gives little indication of any significant discussion about
Barsamian’s ‘‘idea.’’ Yet, in agreement with Barsamian’s
testimony, he sent his negotiator back to the table for further
discussions. Telles’ account of the third telephone conversa-
tion with Barsamian suggests that he had previously rejected
either Barsamian’s ‘‘idea’’ or any type of accord with the
Union. I find it impossible to reconcile this serious inconsist-
ency.
Having credited Lyons’ account of the June 20 events, I
find that Barsamian presented an offer previously authorized
by Telles which Lyons accepted subject to membership rati-
fication.
Respondent’s further contentions merit comment. Its claim
that a condition precedent, i.e., Telles’ subsequent approval,
was not met lacks merit. Although Telles informed the Union
at the first bargaining session that both Barsamian and
Patricio actions required his approval, the subsequent bar-
gaining process establishes that Barsamian did not make pro-
posals without being authorized to do so by Telles. For ex-
ample, the bargaining on June l8 was terminated precisely
because Barsamian could not reach Telles to determine if he
desired to modify the Company’s existing proposal.23
Having concluded that Barsamian returned to the Kofa
Cafe on June 20 with a package proposal rather than an
‘‘idea’’ or an ‘‘off-the-record’’ offer, I find that under the
guidelines established by the parties, the offer had previously
been cleared by Telles. As Lyons accepted the proposal ten-
dered rather than making a counteroffer, further approval by
Telles was unnecessary. Hence, the condition precedent argu-
ment is inconsistent with the evidence concerning the nego-
tiation ground rules and the practices followed in the prior
bargaining sessions. By contrast, had Barsamian accepted an
offer propounded by Lyons, those ground rules would have
required Telles’ subsequent approval.
I reject Respondent’s contention that the offer was with-
drawn before acceptance was communicated. Although true
that Barsamian announced to Lyons in the parking lot that
the proposal had been taken ‘‘off the table’’ before Lyons
mentioned that it had already been ratified, I am satisfied
Barsamian was aware that ratification had already taken
place.
Assuming that favorable membership action was necessary
to remove the sole limitation on Lyons’ authority to accept
Respondent’s proposal, there is no evidence of an under-
standing concerning the method of communicating the fact of
ratification. Where, as here, the ratification vote was con-
ducted immediately outside the plant entrance gate in clear
view from the company office and was attended with much
commotion, it is reasonable to infer that these circumstances
alone provided the necessary message about the outcome of
the ratification vote. If not, this evidence coupled with
Barsamian’s reaponse to Gradillez’ inquiry about returning to
work shows convincingly that Barsamian already knew the
outcome of the ratification vote. These events occurred be-
fore Barsamian told Lyons that the proposal had been re-
moved from the table.
The Loggins Meat case on which Respondent relies in
fashioning its timely withdrawal argument is inapposite to
the circumstances found here. There, the union’s negotiator
did not directly accept the offer made. Instead, he merely
told the company negotiator that he would submit the pro-
posal to the membership for acceptance. In these cir-
cumstances, ratification became the equivalent of acceptance
and could not be dispensed with or modified by the union
agent as has occurred in other cases.24 Because the offer was
later withdrawn before any notice of membership acceptance
was communicated, the Board held that no contract was
formed. In effect, this decision applies elementary contract
law of offer and acceptance.
In contrast to Loggins, Lyons specifically accepted the
Company’s proposal on June 20 leaving only ratification as
the final hurdle. As found above, the fact of ratification
thereafter became apparent to Barsamian before notice of
withdrawal was communicated to the Lyons. It is my conclu-
sion that when Barsamian acquired this information by what-
ever means, the final step had been taken to the formation
of a binding agreement and Respondent was no longer at lib-
erty to withdraw its Kofa Cafe proposal.
Respondent’s contention that there was no meeting of
minds sufficient to form an agreement also lacks merit. As
noted earlier, even Barsamian’s testimony refutes this conten-
tion. The statements he made to Lyons in the parking lot fol-
lowing the ratification vote are unrelated to a lack of agree-
ment. Instead, his statements implicitly recognize that there
was an understanding between Lyons and himself; only
Telles’ belated withdrawal of the proposal earlier made in the
Kofa Cafe prevented implementation of the agreement. The
claim now made that there was no meeting of minds on the
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Apart from Telles’ testimony about the damage caused by the strike, fore-
man Forstedt’s rebellion against management’s plan for recalling strikers from
the preferential list is further indication that inexperienced employees, whether
strikers or replacements, made operations difficult. 26 Continental Nut Co., 195 NLRB 841 (1972).
substantive content of the agreement is inconsistent with the
clear indication given by Barsamian that Telles did not ap-
prove the agreement concluded earlier with Lyons.
Respondent’s claim that the June 20 agreement is defec-
tive for want of agreement on material terms such as a term
of the Parker cantaloupe contract, the scope of the second-
and third-year reopeners, and the health and pension plans in
the honeydew contract is unsupported by the evidence.
In accord with Lyons’ testimony, I find that the Respond-
ent agreed to ‘‘me to’’ the honeydew contract in its entirety
save for the modifications mandated by the pension trust and
the workweek provision which the parties long previously
agreed to delete. Hence, with respect to the honeydew agree-
ment, both the term and the fringe benefit plans are dictated
by the terms found in the multiemployer agreement itself.
Respondent cites the extended dispute in the negotiations
over the health and pension plans as evidence of the improb-
ability that the June 20 agreement included the health and
pension plans in the multiemployer honeydew agreement. Al-
though true that this departure represented a significant con-
cession, Lyons almost immediate acceptance suggests with
equal force that such a concession was made. By doing so,
the Parker cantaloupe and honeydew agreements retained
their historical feature of similar fringe benefits.
Lyons claim that the June 20 proposal accepting the multi-
employer health and pension plans is not the only evidence
that such a move was under consideration. Lyons also as-
serted without contradiction that Barsamian had remarked to
workers’ committee member Loren Hoover on April 22 that
Respondent would consider a complete ‘‘me too’’ of the
honeydew agreement. Moreover, in his prehearing statement,
Barsamian claimed that Telles initiated the June 20 proposal
which included ‘‘giv[ing] them the honeydew agreement.’’
Because the strike had a serious and immediate economic
impact,25 reliance on past proposals as a gauge for proposals
likely made on June 20 is not entirely reliable.
The agreement for a ‘‘freeze’’ at Parker with wage reopen-
ers in each of the following 2 years similarly implies that the
Parker cantaloupe agreement was to remain in place for a 3-
year term. As the June 20 agreement alludes to no further
specific dates for the contract term, it is reasonable to infer
that the term ‘‘freeze’’ as used by the parties here includes
both the dates specified in the last agreement adjusted for the
calendar years encompassed by the 3-year term implied by
the reopener understanding and the noneconomic language of
the prior cantaloupe agreement.
No one disputes the fact that negotiations for a Firebaugh
agreement were to continue. Hence, the Parker agreements
were not applicable to Firebaugh. No claim is made that a
material term is lacking from this portion of the under-
standing.
The final aspect of the June 20 agreement relates to the
return of the striking employees. Essentially, this portion of
the parties’ understanding provided only that replacement
workers would be laid off and the striking employees would
be returned to work as needed. Here too, no material term
is lacking. In agreement with the General Counsel, I find the
fact that the parties discussed this issue at all is further evi-
dence that agreement had been reached on other matters.
The principal remaining claim is whether the Respondent’s
failure to bargain in good faith in this circumstance is ex-
cused by any prior bad-faith bargaining on the part of the
Union. In the main, Respondent relies on the Continental Nut
case26 which held, inter alia, that the course of conduct by
a union negotiator was so lacking in good faith that it ‘‘re-
moved the possibility of negotiation and precluded the exist-
ence of a situation in which Respondent’s good faith could
be tested.’’ Here, Respondent asserts that the totality of the
Union’s conduct in general and Lyons’ conduct in particular
evidences a lack of good faith.
In support of its claim of bad-faith conduct by the Union,
Respondent cites occasions in the long negotiations when
Lyons failed to provide, or procrastinated in providing, writ-
ten proposals as previously promised; canceled or failed to
attend scheduled meetings; and repudiated tentative agree-
ments previously reached. In particular, Respondent claims
that following the understanding between the workers’ com-
mittee and Telles on June 11 over the work week issue,
Lyons began making increased demands which precluded
completion of an agreement that day.
Having carefully studied the record, I am satisfied that the
consistent claim that only the workweek issue remained at
the conclusion of the April 22 session is erroneous. More-
over, there is scant evidence in the record that the negotia-
tions were impeded by any canceled bargaining sessions and
ample evidence that when Lyons was not present personally
for negotiations, Union Agent Thornton was. Likewise, the
negotiations do not appear to have been seriously hampered
by the lack of written proposals.
But entirely aside from the blame Respondent attempts to
attribute to Lyons, this case differs markedly from the situa-
tion in Continental Nut. In that case, the General Counsel
claimed that the employer had engaged in surface bargaining.
The the pertinent part of that decision was that the union’s
bad-faith conduct made it impossible to determine the true
nature of the employer’s conduct.
By contrast, the issue here is focused solely on to whether
Respondent unlawfully repudiated an agreement reached on
June 20. Even if it is assumed for purposes of argument that
the Union’s prior conduct was short of the good-faith mark,
when the parties came to an agreement on June 20, the
Union’s prior conduct—and for that matter the Respondent’s
prior conduct—ceases to have relevance insofar as the statu-
tory requirement to reduce their agreement to writing and
execute it is concerned. At that point, the relevant inquiry
shifts to the actions taken by the parties to implement the
agreement concluded. Unlike the situation in Continental
Nut, the parties’ good faith toward the execution and imple-
mentation of their agreement is subject to measure without
regard to what occurred before unless the agreement itself
was induced by fraud or unlawful coercion. No fraud or un-
lawful coercion is claimed by Respondent.
For the foregoing reasons, I find that Respondent’s affirm-
ative defense to the allegation that it unlawfully refused to
execute and implement the June 20 agreement because the
Union engaged in prior bad-faith bargaining lacks merit.
987TRI-PRODUCE CO.
By repudiating the June 20 agreement, I find that Re-
spondent breached its duty to bargain in good faith. It is well
settled that parties are obliged to execute written contracts in-
corporating any agreement reached and to adhere to the
terms of such agreements. H. J. Heinz Co. v. NLRB, 311
U.S. 514 (1941). Where, as here, an employer repudiates and
refuses to adhere to the terms of an agreement, the Board is
empowered to enter an order requiring the execution of an
agreement and the reimbursement of employees for the
losses suffered as a consequence of the failure to adhere to
the terms of an agreement. NLRB v. Strong Roofing, 393
U.S. 357 (1967).
3. The remaining issues
As the binding June 20 agreement included, in effect, a
strike settlement requiring Respondent to lay off replacement
workers and reinstate the striking Parker employees, I find
that Respondent’s total repudiation of the agreement, includ-
ing its strike settlement aspect, also violated the Act. Accord-
ingly, I find it unnecessary to decide whether any inde-
pendent, unconditional offer to return to work was made by,
or on behalf of, the striking employees.
In addition, having concluded that Respondent repudiated
the binding agreement of June 20, I further find that no bona
fide impasse had been reached in the negotiations for a sepa-
rate Firebaugh agreement when Respondent implemented the
unilateral changes in wages and fringe benefits at the outset
of the outset of the 1987 Firebaugh season. NLRB v. Katz,
369 U.S. 736 (1961); Stone Boat Yard v. NLRB, 715 F.2d
441, 444 (9th Cir. 1983).
Within 4 days following the June 20 agreement, Respond-
ent had withdrawn all pending proposals and announced that
it intended to implement the changes at Firebaugh on a uni-
lateral basis. When this action is viewed in connection with
the repudiation of the remainder of the June 20 agreement,
Respondent’s claim that an impasse existed at Firebaugh is
plainly unsupportable. Under that agreement, Respondent had
obliged itself to continue the negotiations for a separate
Firebaugh agreement using as a point the departure the state
of negotiations which existed prior to June 20. Its conduct
subsequent to June 20 involving Firebaugh reflects the total
repudiation of the binding agreement reached on June 20.
Finally, General Counsel alleges that Respondent violated
Section 8(a)(1) and (3) of the Act on the basis of Larry
Hall’s testimony that he was asked to sign a form denounc-
ing the Union when he telephoned the Parker office on June
21 seeking reinstatement. Attorney Kimbrough who fielded
most of those calls for the Respondent emphatically denied
making any such statement to any of the strikers who called
on that date but had no specific recollection of speaking with
Hall. Although several other strikers called for the same pur-
pose on that date and reported speaking with Kimbrough,
none testified to any similar statement during the course of
their calls.
In these circumstances, I credit the denial of Kimbrough
and find that Respondent did not insist that employees de-
nounce the Union as a condition of returning to work. Ac-
cordingly, the recommended order provides for the dismissal
of this allegation.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By repudiating the agreement reached with the Union
on June 20, 1987, and refusing to execute a memorandum
containing the terms of that agreement, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
4. By unilaterally altering the wages and fringe benefits
applicable to its Firebaugh, California, employees com-
mencing with the start of the 1987 season, Respondent en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
5. Respondent did not engage in any further unfair labor
practices alleged in the complaint of the General Counsel in
this matter.
6. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
As Respondent repudiated, and refused to reduce to writ-
ing and execute the agreement reached with the Union on
June 20, 1987, the recommended Order provides that Re-
spondent must, upon request by the Union, execute a written
instrument memorializing the June 20 agreement and prompt-
ly implement that agreement. The recommended Order fur-
ther provides that Respondent bargain in good faith with the
Union and reduce to writing, execute and implement any fur-
ther collective-bargaining agreement reached with the Union
concerning its employees at Firebaugh, California.
The recommended Order also requires Respondent to rein-
state the striking employees at Parker, Arizona, in accord
with the June 20, 1987 agreement. Employees at both Parker,
Arizona, and Firebaugh, California, are to be made whole for
all losses incurred by them as a consequence of its repudi-
ation of the June 20, 1987, agreement reached with the
Union and its subsequent unilateral change in the wages and
fringe benefits at Firebaugh, California. Backpay, if any,
shall be computed as though striking employees at Parker,
Arizona, had been reinstated to their former positions in ac-
cord with the June 20, 1987, agreement, and as though its
Firebaugh, California, employees had been paid in accord
with the terms and conditions of employment in effect prior
to Respondent’s unlawful unilateral changes at Firebaugh.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
28 If this Order is enforced by a Judgment of the United States Court of
Appeals, the words in the notice reading ‘‘Posted By Order Of the National
Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Re-
lations Board.’’
Backpay, if any, is to be computed in accord with the for-
mulae established in Ogle Protection Service, 189 NLRB
682, 683 (1970), and F. W. Woolworth Co., 90 NLRB 289
(1950). The appropriate method of determining interest on
any backpay due is specified in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Contributions due to the
trust fund account of any employee shall be determined in
accord with Merryweather Optical Co., 240 NLRB 1213
(1979).
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Tri-Produce Company, Firebaugh, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Fresh Fruit and Vegetable
Workers, Local 78-B, United Food and Commercial Workers
International Union, AFL–CIO–CLC (Union) as the exclu-
sive representative of Respondent’s employees in the fol-
lowing separate units appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
(1) All full-time and regular part-time packinghouse
employees at Firebaugh, California, engaged in packing
and handling lettuce, chicory or endive, carrots, topped
carrots, celery, broccoli, cabbage, melons, prepacked
celery or carrots and/or cauliflower; excluding office
clerical employees, guards, and supervisors as defined
in the Act.
(2) All full-time and regular part-time packinghouse
employees at Parker, Arizona, engaged in packing and
handling lettuce, chicory or endive, carrots, topped car-
rots, celery, broccoli, cabbage, melons, prepacked cel-
ery or carrots and/or cauliflower; excluding office cler-
ical employees, guards, and supervisors as defined in
the Act.
(b) Refusing to execute a written memorandum containing
the terms of the June 20, 1987 agreement concluded with the
Union and promptly implementing those terms, including the
reinstatement of its striking Parker, Arizona, employees to
their former positions.
(c) Unilaterally changing the wages, hours, and other
terms and conditions of employment of unit employees rep-
resented by the Union without the Union’s agreement or an
impasse in negotiations with the Union concerning such
changes.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the unit employees at its Firebaugh, Cali-
fornia, and Parker, Arizona, packinghouses concerning
wages, hours, and other terms of employment.
(b) On request, execute a written memorandum containing
the agreement reached with the Union on June 20, 1987, and
promptly implement the terms of that agreement including
the reinstatement of striking employees at its Parker, Ari-
zona, packinghouse to their former positions or substantially
equivalent positions if their former positions no longer exist.
(c) Restore and maintain the expired agreement with the
Union insofar it applied to the employees of the Firebaugh
unit prior to the start of the 1987 Firebaugh packing season
until a new Firebaugh agreement is negotiated with the
Union or a lawful impasse is reached in negotiations for a
new Firebaugh agreement.
(d) Make whole employees and their fringe benefit trust
fund accounts for all losses resulting from (1) its failure to
timely reinstate striking Parker unit employees pursuant to
the June 20, 1987, agreement with the Union and (2) its uni-
lateral change in the pay rates and fringe benefits at the start
of the 1987 Firebaugh packing season, together with interest,
as provided in the remedy section of the administrative law
judge’s decision in this matter.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
backpay and trust fund reimbursements due under the terms
of this Order.
(f) Post at its packinghouse facilities in Firebaugh, Cali-
fornia, and Parker, Arizona, copies of the attached notice
marked ‘‘Appendix.’’28 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an administrative law judge, the
National Labor Relations Board has found that we violated
the National Labor Relations Act. To inform you of the out-
989TRI-PRODUCE CO.
come of that matter, the Board has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to bargain in good faith with Fresh
Fruit and Vegetable Workers, Local 79-B, United Food and
Commercial Workers International Union, AFL–CIO–CLC
(Local 79-B) as the exclusive bargaining representative of
our employees in the following separate appropriate units:
(1) All full-time and regular part-time Firebaugh, Cali-
fornia packinghouse employees engaged in the packing
and handling of lettuce, chicory or endive, carrots,
topped carrots, celery, broccoli, cabbage, melons,
prepacked celery or carrots and/or cauliflower; exclud-
ing office clerical employees, guards, and supervisors
as defined in the Act.
(2) All full-time and regular part-time Parker, Arizona
packinghouse employees engaged in the packing and
handling of lettuce, chicory or endive, carrots, topped
carrots, celery, broccoli, cabbage, melons, prepacked
celery or carrots and/or cauliflower; excluding office
clerical employees, guards, and supervisors as defined
in the Act.
WE WILL NOT refuse to execute a written memorandum
containing the terms of the agreement reached with Local 79-
B on June 20, 1987, and immediately implement those terms.
WE WILL NOT change the terms and conditions of employ-
ment established in any agreement reached with Local 79-B
until a successor agreement is negotiated or a valid impasse
in bargaining for a new agreement is reached.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL promptly execute a written memorandum con-
taining the terms of the agreement concluded with Local 79-
B on June 20, 1987, and abide by those terms, including the
reinstatement of the striking Parker employees.
WE WILL, on request, bargain with Local 79-B concerning
the terms of a new agreement applicable to the Firebaugh
employees.
WE WILL, on request by Local 79-B, restore and maintain
the terms and conditions of employment contained in our ex-
pired agreement with Local 79-B insofar as it was applicable
to the Firebaugh employees, including wage rates and fringe
benefits, until a new agreement is negotiated or a valid im-
passe in bargaining is reached.
WE WILL make employees of both units and their fringe
benefit trust fund accounts whole for the losses incurred as
a result of our failure to timely reinstate the striking Parker
employees pursuant to the June 20, 1987, agreement with
Local 79-B and our failure, beginning with the 1987 season,
to pay our Firebaugh employees the wage rates and fringe
benefits contained in our expired agreement with Local 79-
B, together with interest required by law.
TRI-PRODUCE COMPANY