The Emporium

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehouse Union. Local 860, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (The Emporium) and Joisse Brune. Case 20 CB-4247 June 12, 1978 DECISION AN[) ORDER BY CHAIRMAN FANNING AND Ml MBI ERS JNKINS ANI) M:RPIIY On February 7, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed cross-exceptions and a brief. 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, findings.' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National .abor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative L.aw Judge and hereby orders that the Respondent, Warehouse Union, lo- cal 860, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Sari Francisco, California, its officers, agents, and representatives, 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. 'Respondent has excepted to certain credihilitt findings made by the Administrative Law Judge It is the Board's established policy not io, \cr rule an Administrative Law Judge's resolutions with respect to credlhiliht unless the clear preponderance of all of the rele.ant evidence convinies us that the resolutions are incorrect. Standard Dri W$all Products. In,. 4l NI.RB 544 1950). enfd 188 F.2d 362 ((.A 3. 1951). We ha.e carefulls examined the record and find no basis for reversing his findings 2 In adopting the conclusion that Respondent violated Sec. 8(hb)lI itA) of the Act we rely on the finding that Respondent fRiled to represent ceir eniplosee in the unit fairly, impartialls, and in good faith by persisting ill demanding a wage increase it knew would result in their termination See Sle .l s l i.oui.rvillet ,N ashillH Railroad (C. is il. 323 t S. 192. 203 (194t) We note that it did not advise the clericals their wage demaind was jelupard izing their jobs while insisting that it wals prompted by the unit's demnand for the increase l In his Order the Administrative L aw Judge did not specificall? pro ldi that Respondent's liabilitv for backpay wiould cease when each lertllitined employee obtained substantially equivalent emplosnrent. hliouever thait is how we construe his Order to "make wuhole" all of the discharged emplo X ees APPENDIX NOlTCE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board. WE WILL NOT fail fairly to represent warehouse clerical employees of the Emporium as required by our collective-bargaining agreement with that Company. WE WILL. NOT in any' like or related manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. We wil.l make whole all clerical employees discharged October 15, 1976, at our warehouse, SB-4, in South San Francisco, California, for any loss of pay they suffered as a result of our unfair labor practices, with interest thereon, from that date until they obtain substantially equivalent employment. WAREHOLUSE UNION, Lo0( . 860, INIIFRNA- TIONAL BROIFIERHOIODI OF T XMS I ERS. CHLAUFFEUtRS, WARYItlOU'SI1 Mi N & HL I.PI RS OF AMERICA DECISION STATEMEN1 OF MIE CASE Russr.ll L STEVENS. Administrative Law Judge: This matter was heard in San Francisco, California, on October 18 and December 6, 1977.' The complaint, issued June 29, is based upon a charge filed February 10 by Joisse Brune, an individual. The complaint alleges that Warehouse Union, Local 860, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America (hereinafter the Union or Respondent), violated Section 8(b)(l (A) of the National Labor Relations Act, as amended. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: mI 1 datcs hereinafter are within 1977 unless stated to he Otherwise 236 NLRB No. 101 844 TEAMSTERS WAREHOUSE UNION, LOCAL 860 FINDINGS OF FACT I. JURISDICTION The Emporium, a division of Carter Hawley Hale Stores, Inc., a California corporation with places of business in various locations throughout California, is engaged in re- tail sales. During the past 12 months The Emporium, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and purchased and received at its facilities in the State of California, goods and materials valued in excess of $10,000 from suppliers located outside the State of California. I find that The Emporium is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce, within the meaning of Sec- tion 2(6) and (7) of the Act. 11, THE LABOR ORGANIZATION INVO.VED Warehouse Union, Local 860, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Emporium maintains three warehouse facilities, two of which are located in San Francisco. The third, which is involved in this case, was opened in 1972 in South San Francisco, a few miles south of the city of San Francisco. The third warehouse usually is referred to as SB-4 (Service Building 4). A total of approximately 100 employees are employed in the three warehouses, of which approximately 31 are at SB-4. Employees at SB-4 include approximately 13 clericals, in addition to receiving clerks, general ware- housemen, and janitors. The 13 clericals are the SB-4 em- ployees involved in the controversy herein. Prior to establishment by The Emporium of SB-4, cleri- cal employees employed for processing warehouse clerical work were represented by Local 1100 of the Retail Clerks Union. When SB-4 was established, the clericals involved herein were moved to that warehouse. Since Local 1100's jurisdiction did not include South San Francisco, it was agreed by Respondent and The Emporium that the cleri- cals of SB-4 would be included within the warehouse unit represented by Respondent. A transfer of the clericals from Local 1100 to Respondent subsequently was effected, and since 1972 the clericals in SB-4 have been members of, and represented by, Respondent. Clericals employed in The Emporium's other two warehouses, in the city of San Fran- cisco, have continued to be represented by Local 1100. In negotiations between The Emporium and Local 860 for the 1973-76 contract, wages for the SB-4 clericals were estab- lished at the same rate as those for clericals represented by Local 1100 in the other two warehouses, in San Francisco. Wages for nonclerical employees at SB-4 were established at the same rate as wages for nonclerical employees repre- sented by Respondent at the other two warehouses in San Francisco, and those wages were higher than the wages for clericals. Negotiation sessions for the 1976--79 contract between Respondent and The Emporium were conducted on four dates: July 26. August 4. August I1, and August 13.2 The August 4 negotiations were divided into a morning session and an afternoon session. During negotiations the parties frequently discussed, among other matters, Respondent's demand that SB-4 clericals receive, under the 1976-79 con- tract, the same increase as the warehousemen.) i.e., an in- crease of 70 cents per hour for each of the 3 years of the new contract. The Emporium's initial offer was for increas- es to be given to SB-4 clericals in the amounts of 35 cents each year for the first 2 years, and parity with Local 1100 increases for such other clericals the third year. In addition to discussions on this subject during negotiations, represen- tatives of Respondent and The Emporium discussed the matter on several other occasions, personally and by tele- phone. A contract was signed sometime after the last nego- tiation session, effective June 1., 1976, to June 1. 1979. The contract provides, inter alia, for increases to be given to SB-4 clericals in the amount of 35 cents per hour during each of the 3 years of contract coverage, but that provision was "red circled," 4 and the clericals received an additional raise of 35 cents per hour, totalling 70 cents per hour. On Friday, October 15, 1976. The Emporium terminated the clerical operation at SB-4. and permanently laid off all the clerical employees employed there. On November 10, Respondent filed with The Emporium a grievance based upon The Emporium's actions of October 15. On Novem- ber 18, Respondent filed an unfair labor practice charge against The Emporium, alleging violations of Section 8(a)(3) and (5) of the Act by reason of the actions taken by The Emporium on October 15. The grievance went to arbi- tration, which is pending. The Acting Regional Director for Region 20, notified Respondent's attorney that he re- fused to issue a complaint on the unfair labor practice charge. That decision was appealed by Respondent to the Board, and the Board sustained the dismissal. B. Contentions of the Parties General Counsel contends that Respondent pressed the demand of SB-4's clerical employees for 70- cent wage in- creases in the new contract, and obtained that increase. - All these negoltlaion dates are ilthin 1976 All clericals except one are females. General Counsel alleged In Ihe complaint that Respnldent fiiled fairl? til represent the clericals because of sex. and some teslnmon, .s ls elicited in an effort to prove the allegation Hlouever. that effort was not successful . Aout the most that can be found Is that. possibls. on one or utwo occasilon the clericals involved herein were referred to h. Respondent's represenlalv.es as "broads" That Is an Inade- quate basis for a finding of discrimination against women, unsupported as it is. hs ans evidence of dlscrimillatlon ' this phrase me.lns, It the parties, that the clericals would he gilen addi- tional Increases of 3S cents per hour each sear of contract covserage, not shou n ill the contract. for . total of 70 cents 70 cents 70 cents. although the contract reads 35 sents 35 cent, 15 cents The reason for this as not fulls explored at the hearing. hut It appears thau it was to assist Respondent in Its negoti.altions i th Lo.cal I I(X). relastle to clericals other than those at SB-4 845 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with knowledge of, and agreement to, The Emporium's de- termination to close the clerical section if such increases were given, and that such knowledge and agreement were not communicated to the affected employees. Respondent contends that it heard The Emporium's statements during negotiation, that it would close the cleri- cal section if 70 cents 70 cents 70 cents increases were in- sisted upon by Respondent, but that the Union considered those statements to be an ordinary negotiation stance, or bluffing. Respondent denies that it knew in advance about, or later condoned, closure of the clerical section of SB-4, and contends that it properly represented the clerical em- ployees by filing unfair labor practice charges and a con- tractual grievance. C. Negotiation Session of Jul, 26 This session was held at the St. Francis Hotel in San Francisco, for the purpose, as were all later sessions, of negotiating a 1976-79 contract to cover all three of The Emporium's warehouse facilities. In attendance for The Emporium were its spokesman, Robert Steinberg, director of legal personnel service for the Emporium's parent cor- poration, Carter Hawley Hale Stores, Inc., and Ronald Krieger, The Emporium's then director of employee rela- tions. Representing Respondent were its spokeman, Mark O'Reilly. Respondent's secretary-treasurer: Henry Aguir- re,5 Respondent's president; and Robert Paterson,6 Re- spondent's business agent.7 Steinberg characterized this as a "sparring session," with very little actual negotiation; the two groups "were feeling each other out." Steinberg said this was the first time he had met O'Reilly and Paterson. Krieger testified that, during the meeting, Paterson made a side comment in a low voice. stating that he knew The Emporium was planning to get rid of the (clerical) jobs; and that O'Reilly then said "We have both got a problem. We have got a problem." O'Reilly testified that he told Steinberg at this session that Respondent's wage proposal was for the SB-4 clericals to receive the same increases, i.e., 70 cents-70 cents-70 cents, as the warehousemen, with the exception of furniture handlers. O'Reilly said Steinberg was quite upset, and stat- ed "this may cause him to maybe phase out this opera- tion." O'Reilly testified "I told him forget about it,-knock it off .. .. I didn't take him serious." Paterson denied making the sotto vace comment attribut- ed to him by Krieger, and further testified: . . .When Mr. O'Reilly handed over to the Empori- um the demands expected for the '76'79 agreement, Mr. Steinberg was very upset when he seen 70 cents across the board for the clerical employees in the South San Francisco warehouse. Immediately Mr. Steinberg took very much exception to this proposal Aguirre did noit testify due it) illness, Also sometlimes spelled during these procreedings as Patterson All ihese individuals herein tire referred to hb their last names. and he made some statement that if this was to hap- pen, he was very upset, it would mean that the clerical would be eliminated. I looked over at Mr. O'Reilly and his face got rather flushed and he says, "Knock it off." He says, "We're here to negotiate 70, 70 and 70." If Mr. Krieger heard me make any statements it was to Mr. Aguirre's effect that this is what I figured would be the answer from the Emporium. Q. Are you now quoting a statement that you made? A. I may have said something to Mr. Aguirre, "Here we go," as soon as we handed the 70 cents. D. The Morning Session of August 4 This session also was held at the St. Francis Hotel, and was attended by the same persons who attended the earlier session, with Steinberg and O'Reilly again acting as spokesmen. Steinberg testified that Respondent's representative again took the position that the SB-4 clericals must receive the same increases as the warehousemen, and that he re- plied "the more that The Emporium was required to pay the clericals, the better the likelihood was that the clerical jobs would be eliminated." Krieger testified: Steinberg made the company offer rel- ative to increases, of 35 cents-35 cents-parity, after which O'Reilly said "It was okay to eliminate the broads, but they had to have $.70." Steinberg replied "No, we are going with our former proposal" and Aguirre said "No. No. Give them the increase and then get rid of them." O'Reilly denied stating that he said "It was okay to elim- inate the broads . . ." and testified that he never said it was all right to phase out the clerical employees. O'Reilly said, however, that the question of such a possible elimina- tion of jobs was raised by Steinberg "several times." O'Reilly testified that Aguirre said at the meeting, "Give it to them, [referring to the 70 cents,] and then get rid of them," and that O'Reilly replied "knock it off, forget about that kind of talk." Finally, O'Reilly testified: Well, when there were complaints about the in- crease that we had asked, I did tell management that they had hired these people and put them in these positions, it was their problem, not ours. Paterson testified that at no time did O'Reilly say that it would be all right to eliminate the clerical employees, so long as they recieved their requested raise. Paterson stated there was no discussion at the session, other than by Aguir- re, about eliminating the clerical employees, but that Stein- berg discussed the possibility of "phasing out" those em- ployees. E. The Afternoon Session of August 4 Steinberg testified: The same group of representatives met in O'Reilly's office, and again talked about clerical wage increases and The Emporium's offer of 35 cents-35 cents-35 cents, plus 15 cents red-circled for most of the clericals in the first year. O'Reilly said the only way The Emporium could get a contract without a strike was to give 846 TEAMSTERS WAREHOUSE UNION, LOCAL 860 the clericals 70 cents-70 cents-70 cents. Steinberg said if that was O'Reilly's position, he would be successful in ne- gotiating the clericals out of jobs. Steinberg stated: Mr. O'Reilly's comments basically, concerning the clericals were, "You caused the problem. It is your problem. You are going to have to live with it. We didn't ask for the girls, but we are stuck with them, and you are going to be stuck with the wage increases, because you are going to have a strike unless you give them the $.70." Steinberg further testified: O'Reilly took him to the airport following the session, and they talked about the problem involving the clericals, including the possibility of a strike, with the warehousemen supporting the clericals. Steinberg said he was going to recommend to The Emporium that the increases be paid as demanded by Respondent, and that the clericals then be eliminated. He asked O'Reilly if he could represent that he had Respondent's agreement to that proposal, without a strike or arbitration, and O'Reilly did not answer. Krieger testified that O'Reilly said, during the session, "[W]e didn't want the broads in the first place. You gave them to us and now they are your problem." O'Reilly testified that, during the drive to the airport with Steinberg, the latter asked him if the Union would agree to a phaseout of the clerical employees if The Empo- rium would give the requested increases, in order to avoid a strike, and O'Reilly did not reply. O'Reilly said he never agreed to an elimination of clerical employees. Paterson did not testify on this subject. F. The Session of August 11 This session was held at the Hyatt Hotel, attended by the same representatives and also attended by Herbert Suva- co,8 one of Respondent's business agents, and Perry Pol- land, who was Aguirre's attorney. Steinberg testified: There was no negotiating at this ses- sion concerning the SB-4 clericals.' However, during a break when O'Reilly and Polland were out of the room, Steinberg asked Aguirre if he knew about Steinberg's talk with O'Reilly en route to the airport on August 4, relative to elimination of the clericals. Aguirre "said he was aware of that and there wouldn't be any problem." Krieger's testimony was somewhat different from that of Steinberg. Krieger said the following conversation took place during a break, while Suvaco, Paterson, Aguirre, Steinberg, and Krieger were in the room: Bob Steinberg, my negotiator, then told Henry Aguirre, the president, something to the effect, "Hey, look here, you know we are going to be eliminating the clericals, if you force us to do this." Henry's comment back was, "Look, there is no problem. Just work with me. You don't have to work with Mark. Just don't bring it up again." 8 Steinberg credibly testified that he first met Suvaco at this meeting 9 Steinberg credibly testified that O'ReillN agreed by telephone on August 9 to 35 cents-35 cents-35 3 cents on the contract, with "red-circle" of 3s cents-35 cents 35 cen cents. O'Reilly did not testify relative to this point, but Pater- son corroborated Krieger's testimony. quoted above. Pater- son further testified: I told him at that point that I didn't think this was a negotiation, that Mr. Mark O'Reilly was the chief neg- otiator, and I walked out towards the back of the room and came back. And I said there was no reason for any statements to be made until Mr. O'Reilly came back into this meeting. G. The Session of August 13 This was the last formal negotiating session attended by Steinberg. Krieger, O'Reilly, and Paterson. The subject of SB-4 clericals was not discussed, so far as the record shows. H. Post -Negotiation Events I. Krieger testified that he received a telephone call from O'Reilly on August 16, 1976, and O'Reilly asked about a note on the SB-4 bulletin board, stating that some clericals were going to be working part time in San Fran- cisco.' 0 Krieger said he knew nothing about the note. O'Reilly stated "That if this was our plan to eliminate the clericals, that it was very poor timing on our part." Aguirre came on the telephone and stated "Hey, you promised not to make waves, so soon." O'Reilly testified that he remembers the telephone call, but that he does not recall stating to Krieger "your timing is bad." 2. Krieger testified that O'Reilly called him on the tele- phone August 17. "wanted to know why I was stirring up the troops." and stated "I should remember that the mem- bers had to vote on the contract, and if they voted no on it, it would revoke the whole contract," Krieger testified that he told O'Reilly "I don't have any idea what you are talk- ing about." O'Reilly did not testify relative to this point. 3. Krieger testified that he called Aguirre on the tele- phone August 18: 1 told Henry that I was very concerned about the telephone conversations that I had had with Mark. I also told him that we did not need rumors floating around, that since that time I had had my people- meaning Emporium executives- working on eliminat- ing the job, and that I would like to get together with him and go over the plan with him. I then suggested to him that we have a luncheon meeting . Krieger and Aguirre then agreed to meet for lunch, with Paterson also to attend. As noted, supra, Aguirre did not testify. 4. Krieger, Aguirre, and Paterson met for lunch and a discussion on August 20. Krieger testified that at the first part of the conversation, Aguirre said "Ron. look, you can work with me now. You A\, noted intr. I he Imporiunm planned to eliminate the lerical section on Auguilst 26 847 DECISIONS OF NATIONAL LABOR RELATIONS BOARD don't have to work with Mark O'Reilly. You work with me." Paterson left for a few minutes, and Krieger talked with Aguirre: I told him I had been very concerned with the calls that I received from Mark and that it was very clear that both he, meaning Henry, and Bob Patter- son, that we did not plan on transferring the people, that we were going to be eliminating those positions. Henry made the comment that yes, he understood that. Then I told him that I had had my people working very hard on this, and that we were all ready to go on Friday, and that they would be eliminated on Friday. Q. Friday being what date? A. August, I believe the 26th. Q. Or thereabouts, whatever Friday that happened to be? A. Well, we were talking on this week, and it was going to be a week out on Friday. Q. And what was his response to that? A. When I told him that he said he had no problem with it. After Paterson returned from his brief absence, Krieger reviewed for him the conversation between Krieger and Aguirre. Paterson said both The Emporium and Respon- dent had problems with the proposed action, and he re- ferred to one of the clericals, Jo (Joisse) Brune as a "rabble rouser," who had taken notes during a meeting Respon- dent held with the clericals, at which the clericals were told they were going to bargain themselves out of a job. Pater- son wanted to know why The Emporium could not wait a month or so to take action, and Krieger said they could not afford economically to wait. Patterson told Krieger that, if Krieger ever said the luncheon meeting took place, he and Aguirre would deny it because Paterson did not want any more troubles with the NLRB. Paterson testified that, during the lunch, Krieger told Pa- terson and Aguirre that The Emporium was "going to elim- inate the clericals." and Paterson became "rather upset ..rather angry." Paterson said "I'm not in any position to sit here. As a matter of fact, for your information, Mr. O'Reilly is up in Mr. Polland's office and I don't even think the ink is dry on the contract." Paterson then left for about 15 minutes, and when he returned, Krieger and Aguirre were talking about the clerical situation. Aguirre told Krieger, inter alia, that he (Aguirre) could "handle Mr. O'Reilly," to which Patterson objected. Aguirre said that he thought he would be able to take care of the situation without approval of O'Reilly. Aguirre also told Krieger "not to take hasty action," and Paterson told Krieger "it would be better to wait a month or two . . ." and go through channels by writing to O'Reilly, and negotiating the phaseout. Paterson told Krieger that O'Reilly had pressed for the 70 cents-70 cents-70 cents increase because of Paterson's insistence. Paterson said he later told O'Reil- ly about the luncheon conversation, on a date he does not recall. Paterson acknowledged that he referred to Joisse Brune (Brune) as a rabble rouser and a smart cookie, but later testified that Brune was a very good union member, and that he used the term "rabble rouser" as a compliment. because Brune freely spoke out on the clerical employees' desires. Steinberg testified that he talked with O;Reilly on the telephone August 25, and during the conversation O'Reilly complained about the luncheon meeting of Krieger, Pater- son, and Aguirre and said it "smacked of collusion." Stein- berg said O'Reilly knew that was not so, and the two ar- gued about the clerical elimination, with O'Reilly primarily concerned about the timing; threatening a strike; and re- questing that the elimination be delayed until after Christ- mas. Steinberg said he would talk with The Emporium about a possible delay. O'Reilly never denied during the conversation Steinberg's statement that Respondent knew the clericals would be eliminated if The Emporium had to give 70 cents-70 cents-70 cents increases. O'Reilly testified: He did not know in advance about the luncheon; he learned about it from Paterson, 2 weeks or a month after it was held. O'Reilly talked with Steinberg on the telephone, and during the conversation stated that he did not like people not in authority, reaching agreements. Steinberg seemed surprised to learn of the luncheon meet- ing. 5. Krieger testified that he called Aguirre on the tele- phone approximately August 26, and said he was surprised because Steinberg had told him O'Reilly called Steinberg and said there were problems about the elimination of cler- icals scheduled for Friday of that week. Aguirre said he did not know what the problem was, but would look into it. Aguirre suggested a delay of the elimination schedule for a couple of weeks, and Krieger said he would try to obtain such a delay. The delay was obtained. 6. On October II, Krieger, Paterson, and Aguirre met for lunch in order for Krieger to introduce a new person on his staff. Krieger testified: As they left after lunch, Pater- son and the new employee were walking ahead, and Krieg- er stopped Aguirre and told him "everything is all set and on October 15 we will be eliminating the girls." Aguirre said "Fine." 7. Krieger testified that on October 18, following a call earlier that day from Suvaco, who asked what happened relative to the layoff, Aguirre called Krieger and said, inter alia "stick with it, that we had every right under the law to do what we did, and that Mark O'Reilly was going to call me, but to stick with it." O'Reilly did not call Krieger. 8. Krieger testified: After he received Respondent's grievance, about November 11, he called Aguirre on the telephone and asked "Hey what gives here? Are you trying to sandbag me or what?" Aguirre replied "No, this is just a mere formality and Mark [note: O'Reilly] wouldn't be in town anyway." I. Respondent's Contact With the Clericals Brune testified that in the spring of 1976 she called Pa- terson to tell him the SB-4 clericals would like to have an increase in the new contract. Approximately the end of April 1976 a meeting of Respondent's membership was held to discuss negotiations for the new contract. Shortly thereafter, on April 26, Paterson came to the SB-4 at the request of the clericals and talked with them, primarily about requested wage increases. Approximately in August, 848 TEAMSTERS WAREHOUSE UNION. LOCAL 860 Respondent met with The Emporium's warehouse employ- ees, and the employees were told by O'Reilly that Respon- dent was getting what the warehousemen wanted, but "the women were hanging them up, somewhat." O'Reilly said the Company would not go along with a 70-cent increase for the clericals, but that more meetings would be held, and Respondent would keep pushing until it obtained the 70 cents. Soon thereafter O'Reilly and Paterson met with the warehousemen and clericals of SB-4. O'Reilly discussed all terms of the new contract, and said the clericals would receive their increase of 70 cents-70 cents-70 cents, with 35 cents-35 cents-35 cents being red-circled. Nothing was said about possible elimination of the clericals. A vote was taken, and the clericals accepted the contract. At no time thereafter did any union agent notify the clericals that their jobs may be eliminated. The layoff occurred October 15.1' Soon thereafter, the clericals met with an attorney and O'Reilly. O'Reilly was asked if the Union knew they were going to be laid off, and he replied that he knew nothing about it. O'Reilly exhibited a copy of the contract, and it had only Krieger's signature affixed. As they left, O'Reilly said he would notify the clericals if he heard anything fur- ther from The Emporium about the reason for the layoff. Nothing further was heard by the clericals from Respon- dent relative to the layoff. However, Brune's grievance rel- ative to an independent matter thereafter was pressed by Paterson to successful conclusion. Brune testified that, on approximately April 26, 1976, Paterson was at the SB-4 facility visiting with the clericals, and asked if any of them heard a rumor that SB-4 would be closed. Carol Foley (Foley), employed as an SB-4 clerical, cor- roborated Brune and also testified that she and some other clericals met with Suvaco October 16, and Suvaco said he did not know until then that the clericals had been laid off. The clericals met with Aguirre the following day, and he said that was the first he knew about the layoff. At the meeting with O'Reilly and the attorney, O'Reilly said The Emporium talked during negotiations about elimination of the clericals, but "that this happens at every negotiation .... It is always the biggest threat, that they are going to dump the employees." O'Reilly said the contract would not be signed by the Union "until this was settled." O'Reilly agreed to a suggestion about publicizing the matter, and Aguirre talked him out of it. O'Reilly then suggested a strike, but the attorney talked him out of that. Between October 15 and January I, Foley tried on approximately nine occasions to get in touch with Paterson, but without success. Counsel stipulated that five other named witnesses, if called to testify, would corroborate Brune and Foley. O'Reilly testified that he first learned on October 18, during a telephone conversation with Suvaco, that the cler- icals had been laid off. He met with the clericals in an attorney's office on October 20, but O'Reilly gave no de- tails of that meeting. He said he does not recall ever stating to the clericals that the Company was talking about possi- bly eliminating their jobs. l Brune was not present at the layoff on Fridav: she was laid off when she reported for work the following Monday. Discussion 1. Credibility of witnesses Krieger and Paterson gave the appearance of forthright witnesses who answered promptly and confidently. Krieger made extensive notes throughout the controversy between the parties. Those notes are in evidence. That is not a pro- bative fact, but it is a fact entitled to some consideration. Krieger and Paterson are credited unless stated otherwise. Brune and Foley testified in a convincing manner, and it was stipulated by counsel that their testimony would be corroborated by five named witnesses who were available but who were not called. Brune and Foley are credited. O'Reilly was not a convincing witness. Frequently he said he could not recall events, and often his answers were precluded by "probably." "possibly," or some other words of equivocation. He appeared hesitant and either some- what evasive, or possessed of a poor memory. O'Reilly is not credited unless otherwise stated. Paterson is credited where stated. The fact that the contract (as red-circled) signed by the parties provides for wage increases in the amounts sought by Respondent is not in dispute. Further, the fact that Respondent sought the raises that were given, primarily because of insistence by the SB-4 clerical employees, amply is shown by the record and is not in dispute. Finally, it is clear from O'Reilly's testimony, credited on this point and not challenged by General Counsel, that the warehousemen were prepared and willing to "back" the SB-4 clericals, to the extent of a strike if necessary, in sup- port of the increases sought by those clericals. 2. General Counsel's contention that the parties had an express agreement General Counsel contends that the parties had an ex- press agreement relative to elimination of clerical jobs. If there was such an agreement, it could have been made only by O'Reilly or Aguirre, or both, so far as Respondent is concerned. O'Reilly is Respondent's negotiator, and was its spokes- man at all negotiation sessions. He could have made the agreement alleged by General Counsel, had he so desired. Krieger testified that O'Reilly agreed during the morning session of August 4 that it was all right to eliminate the clerical jobs, so long as they first received their requested raises, but O'Reilly and Paterson denied such an agree- ment. Steinberg did not corroborate Krieger's testimony on this point. thus the testimony is in some doubt. Krieger generally was a credible witness and it is not believed that he would, deliberately, misrepresent what was stated. It appears possible that either Krieger was mistaken in his recollection of the meeting, or Steinberg's lack of corrobo- ration was an oversight. In any event, it is clear that Steinberg did not think he had an agreement with O'Reilly during the August 4 morning session. since he asked O'Reilly during the drive to the airport that afternoon for -: "Nitnesse, ,ere nol sequestered at the hearing 849 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Reilly's agreement. O'Reilly remained silent when Stein- berg asked for the agreement. That silence legally cannot be construed as an acceptance of Steinberg's offer. It is found that O'Reilly did not expressly agree, at any time during contract negotiations, to elimination of the clerical jobs. So far as postcontract communications outlined supra are concerned, there is no showing of an express agreement by O'Reilly. To the contrary, the testimony of Krieger, Steinberg, Paterson, and Foley clearly shows that O'Reilly made no such agreement. Aguirre has some responsibilities occasioned by his posi- tion as Respondent's president, and he works closely with Krieger 13 in administration of collective-bargaining agree- ments. All persons involved herein recognized that O'Reil- ly is Aguirre's "boss," and all negotiators, including Krieg- er and Steinberg, knew that O'Reilly was Respondent's principal negotiator and spokesman. Credited testimony by Krieger and Steinberg, that Aguirre expressly agreed to elimination of clerical jobs if requested raises were given, is supported by Paterson's testimony. However, as Respon- dent contends, a question is whether Aguirre has authority to make such an agreement. General Counsel introduced no testimony or evidence of Aguirre's actual authority, and the record does not show his implied or apparent authority to enter into such an agreement." It is clear that Krieger and, possibly, Steinberg attempted to deal on this subject with Aguirre, and to avoid dealing with O'Reilly. Krieger may have been taking advantage of a weak link in Respon- dent's chain of authority, but that does not alter the legal positions involved. What is important is how Krieger and Steinberg viewed the authority of Aguirre and O'Reilly. Steinberg acknowledged that Aguirre did not have authori- ty to bind the Union to the agreement he wanted. The only occasion wherein the agreement desired by The Emporium was proposed in contract terms was during the ride Stein- berg and O'Reilly, the two spokesmen and negotiators, took to the airport on August 4. It is apparent therefrom that Steinberg believed an agreement must be reached with O'Reilly, if anyone. It is found that Aguirre did not have authority to enter into the agreement, as argued by General Counsel. 3. The possibility of O'Reilly's implied agreement Although O'Reilly did not expressly agree to The Emporium's proposal about clerical employees, his implied agreement reasonably is inferred from the following: 1. As early as April 26, 1976, Paterson had heard rumors of a possible closure of SB-4. It is unlikely that O'Reilly did not learn of that rumor, from Paterson or others, in view of O'Reilly's plenary authority in Local 860. Further, O'Reilly testified that, during the negotiations, he heard rumors that Respondent may close the clerical section. 2. The question of the clericals was raised at three of the four negotiation sessions, and discussed at length during at least two of the sessions, yet at no time did O'Reilly, even 3 As does Paterson. 14 O'Reilly credibly testified that he is Respondent's chief executive oli cer. and that Aguirre does not have independent authority to enter into agreements during negotiations. by his own testimony, take an unequivocal stand against The Emporium's proposal. At the first session he told Steinberg to "knock it off" when Steinberg threatened eli- mination of jobs. At the second session Aguirre suggested giving a raise to the clericals and thereafter eliminating them, but O'Reilly only replied "knock it off, forget about that kind of talk." Steinberg and Krieger credibly testified that, at the third session, O'Reilly said Respondent did not want the clericals (from the outset of their incorporation into Local 860), and now they were The Emporium's prob- lem. O'Reilly did not deny that testimony. 3. Respondent contends that O'Reilly did not take seri- ously The Emporium's threat to eliminate the clerical jobs, since that is a common negotiating stance. That argument does not square with the facts. Paterson said Steinberg was "very upset" by the Union's demand for the clerical em- ployees at the first negotiating session. It is clear that the Steinberg-O'Reilly conversation en route to the airport was a serious one, involving no element of joking or bluffing. O'Reilly heard Aguirre state his position on the subject, and thus knew that at least one of his negotiators consid- ered The Emporium's threat to be a serious one. The sub- ject of the clericals was one that the parties discussed fre- quently, and seriously, over a long period of time, yet there is no indication that O'Reilly thought elimination of cleri- cal jobs was just a bluff. 4. The fact that the contract wage amounts for clericals are "red-circled" shows a side agreement of some sort, whatever that agreement may be. 5. Krieger's testimony, wherein he said O'Reilly called on the telephone August 16 and complained, not about elimination of clerical jobs, but about the timing thereof, was not denied by O'Reilly and is credited. 6. When O'Reilly talked with Steinberg on the telephone about the luncheon of August 20, he did not repudiate or disavow the statements made at the luncheon by Aguirre; he merely said he did not like agreements made in that manner. 7. Steinberg credibly testified, and O'Reilly did not deny, that the original date for elimination of clerical jobs was delayed, partially because of O'Reilly's objections to the timing, and at O'Reilly's request. 8. As more fully discussed infra, O'Reilly, Aguirre, and Paterson kept from the clerical employees the fact that their jobs might be eliminated. 9. O'Reilly and Paterson contend that they thought Steinberg was only bluffing about eliminating jobs of the clerical employees, and that they were very surprised and upset upon learning that Steinberg was serious. However, O'Reilly's treatment of the problem thereafter was less than vigorous. He met once with the clerical employees, at which meeting little, if anything, of a remedial nature was done. O'Reilly did not file a grievance under the contract until November 10, nor an unfair labor practice charge until November 18. 4. Respondent's failure to represent employees Although it is clear that O'Reilly, Paterson, and Aguirre were well aware of Steinberg's plan to eliminate clerical jobs if he had to agree to the 70-cent increases, on no occa- 850 TEAMSTERS WAREHOUSE UNION. LOCAL 860 sion was that danger communicated to the clerical employ- ees. Yet, all three union representatives knew that O'Reilly insisted upon those increases because of insistence by the clerical employees. Commonsense, as well as the require- ments of proper representation, required that at least one of the representatives fully advise the employees that their insistence was jeopardizing their jobs. Whether or not the employees would continue with the same demands if they knew of possible consequences is immaterial. Since the de- mand was theirs, it was incumbent upon Respondent to keep them advised and to leave to them the choice of re- trenching or standing firm. By allowing events to follow their course, and permitting the clericals to lose their jobs without knowing the weakness of their position, Respon- dent violated its fiduciary duty to its members. Respon- dent's motive in acting as it did, to which General Counsel devoted much of its brief, is immaterial. It is found, supra, that O'Reilly impliedly agreed to The Emporium's plan to eliminate jobs. However, that finding alone does not determine the issue. Even assuming, arguen- do, that O'Reilly did not so agree, Respondent's failure to advise the employees of dangers well known to Respon- dent, that their insistence was creating, which resulted in the loss of jobs, was a violation of Section 8(b)(l )(A) of the Act, as alleged by General Counsel. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section 111, above. occurring in connection with the operations of Respondent described in section I above, 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)( )(A) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. It is recognized that an 8(b)(2) violation is not alleged. It is further recognized that the record does not show a direct causal relationship between Respondent's 8(b)( 1 )(A) viola- tion and the loss of jobs suffered by clerical employees. Finally, there is no way to know whether, had they been given by Respondent the information they were entitled to, the clerical employees would have adopted an all-or-noth- ing bargaining position, although such is most unlikely and unnatural. Nonetheless, those employees were entitled to make their own decision, and they were deprived of that right by Respondent's knowledgeable silence. Under such Is Cf United Association (f[ Journernmen and 4ppreentices of the Plumbhrng and Pipe Fitting IndusirI of the U'nted States and C(anada, l.ocal Ir,.nn SNo 525, AFL CIO (Reynolds Electrical and Engineering ( a Inc J. 218 Nl R 451 (1975). circumstances, the employees' plight was Respondent's in- tentional creation, and equity demands that Respondent remedy that dereliction. Consequently, it will be recom- mended that Respondent make whole all SB-4 clerical em- ployees who lost their jobs on October 15, 1977, as a result of Respondent's unfair labor practices. CONCLUSIONS OF LAW 1. The Emporium is, and at all times material herein has been, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Warehouse Union, Local 860, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By failing fairly to represent warehouse clerical em- ployees as required by its collective-bargaining agreement with The Emporium, Respondent has engaged in unfair labor practices in violation of Section 8(b)( )(A) of the Act. 4. The unfair labor practices described in paragraph 3 next preceding are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Warehouse Union, Local 860, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, San Francisco, California, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Failing fairly to represent warehouse clerical em- ployees as required by its collective-bargaining agreement with The Emporium, in violation of Section 8(b)(l)(A) of the Act. (b) In any like or related manner restraining or coercing employees in exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Make whole all clerical employees discharged Octo- ber 15, 1976, at The Emporium's SB-4 warehouse in South San Francisco. California, for any loss of pay they suffered as a result of the unfair labor practices found herein, with interest computed thereon in the manner prescribed in F. U'. oolworth Conmpanv. 90 NLRB 289 (1950), and Florida Steel Corporation. 231 NLRB 651 (1977)." I* In the csent no exceptlons are filed as provided hy Sec 102 46 <of the Rules aind Regulatlins of the Naitional Lahbor Relations Board. the findings. conclusions, and recommended Order herein shall ais pros Ided in Se, 102 48 of the Rules and Regulations. he aIdopted bh the Boalrd and heconme its findings. conclusions, and Order. and all ohlecr ont. thereto .hil.l he deemed wai,,ed for all purposes ( See, generall. I.s. Pllhmthin & learlng (' ,i 138 N .RB 716 (1962) 851 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post in conspicuous places at its business office and meeting places, including all places where notices to its members customarily are posted, copies of the attached notice marked "Appendix." Bs Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 18 In the esent 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 L.abor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 20, for posting by The Em- porium, at all locations where notices to employees cus- tomarily are posted, if The Emporium is willing to do so. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 852