National Automobile and Casualty Insurance Co.

NATL. AUTOMOBILE AND CASUALTY 91 National Automobile and Casualty Insurance Co. and Service & Hospital Employees Union, Local 399, Service & Hospital Employees International Union, AFL-CIO. Case 21-CA-9873 September 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 29, 1971, Trial Examiner David E. Davis issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in cer- tain conduct in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and also that Respondent had not engaged in other conduct alleged to be violative of Section 8(a)(1) and (5), and recommending that the latter allegations be dis- missed. He further found that the General Counsel had not established a prima facie case of "surface" bargaining and recommended dismissal of that alle- gation. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Decision with a supporting brief, and Respondent filed an answering brief. Thereafter, on February 29, 1972, the National Labor Relations Board issued its order reopening the record and remanding the proceeding to the Regional Director, in which the Board, while holding in abey- ance its rulings on the other General Counsel's excep- tions, found merit in the General Counsel's exceptions to the Trial Examiner's finding that the evidence presented did not establish a prima facie case of bad-faith bargaining. The Trial Examiner found that Respondent committed a number of violations of Section 8(a)(1), including incidents both preceding and following the abortive negotiations, in which Respondent's supervisors offered employees, if they rejected or withheld their support from the Union, a wage increase larger than that offered to the Union during negotiations, and in one of which Respondent contrasted its rigid 10-cent increase bargaining stance with a larger increase which could be obtained if the Union were ousted. Consequently, the Board was of the opinion that in view of the 8(a)(1) violations which the Trial Examiner found and to which no exceptions were filed, the total factual context indicated by the testimony presented by the General Counsel rendered Respondent's intransigent economic position at the bargaining table sufficiently indicative of bad faith so as to establish a prima facie case of an 8(a)(5) viola- tion. Accordingly, the Board directed that a further hearing be held for the purpose of permitting Respon- dent to introduce certain evidence relevant to its de- fense against the allegation, and that upon the conclu- sion of the reopened hearing the Trial Examiner pre- pare a Supplemental Decision. Pursuant to a notice issued by the Regional Director, a further hearing was held where all parties appeared and were afforded full opportunity to litigate the subject of the remand. On June 1, 1972, the Trial Examiner issued his Supplemental Decision, finding that Respondent did not engage in bad-faith bargaining and recom- mending that the 8(a)(5) allegation be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Supplemental Decision and a supporting brief. Pursuant to the provision 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, the Trial Examiner's Decision, and the Supplemental Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions to the extent consistent herewith. With respect to the 8(a)(5) "surface" bargaining allegation,' the facts developed at the first hearing showed that Respondent, at least as to the economic issues, approached bargaining with no sincere desire to reach agreement. For example, the testimony indi- cated that Respondent's adamant position on wages was that the employees would get merely what they had been receiving in the past, and that Respondent refused to engage in any discussions with respect to health and welfare plans, holidays, vacations, sick leave, and a pension plan. Indeed, it was this intransi- gent position, especially when viewed in light of the other 8(a)(1) conduct to which no exceptions were filed, that served as the basis for our finding that a prima facie case had been established. Upon remand, however, Respondent elected not to offer any evi- dence in defense of the allegation.' Nevertheless, the Trial Examiner erroneously proceeded to reevaluate evidence which had been presented in the first hearing (and, obviously, which served as part of our finding i We agree with the Trial Examiner that Respondent engaged in threats, promises of benefits if the employees rejected the Union, and interrogation, all in violation of Sec 8(a)(I) of the Act In addition , while the Trial Examin- er found that Supervisor Oberto Madrigal questioned employee Eliza Mc- Knight as to how she voted in the election , he faded to conclude that such conduct was unlawful, In our opinion, the interrogation violated Sec 8(a)(I) of the Act, and we shall order Respondent to cease and desist therefrom. Furthermore , the Trial Examiner found that Respondent violated Sec . 8(a)(1) by threatening employees with discharge if they selected the Union, but inadvertently failed to provide a remedy for that violation in the Order, we shall order Respondent to cease and desist therefrom 2 While Respondent did present evidence that further negotiation sessions were held after the close of the earlier hearing, such evidence is irrelevant to the allegation made by the General Counsel that Respondent was bargaining in bad faith during the first four bargaining sessions Accordingly , we do not consider that evidence on the question of whether the General Counsel's prima facie case has been rebutted 199 NLRB No. 1 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a prima facie case) and still concluded that the "General Counsel has failed to sustain the required burden of proof with regard to the Section 8(a)(5) allegations of the complaint." In our opinion, the Trial Examiner has failed to attribute to the phrase `prima facie" its full legal in= port and, therefore, has reached an incorrect conclu- sion. Fundamentally, a prima facie case is one which is established by sufficient evidence and can be overcome only by a preponderance of competent, credible rebutting evidence. Thus, once the General Counsel establishes a prima facie case, the burden of going forward with the evidence shifts to the respon- dent. If respondent "fails to come forward with any evidence, but rests upon the record as made by the General Counsel here, General Counsel has sustained his burden of proof on this issue ...."3 In the present case, Respondent declined to offer any evidence whatsoever in defense of the allegation and we there- fore conclude that the General Counsel's prima facie case has not been rebutted. Under these circum- stances, we find that Respondent engaged in bad- faith bargaining in violation of Section 8(a)(5) and (1) of the Act, and we shall order Respondent to cease and desist therefrom and to bargain with the Union in good faith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Na- tional Automobile and Casualty Insurance Co., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening employees with discharge, with more arduous working conditions , or with smaller wage increases if they select or adhere to Service & Hospital Employees Union, Local 399, Service & Hospital Employees International Union, AFL-CIO, or any other labor organization, as their collective- bargaining representative. (b) Promising employees a 25-cent-per-hour wage increase if they reject the aforesaid labor organi- zation as their bargaining representative. (c) Interrogating employees concerning their un- ion sympathies. (d) Refusing to bargain with the aforesaid labor organization as the exclusive representative of its em- ployees in the following unit : All maintenance and custodial employees, elevator operators, maids, jani- tors, and waxers employed at Respondent's facility located at 639 South Spring Street, Los Angeles, Cali- fornia ; excluding all office clerical employees , profes- sional employees, guards, and supervisors as defined in the Act. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor unions, to join or assist the above-named Union or any other labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the above-named Union, as the exclusive representative of all employees in the unit set forth above and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its building in Los Angeles, California, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for a period of 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 Respondent to insure that said notices are not altered, defaced, 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 here- with. 3 Preston Products Company, Inc, 158 NLRB 322, 345. 4 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection. WE WILL NOT threaten you with discharge, NATL. AUTOMOBILE AND CASUALTY 93 with more and harder work, or with smaller wage increases because you choose Service & Hospital Employees Union, Local 399, Service & Hospital Employees International Union , AFL-CIO, or any other labor organization, as your collective- bargaining representative. WE WILL NOT promise you a 25-cent-per-hour wage increase on the condition that you reject or withdraw your support from the Union. WE WILL NOT ask you whether or not you are in favor of the Union. WE WILL NOT refuse to bargain in good faith with the above-named labor organization as the exclusive representative of our employees in the following unit: All maintenance and custodial employ- ees, elevator operators, maids, janitors, and waxers employed at Respondent's facility lo- cated at 639 South Spring Street, Los Angeles, California ; excluding all office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to form, join, or assist a labor organization of their choice or to refrain from any or all such activity. WE WILL bargain in good faith with the above-named Union on wages , hours, and condi- tions of employment , and any agreement we reach will be put in writing and signed. NATIONAL AUTOMOBILE AND CA- SUALTY INSURANCE CO (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. TRIAL EXAMINER'S SUPPLEMENTAL DECISION The Remand DAVID E. DAVIS, Trial Examiner: This case was con- ducted before me on August 3 and 4, 1971. At the conclu- sion of the General Counsel's case and upon motion of Respondent's counsel that the General Counsel had failed to make out a prima facie case on those allegations of the complaint which alleged that Respondent had failed to bar- gain in good faith or had engaged in surface bargaining, I ruled in favor of Respondent and dismissed the 8(a)(5) alle- gations of the complaint. I reaffirmed my oral ruling on this aspect of the case in my written Decision issued on October 29, 1971. Upon the General Counsel's exceptions to the Trial Examiner's Decision in which it was recommended that the 8(a)(5) allegations be dismissed, the National Labor Rela- tions Board reversed the Trial Examiner's ruling as de- scribed above. In reversing the Trial Examiner, the Board found "that the total factual context indicated by the testi- mony presented by the General Counsel thus renders Respondent's intransigent economic position at the bar- gaining table sufficiently indicative of bad faith so as to have established a prima facie t case of a Section 8(a)(5) violation." The Board therefore remanded the proceeding to the Trial Examiner for the taking of further evidence relating to the "surface" bargaining allegations. Pursuant to the Board's remand, a hearing was con- ducted before me at Los Angeles, California, on April 11, 1972. Counsel appearing in behalf of Respondent stated and then repeated under oath that since the close of the earlier hearing, August 24, 1971, bargaining sessions be- tween the parties have been conducted and are continuing to be held; that there has been compliance with all orders of the Board with respect to posting of notices and that there have been no acts since then in violation of the Act. The evidence thus adduced was uncontroverted. On cross-exam- ination, the General Counsel brought out that no collective- bargaining agreement has been consummated; that the last bargaining session was on March 2, 1972, and that at the time of the hearing no further meeting had been scheduled. With the conclusion of the foregoing recitation by counsel for Respondent, the parties rested and stated that they would submit written briefs. A comprehensive written brief has been received from counsel for Respondent while the General Counsel submitted a brief urging the Trial Examin- er to issue a Decision finding that Respondent was in viola- tion of Section 8(a)(5) of the Act. Upon the record in this case, including the evidence adduced at both hearings, the demeanor of witnesses and the briefs filed at the conclusion of both hearings, I make the following: Findings and Conclusions A. Preliminary Statement Clearly, I am bound by the Board's reversal of my ruling that the General Counsel failed to make out a prima facie case on the "surface" bargaining allegations of the complaint. Acknowledgement of error , however, is not an obligatory requirement . Nevertheless, it is now apparent to 1 Counsel for Respondent erroneously regards the italicizing here as dem- onstrating emphasis I regard the italicizing as routine where Latin phrases are employed. I have for this reason italicized the phrase, "prima facie" throughout 94' DECISIONS OF NATIONAL LABOR RELATIONS BOARD me that my ruling failed to attribute to the phrase `prima facie" its full technical and legal import . Accordingly, there remains as the sole issue whether or not the evidence viewed as a whole warrants a finding that Respondent failed to bargain in good faith by engaging in "surface" bargaining. B. The General Counsel 's Contentions In his brief submitted after the close of the remanded hearing, the General Counsel argues that inasmuch as a prima facie case has been established it was incumbent upon Respondent to present its evidence with respect to any de- fense thereto and that as no evidence was presented the record is devoid of any evidence detracting from the Gener- al Counsel's case. I do not agree . As will appear below, I find that Respondent did represent relevant evidence at the remanded hearing which bears upon the issues. I also find considerable evidence in the earlier hearing which tends to overcome the General Counsel's prima facie case. C. Respondent's Contentions In its brief submitted at the conclusion of the remanded hearing, Respondent reviewed the evidence adduced at the earlier hearing and calls attention to General Counsel's Ex- hibits 3, 5, 6, and 8. It is also argued that the bargaining sessions held in January and February, 1971, concerning which the Union's chief negotiator, Ruggerio, testified, es- tablished Respondent's good-faith approach and negated the inference of "surface" bargaining. It is further argued that the Union rather than Respondent exhibited bad faith in its bargaining approach because it failed to fulfill its promise to "check out" certain items discussed and did not bring up for further discussion matters upon which it had placed a "hold." Finally, Respondent calls attention to the fact that it was the Union , not Respondent, who walked out of the bargaining meeting on February 16, 1971. Respondent's beef, however, did not attempt to reply to the Board's findings with regard to Respondent 's intransigent economic position. D. Analysis and Conclusions It is readily apparent that Madden , Respondent's ne- gotiator, adopted a rigid stance, as the Board found, with regard to an increase in wage rates limited to 10 cents per hour. It is also true and I have found that the evidence established that Holbert, 3 weeks before the union election, promised employees a 25-cent wage increase if the employ- ees voted against the Union . I have also found that Madri- gal made similar statements to Washington in March, 1971. However, both Holbert and Madrigal are minor supervisors who did not participate nor had any influence on the bar- gaining process . Bozanich, the one supervisor who did par- ticipate in the bargaining session , made no such promises. In my earlier decision, I found that Bozanich did tell em- ployees that if the Union were selected, work requirements would be more severe. I did not then and do not now find that Bozanich knew or authorized Holbert and Madrigal to offer a 25-cent-per-hour increase if the Union was defeated. I, therefore, again find that Holbert's and Madrigal's state- ments do not reflect the correct or authorized position of Respondent with regard to collective bargaining. Without unduly lengthening this Decision , I find that Madden engaged in good -faith bargaining with a genuine intention to consummate an agreement . This is indicated by the many concessions, counteroffers and accommodations Madden made throughout the bargaining sessions. I am persuaded that Madden and Bozanich, while unwilling to offer more than a 10-cent wage increase , were not parties to, nor had knowledge of, a 25-cent wage offer to union defec- tors by Holbert and/or Madrigal. As they were the respon- sible negotiators for Respondent, I find that Respondent was not engaged in bad-faith bargaining or "surface" bar- gaining but did engage in hard bargaining designed to se- cure a labor agreement on terms favorable to Respondent. I believe the record demonstrates that Respondent did not procrastinate and consume bargaining time on frivolous and extraneous matters; that it continually made contribu- tions to the solution of problems; that it bargained in a meaningful manner on all items proposed by the Union; and that it submitted comprehensive and purposeful coun- teroffers. I conclude, therefore, that the General Counsel has failed to sustain the required burden of proof with re- gard to the Section 8(a)(5) allegations of the complaint. I therefore reiterate my recommendation to the Board that the 8(a)(5) allegations be dismissed. Accordingly, I re- affirm the "Conclusions of Law, the Order and Notice to Employees" set out in my original Decision.