Maywood Do-nut Co., Inc.

MAYWOOD DO-NUT CO., INC. 529 Maywood Do-Nut Co., Inc. and Local 37, Bakery, Confectionery and Tobacco Workers' Interna- tional Union of America, AFL-CIO, CLC. Cases 21-CA-16683 and 21-CA-17064 March 17, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 5, 1979, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, counsel for the Gen- eral Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Maywood Do- Nut Co., Inc., Huntington Park, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Although Respondent and the Union had orally agreed upon many of the terms to be included in the proposed collective-bargaining agreement, we agree with the Administrative Law Judge's finding that at no time had all of the substantive terms of the proposed contract been agreed upon. Accordingly, we adopt his finding that Respondent did not unlaw- fully refuse to execute a completed agreement. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the oppor- tunity to present evidence, it has been decided that 248 NLRB No. 80 we violated the law in certain particulars and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT refuse to bargain collectively, in good faith, concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Local 37, Bakery, Confection- ery and Tobacco Workers' International Union of America, AFL-CIO, CLC, as the exclusive bargaining representative of our employees in the following appropriate unit: All production and maintenance employees, including shipping and receiving employees and truckdrivers employed by the Employer at our facility located at 6174 Maywood Avenue, Huntington Park, California; ex- cluding office clerical employees, profession- al employees, guards, and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, as amended. WE WILL, upon request, bargain collectively with Local 37, Bakery, Confectionery and To- bacco Workers' International Union of Amer- ica, AFL-CIO, CLC, as the representative of our employees in the above-described appro- priate unit, and, if an agreement is reached, we will execute a written contract incorporating the terms thereof. MAYWOOD Do-NuT Co., INC. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This matter came on for hearing before me in Los Angeles, California, on March 19 and 20, 1979. On November 22, 1978, the Regional Director for Region 21 of the Nation- al Labor Relations Board, herein called the Board, issued an order consolidating cases and an amended consolidat- ed complaint in Cases 21-CA-16683 and 21-CA-17064. The charge in Case 21-CA-16683 was filed by the Union on May 19, 1978, and the charge in Case 21-CA-17064 was filed by the Union on September 13, and alleges vio- lations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. Maywood Do-Nut Co., Inc., hereinafter called Respon- dent or the Company, denied the commission of unfair labor practices but admitted jurisdictional facts. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Based upon the entire record, and upon the briefs filed on behalf of the parties, MAYWOOD DO-NUT CO., INC. 529 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and upon my observation of the demeanor of the wit- nesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a California corporation, has been en- gaged in the manufacturing and wholesaling of bakery products and operates a facility located at 6174 Maywood Avenue, Huntington Park, California. Respon- dent annually purchases and receives goods and products valued in excess of $50,000 directly from suppliers locat- ed outside the State of California. Therefore, I find, as admitted in the answer, that at all times material Respon- dent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Il. THE ALLEGED UNFAIR LABOR PRACTICES. A.Background All production and maintenance employees, including shipping and receiving employees and truckdrivers em- ployed by Respondent at its facility in Huntington Park, California; excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On July 26, 1977, a majority of the employees of Re- spondent in the above-described unit, by a secret-ballot election conducted under the supervision of the Regional Director for Region 21 of the National Labor Relations Board, designated and selected the Union as their repre- sentative for the purposes of collective bargaining with Respondent, and on September 27, 1977, the Regional Director for Region 21 certified the Union as the exclu- sive collective-bargaining representative, by virtue of Section 9(a) of the Act, of all the employees of Respon- dent in said unit. Since on or about December 1, 1977, and at all times thereafter, the Union has requested, and continues to re- quest, that Respondent bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The complaint alleges that Respondent engaged in dilatory and surface bargaining by, among other things, failing to meet with the Union at reasonable times and places, refusing to present counterproposals, and utilizing negotiators who had no authority to make any conces- sions. It is further alleged in the complaint that on or about September 5, 1978, Respondent and the Union reached final agreement on the terms of the collective- bargaining agreement covering the rates of pay, wages, hours of employment, and other terms and conditions of employment in the unit described supra. According to the complaint, Respondent refused to execute the collec- tive-bargaining agreement reached by the parties. Re- spondent denies the commission of any unfair labor pra- tices as alleged in the consolidated complaint. B. Issues 1. Does the Union represent a majority of the employ- ees in the unit alleged in the complaint? 2. Whether Respondent violated Section 8(a)(l) and (5) of the Act by engaging in dilatory and surface bar- gaining? 3. Whether Respondent violated Section 8(a)(1) and (5) of the Act by refusing to execute an agreed-upon col- lective-bargaining agreement? 4. Whether surreptitiously obtained tapes of a bargain- ing session should be admitted into evidence? Admissibility of Certain Tapes Offered by Respondent In a recent case, Carpenter Sprinkler Corporation, 238 NLRB No. 139 (1978), the Board held: We are convinced that a rule permitting the intro- duction into evidence of tape recordings of negotia- tions prepared surreptitiously would inhibit severely the willingness of parties to express themselves freely and would seriously impair the smooth func- tioning of the collective-bargaining process. Ac- cordingly, we hold that recordings of conversations which are part of negotiations and which are made without notice to a party to the conversations should be excluded from evidence in Board pro- ceedings. The surreptitiously recorded tapes offered in evidence in the instant case were concerned with collective bar- gaining and thus fall squarely within the rule established by the Board in the Carpenter Sprinkler case. I excluded them from the evidence. Respondent cites in support of its argument urging ad- mission of the tapes the cases of Local 90, Operative Plas- terers and Cement Masons' International Association of the United States and Canada, AFL-CIO (Southern Illinois Builders Association), 236 NLRB 329 (1978); International Brotherhood of Boilermakers, Iron Ship Builders, Blacks- miths, Forgers & Helpers, Local Lodge No. 587, AFL-CIO (Stone & Webster Engineering Corporation), 233 NLRB 612 (1977); and Fontaine Truck Equipment Company, 193 NLRB 190 (1971). None of the tapes in these cases came up in a context of collective bargaining. The cases are therefore not apposite. The Collective-Bargaining Sessions On July 26, 1977, a majority of Respondent's produc- tion and maintenance employees designated the Union as their collective-bargaining representative in a Board-con- ducted election. On September 27, 1977, the Union was certified as such by the Regional Director for Region 21. On November 16, 1977, the Board denied Respondent's request for review of the Regional Director's Supple- mental Decision and Certification of Representative. MAYWOOD DO-NUT CO., INC. 531 In December 1977, the Union and Respondent began collective-bargaining negotiations. The first negotiation session occurred on December 15, 1977, at the office of Edward Gund. Gund, a labor management consultant, represented Respondent. Allen Bryan, the Union's presi- dent, and Pete Peters, a business agent of the Union, rep- resented the Union. An associate of Gund, Lou Flores, was also present. At this initial meeting, both parties re- quested information. The meeting lasted about half an hour. The second meeting was held at Gund's office on Jan- uary 19, 1978, with the same people present. Both parties supplied the requested information. Bryan presented Gund with a copy of the contract which the Union had with Martino's Bakery. Bryan informed Gund that the Union was offering the Martino contract merely as a basis for negotiations and that the Union was not asking Gund to sign that contract. Gund testified that he re- viewed the Martino contract and informed the Union that Respondent could not live with the contract because of its small size. According to Gund, the Union replied that they would come back with something that perhaps both parties could live with. Bryan acknowledged that he agreed to provide another written proposal on moneys. The third meeting was held at Gund's office on Janu- ary 25, 1978. Gund, Peters, and Bryan were present. The Union presented a cost package proposal. (Resp. Exh. 1.) Gund testified that he discussed the proposal with the Union and told them that he would take it back to Re- spondent's president, John Nicholas, for his approval. According to Gund, he discussed the proposal with Ni- cholas and Nicholas responded that he would be unable to stay in business with that type of an agreement. Gund testified that he informed the Union of Respondent's re- sponse at the next meeting. Bryan testified that this pro- posal was never discussed. According to Bryan, Gund stated that he would anticipate having a representative of Respondent present at the next meeting in order to start actual negotiations. Gund acknowledged that he may have said that. The fourth meeting was held at Gund's office on Feb- ruary 1, 1978, with the same people present. A represen- tative of Respondent was not present. Bryan testified that Gund told the Union that a representative was unable to attend but would probably attend the next meeting and serious negotiations could commence at that time. The fifth meeting was held at Gund's office on Febru- ary 8, 1978. Peters, Bryan, Gund, and Flores were pre- sent. Again, no representative of Respondent was pre- sent. Bryan told Gund that it seemed that Respondent had no intention of negotiating a contract and that they were giving him no choice but to take economic action. According to Bryan, the Martino contract was not dis- cussed and no proposals were offered by Gund. The sixth and last meeting with Gund was held at Gund's office on February 17, 1978, with the same people present. Once again, a representative of Respon- dent was not present. Bryan informed Gund that there was a membership meeting that afternoon and that Bryan was going to take a strike vote. That afternoon, a strike vote was taken. The strike began on February 20, 1978. The Union had no further contact with Gund. Bryan's testimony and that of Gund conflicted con- cerning what was discussed and agreed to at these meet- ings. Bryan testified that holidays, fringe benefits, and union security were never discussed. Bryan thought that Gund said he wanted a management-rights proposal but Gund never presented one to Bryan. Bryan also thought that he mentioned that the Union wanted a dues-check- off clause and that Gund felt that Respondent would probably go for that. Bryan testified that Gund never said that Respondent would like to keep its own health and welfare plan rather than using the Union's. While Bryan told Gund that the Union was offering the Mar- tino contract as only a basis for negotiations, Bryan testi- fied that he never told Gund what kind of reduction in wages or fringe benefits the Union was willing to consid- er. According to Bryan, Gund never told him that the wages in the Martino contract were too high. Indeed, Bryan testified that Gund never gave the Union any pro- posals and that wages were never discussed with Gund. Bryan did acknowledge, however, that he presented a cost package proposal at the January 25 meeting which was never discussed. Contrary to Bryan, Gund testified that fringe benefits, union security, and holidays were discussed. As far as pension and health and welfare are concerned, the Union stated, according to Gund, that perhaps it could wait 8 months to I year before putting those benefits into effect. Later, however, Gund was not so sure if the Union was willing to make this concession on health and welfare. According to Gund, the parties were not at all close on fringe benefits. Gund thought that the parties had discussed union shop and that Gund had agreed to it. Gund stated that he also made conces- sions on dues checkoff. Other than union security, Gund testified that no other concessions or agreements were made because "We were hung up on wages and that made it very difficult." However, Gund later acknowl- edged that he may have made some concessions on holi- days. He might have offered the Union one or two extra holidays. Gund testified that his client did not agree with these concessions and that Gund communicated this dis- agreement to the Union. In agreement with Bryan, Gund stated that management wanted a strong management- rights clause in the agreement. Gund stated that he just mentioned it and did not recall handing the Union any written proposal. Indeed, Gund testified that he did not make any written counterproposal. Gund testified that wage rates were discussed but he could not recall specifi- cally. He may have offered an increase of about 15 or 20 cents an hour. The Union received a copy of a letter sent by Nicho- las to Gund, informing Gund that he was no longer to act as Respondent's representative. Thereafter, on or about April 1, the Union was contacted by a mediator of the Federal Mediation and Conciliation Service. A meet- ing between the Union and Respondent was scheduled for April 3 at the offices of the FMCS. Bryan and Peters attended this meeting. However, no representative of Re- spondent was present. Subsequently, Bryan was informed by a retired busi- ness agent, who had been on the picket line at Respon- MAYWOOD DO-NUT CO., NC. 531 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's facility, that Nicholas had informed him that "a Mr. Sullivan" would be representing Respondent. Around the middle of April, Bryan telephoned Mike Sul- livan. Sullivan informed Bryan that he was Respondent's labor relations representative and that he was willing to sit down and negotiate with the Union. A meeting was scheduled for April 13, at the offices of the Union's at- torney. Peters and Bryan attended this meeting. Howev- er, no representative of Respondent was present. Instead, Sullivan's secretary called and rescheduled the meeting for April 20. Sullivan testified that he did not attend the meeting on April 13 because there had been an emergen- cy at one of his construction jobsites. The April 20 meet- ing was also scheduled at the offices of the Union's attor- ney. Once again, Sullivan did not appear. After waiting for Sullivan to appear, Bryan called Sullivan's office and was informed that evidently there had been a misunder- standing because Sullivan was in Simi Valley. Sullivan testified that he left word with his secretary that he would be unable to attend the rescheduled meeting be- cause of another emergency. Apparently, the secretary failed to call the Union. After this second failure to meet with the Union, the Union's attorney filed the unfair labor practice charge in Case 21-CA-16683 on May 19. After the first unfair labor practice charge was filed, Sullivan contacted the Union on or about June I and a meeting was scheduled for June 5. This meeting was held in Sullivan's office. Peters, Mel Walters, financial secretary-treasurer of the Union, Ginger Sullivan, Sulli- van's wife, and Tim Ryan, Sullivan's associate, were pre- sent. None of the participants testified as to what oc- curred at this meeting. A second meeting was held in Sullivan's office about I week later. Sullivan, Peters, Walters, and Bryan were present. Bryan presented Suli- van with a copy of the Martino contract and explained, as he had done with Gund, that this contract was only a proposal from which to work and that the Union was not asking Respondent to sign this agreement. According to Bryan, Sullivan stated that many of the cost items were very expensive, that the wage rates were far higher than what Respondent could pay, and that Sullivan would have to go over this contract proposal with Ni- cholas. Sullivan said that he would get back to the Union. Sullivan testified, however, that the grievance procedure and the union shop, not the wages, were of concern to him. According to Sullivan, the reinstatement of strikers was also discussed. Another meeting was not scheduled. After this initial meeting with Sullivan, the Union was contacted by Genise Reiter, who said that she had been retained by Respondent to represent it in negotiations with the Union and would like to schedule a meeting with the Union. The first meeting was scheduled for about June 20. Sullivan testified that his workload was such that he was unable to conduct the negotiations. Therefore, he called Lou Zigman and asked Zigman if he knew anyone who would be capable of negotiating for Respondent. According to Sullivan, Zigman said that either he or an attorney with whom he was acquainted could handle the negotiations for Respondent. Sullivan testified that he had one meeting with Reiter and Zigman in order to inform them where the negotiations stood at that point. Reiter canceled the first meeting scheduled for June 20. This meeting was rescheduled for June 26. The June 26 meeting was held at the Union's offices. Reiter, Wal- ters, Peters, and Bryan were present. Bryan testified that they briefly discussed the Martino contract and that Reiter said that she would be meeting with Respondent and would be ready to negotiate at the next meeting. Bryan and Walters both testified that Walters asked Reiter if she had the authority to negotiate a contract for Respondent. According to Bryan and Walters, Reiter stated that she had the authority to negotiate a contract and that she represented Respondent. Reiter testified that she told the Union that she was acting on behalf of Re- spondent as its representative and that she had no au- thority to bind Respondent. Reiter stated that Respon- dent would have "a final say-so in the matter on what happened." A second meeting was scheduled for about July 10. Prior to that date, however, the Union called Reiter and canceled the meeting. The meeting was scheduled for July 12. On July 12, Reiter, Walters, and Bryan met in the office of the Union. Walters did not remain through- out the entire negotiating session but walked in and out of the office. Bryan testified that the parties went through each section of the Martino contract except for those sections which pertained to economic items. Bryan testified that the Union and Reiter reached agreement on certain provisions in the Martino contract. According to Bryan, Reiter stated that she had been given authority by Respondent to accept these provisions. There were other provisions of the Martino contract which, Reiter told Bryan, Respondent would not accept. Some of these were dropped by the Union. Others, that the Union was unwilling to drop at that point in the negotiations, were held for further discussion. Another meeting was sched- uled for about July 21. On July 21, Walters, Bryan, and Reiter met at the Union's office. Again, Walters was not present during the entire negotiating session. Bryan testified that the parties discussed the remaining noneconomic items that were still on hold from the previous meeting. According to Bryan, Reiter stated that she had received permission and authority from Respondent to accept some of these items. Bryan agreed to drop other provisions. Bryan also stated that the parties talked about holidays and vaca- tions at either this meeting or the following one. Bryan and Reiter both testified that there was agreement that vacations would be I week after I year, 2 weeks after 2 years, and 3 weeks after 10 years. According to Reiter, she discussed this proposal with Respondent and Respon- dent gave its approval to her. Reiter could not recall, however, if she communicated that approval to the Union. Reiter testified that there was no agreement on the language of that provision. Bryan testified that the Union requested eight holidays, including Washington's Birthday and Veterans Day. According to Bryan, Reiter agreed to add one additional holiday to the six that Re- spondent was already giving. Bryan testified that the Union accepted this proposal for seven holidays. Reiter, relying on her notes, testified that Respondent had MAYWOOD DO-NUT CO,, INC. 533 agreed to give the Union only six holidays. Reiter be- lieved that she had conferred with Respondent before making this proposal to the Union. The next meeting was held on August 3 at the offices of the Union. Walters, Bryan, and Reiter were present. Once again, Walters was not present during the entire meeting. According to Bryan, the parties discussed lan- guage items and cost items. Bryan testified that either at this meeting or at the next meeting he agreed to drop his demands for the Union's own health and welfare pack- age and agreed to accept Respondent's existing health and welfare program. Bryan also agreed to drop the Union's demand for pension fund contributions during the term of the first contract. Bryan testified that at one of these meetings he had proposed a modification to the union-security clause for the first contract, permitting employees who were on the payroll at the time the con- tract was settled not to join the Union, but requiring all new hires to join. According to Bryan, Reiter had dis- cussed this proposal modification with Respondent and Respondent had rejected it. Bryan stated that he dropped the proposed modification. Reiter acknowledged that the proposed modification had been discussed. However, Reiter claimed that the issue was unresolved. Another meeting was scheduled for about August 10. According to Bryan, this meeting was not held. Bryan testified that Reiter called and asked to postpone the meeting for a few days because "she had not had a chance to talk with Mr. Nicholas to get some approval on any of the remaining things." The meeting was res- cheduled for August 12. Walters, Reiter, and Bryan met on August 12 in the offices of the Union. Once again, Walters was not pre- sent throughout the negotiating session. Bryan testified that there were basically only two items, union security and wages, left to be discussed. According to Bryan, all the other sections of the contract had either been agreed upon or had been dropped by the Union. Both Reiter and Bryan testified that Reiter proposed a 3-percent wage increase for the 2 years of the contract. Bryan and Reiter both testified that the Union rejected this offer and instead proposed an increase of $12 per week for the first year and $10 per week for the second year. Bryan testified that he told Reiter that the Union would be willing to drop union security altogether if Respondent would give a higher increase in wages. Reiter acknowl- edged that she agreed to talk to Respondent about the increase. Reiter denied that there had been a final agreement on any item. Reiter admitted, however, that she had agreed to the language on particular items in the Martino con- tract and that she may have told the Union, on a number of occasions, that she had discussed with Nicholas var- ious clauses and that he had agreed to certain of the terms. Bryan testified that Reiter repeatedly would say that she had to go back to get the approval of Respon- dent on particular items. Consequently, when Reiter agreed to a particular item, Bryan took for granted that Reiter had the approval of Respondent even though she did not specify that she had such authority. Reiter, con- sistent with Bryan's testimony, admitted that she con- ferred with Respondent after each negotiation session. Excluding wages, what agreements, if any, were reached between Bryan and Reiter? There are four sources of information. First, Bryan's affidavit, which was introduced as Respondent's Exhibit 2, specifies what agreements were reached. Second, Bryan went through the Martino contract and testified from memory as to what agreements were reached with Reiter. Bryan stated that if there were any differences between his testimony and the affidavit that the affidavit would be correct. Third, Respondent's Exhibit 4 is the copy of the Martino contract used by Reiter to negotiate. Reiter testified that the notations on that contract were her own and that they accurately reflected the negotiations that she con- ducted with the Union. Reiter stated that the clauses in her copy of the contract that were marked "O.K." were either agreed to in verbiage or in thought. She also said that some of the clauses that were crossed out in her copy of the contract had to be rewritten in a different way. Fourth, using her copy of the Martino contract to refresh her memory, Reiter testified as to what agree- ments were reached with Bryan. Bryan and Reiter agreed in part and disagreed in part as to what agreements were reached on the clauses of the Martino contract. With regard to each clause of the Martino contract, they agreed and disagreed as follows: Section I-Contract Definition: Bryan testified that the parties agreed to paragraph A and that paragraph B was dropped. The notations on Reiter's copy of the contract are consistent with this testimony. Section II-Union Security: Bryan testified that, during his last meeting with Reiter, he agreed to drop union se- curity and asked Reiter to go back to Respondent and try to get Respondent to agree to an increase in wages. Contrary to Bryan, Reiter testified that there was never an agreement on union security and that the Union never agreed to drop that proposal. On Reiter's copy of the contract, a hold is marked next to paragraph A while the rest of the paragraphs in section II are crossed out. Reiter testified that no agreement was reached on a dues- checkoff clause. When asked if he had ever agreed to drop a dues-checkoff clause, Bryan asserted that it had never been officially proposed because there was never a union-security clause. Section III-Seniority, Layoff Discharge: Bryan testified that paragraph A was agreed to, that paragraph B was rejected, and that paragraph C was agreed to. Reiter's contract is consistent with this testimony. Bryan testified that paragraph D was agreed to with the exception of the last two sentences. Reiter's contract indicates that paragraph D was agreed to in its entirety. Bryan's affida- vit states that the employer agreed to paragraph D. Reiter's contract and Bryan's affidavit indicate that para- graph E was dropped. However, Bryan testified that no agreement was reached on those portions requiring 3-day notice and 3-day pay. Reiter's notes indicate that para- graph F was agreed to in its entirety. Bryan testified ini- tially that paragraph F was agreed to. Later, however, Bryan corrected himself and stated that the parties may have amended paragraph F and changed 7 working days to 5. Bryan's affidavit indicates that 7 working days was changed to 5. Reiter testified and her notes reflect that no agreement was reached on paragraph G. Bryan testi- MAYWOOD DO-NUT CO.. INC. 533 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled that the parties agreed to change 12 months to 6. Bryan testified that the parties agreed to paragraph H. Reiter's notes are consistent with this testimony. Section IV-Workweek: Bryan testified and Reiter's contract indicates that the parties agreed to a 40-hour workweek and an 8-hour day. Bryan's affidavit states that the parties agreed to the language of paragraph B and an 8-hour day and a 40-hour workweek. Bryan testi- fied and his affidavit indicates that paragraph C was agreed upon. Bryan testified initially that paragraph D was not agreed to. Later, however, Bryan corrected himself and stated that paragraph D was kept in with 8 hours. Bryan's affidavit indicates that Respondent changed 7-1/2 hours to 8 hours and the Union agreed. Reiter's notes indicate that paragraph D was agreed upon. Bryan testified and Reiter's note indicate that para- graph E was agreed upon. Bryan testified initially that paragraph F was agreed to with the exception of the last sentence. Bryan's affidavit indicates that the employer agreed to paragraph F as written. Bryan later corrected himself and testified that his affidavit was correct rather than his earlier testimony. Reiter's notes indicate that paragraph F was agreed to with the exception of the last sentence. Bryan testified and Reiter's notes indicate that paragraph G was agreed to. Bryan testified that Respon- dent agreed to paragraph H based on 8 hours, except for the guarantee of 8-hour pay. Reiter's notes are consistent with this testimony. Bryan testified and Reiter's notes in- dicate that paragraphs I, J, K, L, and M were agreed upon. Section V-Jobbers: Bryan testified and Reiter's notes indicate that this section was dropped. Section VI-Manning Provisions: Bryan testified and Reiter's notes indicate that the parties agreed to para- graph A except for the last sentence. Bryan testified and Reiter's note indicate that the parties agreed to para- graph B, dropped paragraph C, agreed to paragraph D, dropped paragraph E, agreed to paragraph F, and dropped paragraph G. Bryan's affidavit states that para- graphs B and C were held for future discussion. His affi- davit does not reflect what agreement, if any, was reached on these two paragraphs. Section VII-Holidays: Bryan testified that the parties agreed to section VII except for Washington's Birthday and agreed to the language except that it should reflect a 40-hour week. According to Bryan's testimony, Respon- dent agreed to give one additional holiday to the six they were already giving. Reiter's notes indicate that Respon- dent agreed to give the Union only six holidays. Section VIII-Vacations: Reiter testified and her notes indicate that there would be I week's vacation after I year, 2 weeks after 2 years, and 3 weeks after 10 years, but no language was agreed upon. Bryan testified that paragraphs A and B, based on a 40-hour week and an 8-hour day, were agreed upon. Bryan testified that paragraph C was amended to pro- vide 3 weeks after 10 years rather than after 5 years. Bryan testified that paragraphs D and E were dropped, that paragraphs F and G were agreed upon, that para- graph H was dropped, and that paragraphs I, J, and K were agreed upon. Section IX-General Conditions: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section X-Health and Safety: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section XI-Maintenance of Benefits: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section XII-Female Workers: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section XIII-Night Premium Pay: Bryan testified and Reiter's notes indicate that this section was dropped. Section XIV-Dressing Time: Bryan testified and Reiter's notes indicate that this section was dropped. Section XV-Split Classification: Bryan testified and Reiter's notes indicate that paragraph A was agreed upon and that paragraph B was dropped. Section XVII-Uniforms: Bryan testified that this sec- tion was agreed upon. Reiter's notes indicate that this section was dropped. Section XVIII-Grievance Procedure: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section XIX-Serving Notices: Bryan testified and Reiter's notes indicate that this section was agreed upon. Section XX-Performance of Agreements: Bryan testified and Reiter's notes indicate that this section was agreed upon except for the last sentence. Section XXI-Union Investigation: Bryan testified that this section was agreed upon. Reiter's notes are ambigu- ous. Bryan's affidavit does not reflect whether agreement was reached on this section. Section XXII-Successors and Assigns: Bryan testified and Reiter's notes indicate that this section was dropped. Section XXIII-National Pension Plan: Bryan testified and Reiter's notes indicate that this section was dropped. Section XXIV-Benefit Fund: Bryan testified and Reiter's notes indicate that this section was dropped. Bryan testified and Reiter's notes indicate that Respon- dent would continue with its present plan. Section XXV-Sick Leave: Bryan testified that this sec- tion was dropped. Reiter testified and her notes indicate that there was never an agreement on sick leave. Section XXVI-Dental Care: Bryan testified and Reiter's notes indicate that this section was dropped. Section XXVII-Funeral Leave: Bryan testified and Bryan's affidavit indicates that this section was dropped. Reiter's notes are consistent with this testimony. Section XXVIII-Maternity Leave: Bryan testified and Reiter's notes indicate that this section was agreed on. Section XXIX-Bulletin Board: Bryan testified and Reiter's notes indicate that this section was agreed on. Section XXX-Termination and Renewal: Bryan testified and his affidavit indicates that the parties agreed to the language of this section for a 2-year contract. Reiter ac- knowledged that a 2-year contract was discussed. Bryan admitted that no agreement was reached on the con- tract's effective dates. On September 5, Peters and Reiter met alone at the Union's meeting hall. Bryan was not able to attend this meeting. Peters testified that he explained Bryan's ab- sence to Reiter and told her that it was his understanding that there was only one issue left. According to Peters, MAYWOOD DO-NUT CO., INC. 535 Reiter agreed that only wages remained at issue. Peters testified that Reiter informed him that Respondent would agree to a 5-percent increase. Peters asked Reiter if the 5 percent was for each year of the contract and she said yes. Peters testified that he told Reiter that she had a deal, and Reiter's response was "fine." According to Peters, the meeting lasted only about 2 minutes and Reiter did not even sit down. Reiter did recall meeting with Peters and talking to him, but she had no recollec- tion of saying, "We have a deal" and "fine." Reiter did acknowledge, however, that she was "hazy on it in terms of exactly what was said." Reiter claimed that she "would have never said we have a deal; fine. I didn't have authority to do that." According to Reiter, the most that she would have said was that she would dis- cuss it with Respondent and if Respondent agreed, fine. Reiter testified earlier that she could not remember what the agreement was as to the wage increase. According to Reiter, she and the Union agreed on some type of wage increase subject to Respondent's approval. Reiter testi- fied that she thought the increase was a little higher than 3 percent. Reiter never specifically denied that she had offered a 5-percent wage increase for each year of the contract. Walters testified that, on September 7 or 8, Reiter called him and asked if he could furnish her with a copy of the negotiation notes because she had misplaced her notes. Walters told Reiter that he would go through Bryan's files and make a copy for her. Walters said that he would wait for Reiter to appear at the Union's office around 5 or 5:30 that evening. Walters testified that he also asked Reiter why she needed the notes, telling her that it was his understanding that they had reached an agreement. According to Walters, Reiter told him, "I thought we did, but it appears we don't." Walters testi- fied that Reiter told him that she was going to meet with Nicholas the following day and that Nicholas wanted to review "the whole thing all over again." When Walters reiterated to Reiter that it was his understanding that an agreement had been reached and that he did not under- stand why Nicholas wanted to review the agreement, Reiter replied, "Well, it isn't; I thought it was, I'm upset about it, but that's the way it is." Reiter did not testify about this telephone conversation with Walters. Walters testified that he met with Reiter in the Union's office around 5:30 or 6 o'clock that evening. No one else was present during this meeting. According to Walters, he told Reiter that Nicholas had better sign the agree- ment because "we've got an agreement." Reiter respond- ed, "I'm sorry, but we've tried, and I know you have done your best, I've done my best, but that's the way it is, that's what he wants, and I am bound to do as he says." According to Walters, Reiter also said that "if we don't have an agreement, I may just tender my resigna- tion as a representative." Walters testified that he told Reiter to calm down and see if she could get Respondent to sign the agreement the following day. Reiter testified that she had some recollection of meeting with Walters but that she thought it happened earlier in the negotia- tions. Reiter testified that she thought that Walters had xeroxed notes for her but that it had been so long ago that she was hazy on it. Although she was not sure, Reiter thought that Walters had xeroxed her own notes for her. Reiter did not testify about the conversations with Walters during this meeting. Walters testified that several days later Reiter called and said that they did not have an agreement, that Re- spondent would not sign, and that she had given a notice that she no longer represented Respondent. Reiter testi- fied that, after the last negotiating session, she talked with Nicholas, but could not reach an agreement because of problems with the union-security clause and some other items. According to Reiter, she then contacted the Union and told them that an agreement could not be reached and that she was having difficulty in having her client agree to all the terms the way they had been pro- posed. After this final contact with Reiter, the Union filed the charge in Case 21-CA-17064. After the second charge was filed, Sullivan called Walters. Walters testified that Sullivan said that he was again representing Respondent and wanted to meet with the Union to go over what had transpired with Reiter. Walters did not agree to meet at first but told Sullivan that he would contact him later. Subsequently, a meeting was arranged for October 23, and was held at Sullivan's office. Sullivan, Bryan, and Walters were present. Bryan and Walters testified that Bryan informed Sullivan that, as far as the Union was concerned, it had reached an agreement with Reiter but that the Union had no objec- tions to showing Sullivan what had been agreed upon with Reiter. They then went over the Martino contract, pointing out to Sullivan each provision that had been agreed upon and each provision that had been dropped. Bryan and Walters testified that, at the conclusion of the meeting, Sullivan said that he had no problems with the agreement but had to discuss it with Nicholas. Sullivan testified that he was informed in the latter part of 1978 that negotiations had broken down and that Nicholas was not happy with Reiter's representation. Sullivan met with Nicholas in September or October and Nicholas asked him to try to straighten out the negotiations be- cause "it wasn't completed; it was not final." Sullivan testified that he told Bryan at the meeting on October 23 that any agreement had to be finalized by Nicholas. Sul- livan also testified that the effective dates of the contract were discussed but that no agreement was reached. Ac- cording to Sullivan, Bryan said it was necessary to make the contract retroactive but that Sullivan could discuss it with Nicholas. Later, Sullivan testified that he had planned to talk to Nicholas to see if Nicholas would be agreeable to a "retroactive situation." However, Sullivan gave no explanation as to why Nicholas would want to make the contract retroactive when the Union had agreed that the contract need not be retroactive. Sullivan testified that Bryan also said that Sullivan could go ahead and write his own grievance procedure. Bryan tes- tified that he did not agree to allow Sullivan to rewrite the grievance procedure or any other provision of the contract that had been negotiated with Reiter. Accord- ing to Bryan he did not agree to any changes being made in the contract that had been negotiated with Reiter. Sometime after the October 23 meeting, Sullivan called Walters. According to Walters, Sullivan stated that he had met with Nicholas and gone over the con- MAYWOOD DO-NUT CO.. N. 535 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract with him and that he would be glad to type up the contract. Walters did not immediately receive a typed version of the contract and had to call Sullivan several times before one was mailed to him. When Walters re- ceived the contract, he did not read it but merely looked at the wage provisions. According to Walters, the wage provision reflected only a 3-percent rather than a 5-per- cent wage increase. Walters called Sullivan and set up a meeting at Sullivan's office. Walters thought that this meeting was held towards the end of November at ap- proximately 9 o'clock in the morning. Walters testified that he took copies of the contract out of his folder and pointed out that Sullivan had put in a 3-percent wage in- crease instead of the 5-percent wage increase that had been agreed upon. According to Walters, Sullivan agreed that there was a discrepancy and crossed out the 3 percent and wrote in 5 percent. Walters signed the agreement and then asked Sullivan to sign it. Sullivan in- formed Walters that he could not sign the contract be- cause Nicholas wanted to go over it again. When Wal- ters stated that he did not understand why it was neces- sary for Sullivan to review the whole contract again with Nicholas, Sullivan said, according to Walters, "I'll take care of it, there is no problem." Sullivan testified that he met with Walters the last week in December at Sullivan's office. According to Sullivan, he told Walters that Nicholas found the contract confusing and that Sul- livan would have to explain it to him. Sullivan testified that Nicholas had informed him that Nicholas had not agreed to the 5-percent wage increase. Sullivan also testi- fied that he did not cross out the 3 percent and write in 5 percent. According to Sullivan, he told Walters that he did not get Nicholas to confirm the 5 percent, but that he would take it to Nicholas and "if he confirms it, it will be all right with me." Sullivan also testified that the typed version of the contract (G.C. Exh. 3) was different from what Sullivan had authorized his office to type up. Sometime after this meeting with Sullivan, Walters re- turned a telephone call from Sullivan. Walters testified that Sullivan informed him that he had met with Nicho- las, that Nicholas had experienced a loss for the previous year, and that Nicholas refused to sign any agreement that would entail a monetary increase. Sullivan testified that he met with Nicholas. According to Sullivan, Ni- cholas informed him that he had lost money the previous year and his two major accounts and could not afford any increase in wages. Sullivan testified that he told Wal- ters that, if Respondent was able to get back the two lost accounts, Respondent could probably give an increase. Walters' telephone conversation with Sullivan was the last contact between the parties. Concluding Findings and Analysis It is clear that no meaningful negotiations took place in the six meetings with Gund. The fact that Gund re- peatedly asserted that he would have a representative of management present at the "next" meeting with the Union indicates to me that he was not authorized to make concessions without the specific approval of Re- spondent. No representative of Respondent appeared in the six meetings Gund held with the Union. I was not persuaded with the demeanor of Gund who, while testi- fying, spoke in an arrogant manner and was unconvinc- ing. I do not credit his testimony. Mike Sullivan, Respondent's second labor relations consultant, made two appointments with the Union, April 13 and 20, but Sullivan did not show up for either session. After these failures to keep appointments, the Union filed an unfair labor practice charge in Case 21- CA-16883. Subsequent to the filing of the charge, Sulli- van contacted the Union and a meeting was scheduled for June 5 in Sullivan's office. Once again Sullivan did not put in an appearance. A meeting did take place be- tween Sullivan's wife and an associate of Sullivan, Tim Ryan. A second meeting was held in Sullivan's office about a week later, at which Sullivan was present. Sulli- van concluded this session by stating he had to go over the Union's proposal with his principal, Nicholas (owner of Respondent's business). No additional meetings with Sullivan took place at this time. After an initial meeting with Sullivan, the Company was again contacted by Genise Reiter, who said she had been retained by Respondent to represent it in negotia- tions with the Union and requested a meeting with the Union. A first meeting scheduled among the union repre- sentatives and Reiter was set up for June 20 and then rescheduled for June 26. This meeting took place at the Union's office. Reiter, Walters, Peters, and Bryan were present.At this first meeting with Reiter, Walters asked Reiter if she had the authority to negotiate a contract for Respondent. Reiter testified on direct examination as fol- lows: I told them I was acting in behalf of Maywood as a representative and I would be happy to bring back suggestions that they made. I would have input in dealing with my client. I had no authority to bind them. They would have a final say-so in the matter on what happened. Thereafter, a number of bargaining sessions took place and Reiter testified, "I know that we finally between ourselves agreed on some type of wage increase subject to Maywood Do-Nut approval." There is a direct conflict in the testimony of Peters and Reiter. At this meeting which took place on Septem- ber 5, Peters testified, Reiter allegedly agreed to a 5-per- cent increase in wages. Peters continued his testimony by stating that Reiter allegedly said they had a deal and Reiter's response was, "Fine." This meeting lasted only a matter of minutes-Reiter did not even sit down during the discussion. Reiter testified that she agreed in principle on a number of clauses in the Martino contract, the verbiage was to be worked out later; some provisions were not agreed to and as to these matters where no agreement was reached, they would be put on hold to be worked out later. Reiter testified that she was hazy on many items that were discussed. After a brief discussion of the Martino contract, Reiter said she would be meeting with Respondent and would be ready to negotiate at the next meeting. She testified: I would never have said we have a deal, fine. I didn't have authority to do that. If Peters said we MAYWOOD DO-NUT CO., INC. 537 have a deal it might have been I will go back and talk with my clients, and if they agreed, fine. In evaluating the credibility of Peters and Reiter in the meeting which took place on September 5, it becomes necessary to make some preliminary comments. First, Peters was not a regular participant in the bargaining ses- sions. He was present at many of the sessions but only became the sole union spokesman at the meeting of Sep- tember 5 when he was pinch-hitting for Bryan and Wal- ters, who were not present. I was not persuaded that his recollection of Reiter's alleged statement that a deal on wages had been made and that she allegedly said, "Fine," is an accurate reflection of what took place. On the other hand, while Reiter was hesitant in some of her testimony and she punctuated some of her remarks with cautionary words that she was "hazy" or "did not re- member," she was consistent and clear on the matter of her authority. Frequently, in the course of her recital she iterated and reiterated that she had to secure approval from Nicholas before any final agreement could be reached. While she appeared to be clothed with apparent authority to negotiate for Respondent, the record sup- ports the conclusion that any agreements she made were conditioned on securing approval from her principal. She became frustrated by her failure to obtain approval from Nicholas and his failure to approve her tentative agree- ments caused her to terminate her relationship with Re- spondent. Furthermore, the limitation on her authority is inter- nally consistent with the similar limitations on the au- thority of Gund and Sullivan. I credit Reiter's testimony concerning the fact that she operated throughout her ne- gotiations with a clear limitation on her authority and this was communicated to the Union. In view of the above, I conclude and find that no agreement was ever reached between Respondent and the Union on wages, the term of the agreement, the lan- guage of the proposals, union security, vacations, holi- days, and the other items set forth in detail in the section in this Decision entitled "The Collective-Bargaining Ses- sions." For this reason I recommend that the allegation in the complaint that the parties reached complete agree- ment on a contract, and all that remained to be done was to memorialize it in a signed contract, be dismissed. With respect to the credibility of Sullivan, I find that he was vague, inconsistent, confused, and a thoroughly unconvincing witness, and for these reasons I do not credit his testimony. I conclude and find that Respondent did violate Sec- tion 8(a)(5) of the Act by engaging through its represen- tatives in dilatory and surface bargaining by, among other things, failing to meet with the Union at reasonable times and places, refusing to present counterproposals and utilizing negotiators who had no authority to make any concessions and indeed made none, because what- ever else took place in the many bargaining sessions, which spanned a period of many months, all three of the Respondent's representatives made clear to the Union that they did not have authority to consummate an agreement without the approval of Nicholas. As is clear- ly reflected in the record, Nicholas did not agree to the terms and conditions which had been ostensibly negotiat- ed by Reiter with Peters on September 5. Respondent's actions in this connection therefore are clearly violative of Section 8(a)(5), and I so find. These activities also rep- resent a violation of Section 8(a)(l) and I so find. Respondent in its brief raises a question as to whether or not the Union represents a majority of the employees in the appropriate unit. In this connection, it should be noted that the Regional Director certified the Union as the excusive collective-bargaining representative on Sep- tember 27, 1977. The only arguable date when an agree- ment allegedly was reached between Respondent and the Union was on September 5, 1978. It is well settled that in the first year after a certification there is an irrebuttable presumption that the Union has a majority in the appro- priate bargaining unit. Under these circumstances, since the date of September 5 falls within the first year since the certification of the Union, there is no merit to Re- spondent's contention. On the basis of the irrebuttable presumption which prevails in the instant case, I find that the Union did represent a majority of the Respon- dent's employees in the following unit: All production and maintenance employees, includ- ing shipping and receiving employees and truck drivers employed by Respondent at its facility lo- cated at 6174 Maywood Avenue, Huntington Park, California; excluding office clerical employees, pro- fessional employees, guards, and supervisors as de- fined in the Act which unit is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Accordingly, I find in these circumstances that Re- spondent's employees did in fact represent a majority at the time when an alleged contract was reached on Sep- tember 5. In view of the above, I find and conclude that Respon- dent engaged in unfair labor practices by failing to bar- gain in good faith with the Union and I so find. CONCI USIONS OF LAW 1. Respondent Maywood Do-Nut Co., Inc., is an em- ployer within the meaning of Section 2(2) of the Act en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By engaging in dilatory and surface bargaining by, among other things, failing to meet with the Union at reasonable times and places, refusing to present counter- proposals and utilizing negotiators who had no authority to make any concessions, Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. 3. Respondent has not in any other manner committed violations of the Act. MAYWOOD DO-NUT CO., INC. 537 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(A)(I) and (5) of the Act, it shall be ordered to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. In order to insure that the employees in the appropriate unit will be accorded the services of their collective-bargaining agent for the period provided by law, the initial period of certification shall be construed as beginning on the date Respondent com- mences to bargain in good faith with the Union as a recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The Respondent, Maywood Do-Nut Co., Inc., Hun- tington Park, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively, in good faith, con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 37, Bakery, Con- fectionery and Tobacco Workers' International Union of America, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. All production and maintenance employees, includ- ing shipping and receiving employees and truck drivers employed by Respondent at its facility lo- cated at 6174 Maywood Avenue, Huntington Park, California, excluding office clerical employees, pro- fessional employees, guards, and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all em- ployees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Huntington Park, California, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleges unfair labor practices not specifically found herein be dismissed. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."