Sun World, Inc.

SUN WORLD, INC. 785 Sun World, Inc. and Fresh Fruit & Vegetable Work- ers Local P-78-B, United Food and Commer- cial Workers International Union, AFL-CIO, CLC. Cases 21-CA-19904, 21-CA-20052, and 21-CA-201 10 21 January 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFF On 9 September 1986 Administrative Law Judge Michael D. Stevenson' issued the attached supple- mental decision. The Respondent filed exceptions and a supporting brief., The National Labor Relations ,Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, fmdings, I and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sun World, Inc., Thermal, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect.' Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). We' have carefully examined the record and ford no basis for reversing the findings. 2 In adopting the judge's decision, Chairman Dotson and Member Jo- hansen find it unnecessary to rely on his alternative finding that, even if the Respondent had unconditionally offered to reinstate the unfair labor practice strikers on 23 March 1982, effective in the fall of 1982, this offer was void as a matter of law They agree with the judge's primary fording that the Respondent did not make an unequivocal, specific, or uncondi- tional offer of reinstatement on 23 March 1982 . Member Cracraft agrees with the judge's primary and alternative findings. Joel B. Martinez, Esq., for the General Counsel. David E. Smith, Esq., of Palm Desert, California, and Jordan L. Bloom, Esq., of San Francisco, California, for the Respondent. Byron S. Georgiou, Esq., of San Diego, California, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. On 23 February 1982, Administrative Law Judge Russell L. Stevens issued his decision in the above-captioned case, fording that Respondent had violated Section 8(a)(5) and (1) of the Act by failing and refusing to bar- gain in good faith with the Union over any and all man- datory subjects of bargaining affecting the unit, including the terms and conditions for a collective-bargaining agreement to replace the one that expired 18 January 1981. The Administrative Law Judge also found that Re- spondent had violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate employees engaged in an unfair labor practice strike (strikers) against Respond- ent on their unconditional offer to return to work, by subsequently discharging the strikers, and by refusing to pay certain of Respondent's employees a retroactive wage increase for work performed on and after 2 Febru- ary 1981, On 29 June 1984, the Board affirmed Judge Stevens on all aspects of his decision that are relevant to the instant case (271 NLRB 49). The relevant portion of Judge Ste- vens' Order, adopted and affirmed by the Board, direct- ed Respondent to Offer immediate and full reinstatement to the indi- viduals listed in General Counsel's Exhibit 15 ... to their former jobs . . . discharging if necessary any replacements for these employees, and making said discharged employees whole for any loss of earnings they may have suffered, by payment to each of them the moneys which each of them would have earned during the period from' March 4, 1981 to the date of Respondent's offer of rein- statement .... Judge Stevens subsequently modified his Order by pro- viding that if the strikers had not been reinstated due to the seasonal nature of Respondent's business, then rein- statement was to occur immediately on resumption of Respondent's business. It should be noted that neither in Judge Stevens' deci- sion nor in the Board's Order was a list of names of the strikers specifically made. Rather, as noted above., the strikers were described as listed on General Counsel's Exhibit 15 . There is no present dispute about the identi- ties of the strikers. They are listed in the amendment to backpay specification and notice of hearing (G.C. Exh. 2g). I will list the strikers and the amounts found due and owing to them by Respondent in the Appendix to this decision. It should further be noted that there is no dispute about the formula used by the General Counsel to com- pute the amounts due and owing (stipulation of parties, Tr. 6-7). What is in dispute and what constitutes the single issue in this case is when Respondent effectively offered reinstatement to the employees in question for the purpose of tolling its backpay obligations. 1. CONTENTIONS , OF THE PARTIES Respondent contends that its backpay obligation ceased as of 23 March 19821 when its attorneys partici- i Unless otherwise specified, all dates refer to 1982. 282 NLRB No. 118 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pated in a luncheon meeting with the attorney for the Union. The General Counsel and the Charging Party Union contend that backpay continued until sometime after 17 October 1984 when Respondent sent individual letters to the strikers offering full reinstatement to them (C.P. Exh. 1). Because the backpay will differ by thou- sands of dollars depending on who is correct, I turn to examine carefully the evidence supporting each theory. II. THE FACTS All agree that a few days after Judge Stevens' opinion issued, Attorney David Smith, who at hearing both rep- resented Respondent and testified for it, contacted Attor- ney H. Ronald Domnitz, then representing the Union. Now a judge of the San Diego municipal court, Domnitz testified in rebuttal for the General Counsel. Smith and Domnitz agreed to meet for lunch at a San Diego restau- rant on 23 March. The third person to attend the lunch- eon meeting was Attorney Jordan L. Bloom, a manage- ment attorney with the San Francisco labor law firm of Littler, Mendelson, Fastiff & Tichy. Bloom had no prior nor significant subsequent involvement in this case. Rather he was retained for the sole purpose of attempt- ing to settle the case before the time for filing exceptions to Judge Stevens' opinion expired. As matters turned out, exceptions, were filed on 3 May, after two extensions of time for filing exceptions had expired. During the 60- to 90-minute lunch meeting, no notes were taken, no written proposals were made, and no sub- sequent written confirmations were exchanged between the parties. For these reasons, the passage of time, and possibly for other reasons as well, there are sharp differ- ences in testimony between Respondent's representatives and the Union's representative about what occurred. Moreover, the two Respondent representatives even con- tradicted each other on several key points. To detail this confusion and to resolve it, I turn to the record. According to Bloom, an experienced labor attorney, he met with Respondent's board of directors a few days prior to the luncheon meeting. The board gave Bloom certain unspecified directions and told him to attempt to settle the case. Bloom accepted the commission and he was then formally retained. At the restaurant, Bloom, presented a threefold proposal to Domnitz, each leg of which was allegedly independent of the other: A. Reinstatement of Striking Employees, as Ordered by Judge Stevens Bloom proposed that the strikers be reinstated some- time in the fall because the carrot season for which they had been employed was then winding down. Respondent felt it would be too disruptive to reinstate employees im- mediately, as replacement workers would have to be ter- minated. Although Bloom did not elaborate on 23 March concerning exactly when employees would return, he at- tempted to do so on cross-examination. He testified, "The fall of 1982 would be around September or Octo- ber. I did not specify, a date. Your definition of fall is as good as mine." (Tr. 39.) According to undisputed evidence, the carrot season in the area in question usually began in December and con- tinned through March or April. Thereafter, the corn season begins and some or all the strikers would be ex- pected to work on the picking and packing of corn through May. B. Payment of Backpay, a Question Raised by Domnitz All agree that no one at lunch knew exactly how much was due and owing to the strikers. Bloom suggest- ed that a lump sum be paid to union representatives, who would then decide the specific amounts to be paid the strikers. Domnitz thought this was a bad idea. Instead, he suggested that an arbitrator be retained to hear evi- dence concerning such matters as striker interim employ- ment, availability for employment, and other questions affecting striker obligations to mitigate damages. The parties did agree that the Union would select an arbitra- tor and Respondent would pay his expenses. Regarding the amount of money the arbitrator would be working with, Bloom was extremely vague to say the least. Bloom testified (Tr. 45): Only-only to the extent that $40,000 sticks in my mind and I honestly can't tell you why, but-if-in a very haphazard way, people were trying to figure out how many months so many people would have worked if they didn't have any interim employment and then assume that they might have had interim employment. But neither-neither Dave nor I knew that number. That's why we came up with this- this scheme of determining an amount and then let- ting an arbitrator decide how much each employee gets. That way the-both Company and the Union would be off the hook. [Tr. 45.] Bloom admitted that he had not been authorized by the board of directors to agree to any specific amount of backpay because no one knew how much it would be (Tr. 46). Bloom thought someone mentioned $40,000 but he could not recall who. The amount of money deter- mined by the arbitrator to be due and owing would be subject to approval by the board of directors (Tr. 59). All the above testimony left the question of whether the arbitrator would be working from a predetermined maximum sum to be approved by the board of directors sometime in the future, or whether the arbitrator would be working without a preset cap and simply award em- ployees backpay as found appropriate, again subject to approval by the board in the future. Here is exactly how Bloom "clarified" this point (Tr. 63): Okay. From a business standpoint obviously there's a certain amount of money to be spent. Okay? Now the lump sum as you phrase it,, would be something in between those two alternatives. Because obvious- ly the Company has to determine how much money it's going to have to spend. And an arbitrator is going to determine how that money is going to be divided. A business decision needs to , be made as to whether it's worth the risk of an appeal, whether SUN WORLD, INC. 787 the likelihood of success and as can be demonstrat- ed by this hearing, whether it's worth the risk of another two years of liability. And so that is why the first part of this subject, that is the offer of rein- statement, to these people for the Fall of 1982 was made. Not conditioned on the second- [Tr. 63.] Because the answer quoted above was not responsive, Bloom was questioned further on cross-examination by Attorney Georgiou (Tr. 64-65): Q. But you're not suggesting are you, that the Company was prepared to authorize a blank check to this arbitrator? That is, that the Company would agree to be bound by whatever determination the arbitrator made as to the sums due each employee and the-obviously the sum-the total sum with re- spect to all of the employees? That certainly wouldn't comport to your business decision- A. Well, no. To the extent you use the phrase blank check. No, I don't think any company would write a blank check but within certain parameters uh, the Company need-this Company needed to make that determination as to whether the offer should be made. Q. Okay. Entirely reasonable and I agree with you there. Now, the question is, what parameters if any, were established at that time, if you recall. Or if they were established at that time. A. No parameters were established at that time because we did not know-we didn't have-not have the basis upon which to suggest realistic or meaningful parameters. [Tr. 64-65.] At the proper time, I also attempted to clarify what Bloom claims he offered to Domnitz on 23 March. For example, I did ascertain that the arbitration would be binding (Tr. 72), that the $40,000 figure, referred to above, was only a "ball-park" figure and the real sum owed by Respondent in backpay may have been double or half that (Tr. 75-76), and that, regarding the question of who would ascertain the relevant information regard- ing mitigation of employees' damages, either the arbitra- tor or a company representative, Bloom replied that "someone" would have to do this (Tr. 75). C. Commencement of Good-Faith Bargaining on a New Collective-Bargaining Agreement All witnesses agreed that no one at lunch was author- ized to negotiate for his respective client, but that negoti- ations would occur in'the near future. In fact,,negotia- tions did begin after the Board's decision, and have con- tinued, but agreement has not been reached. All witnesses also agree that Smith raised the question of the Union withdrawing its charges as part of a settle- ment agreement. Domnitz said this might be difficult at that stage of the proceedings because the Board would be reluctant to permit this. Withdrawal of charges re- mained an open question. At the conclusion of the lunch, according to Bloom, Domnitz remarked favorably on Respondent's "offer" and indicated he would recommend approval to his client. Thereafter, Bloom ceased involvement in the case. _„ Respondent's second witness was Attorney David Smith. To question him, Bloom filed an appearance. Smith began his testimony by stating that he had heard Bloom's testimony on direct examination and cross-exam- ination concerning the 23 March meeting and that his recollection was the same as Bloom's (Tr. 85). In fact, Smith's recollection differed significantly from Bloom's. For example, Smith characterized the 23 March meet- ing as merely an attempt "to reach a framework for set- tlement" (Tr. 122). Also, Smith did not recall anyone mentioning the sum of $40,000 at that meeting (Tr. 122). Finally, Smith testified to an agreement reached with Domnitz at the end of the 23 March lunch to have Smith meet subsequently with then Union Business Agent Mi- chael Lyons for the purpose of negotiating the lump-sum amount to be paid into a trust account. According to Smith, this amount would then be divided up by the ar- bitrator between the competing claims of the strikers. If not sufficient to pay 100-percent backpay found to be due and owing, then it would be divided up on a pro rata basis. In his testimony, Bloom made no reference to an agreement for subsequent meetings. Bloom and Smith did agree, however, that regarding reinstatement, the strikers were to return in the "fall." Concerning the meetings between Smith and Lyons, all agree that three occurred. Beginning in early April and continuing during that month with a few days inter- vening between each, the meetings concerned only the backpay. Smith first offered $30,000, which was rejected by Lyons. Prior to another meeting, Smith was author- ized to and did in fact offer $40,000. This too was reject- ed by Lyons as inadequate. In his testimony, Lyons agreed with Smith on most matters. There was some disagreement about the exact amounts offered, what was said, and the alleged exist- ence of union politics. None of this is relevant or materi- al, however, so I turn now to the testimony of Union Representative Domnitz. Domnitz denied that Bloom had presented a bona fide offer on either reinstatement, backpay, or good-faith bar- gaining. To the extent that Bloom made any concrete proposals, they were all, according to Domnitz, part of a "package deal." Domnitz agreed with Bloom about the suggested procedure for an arbitrator to handle backpay and that someone mentioned a $40,000 figure during lunch. Concerning reinstatement, Domnitz testified to the fol- lowing (Tr. 146-147): When we talked about reinstatement as a part and parcel of the package, I'm sure that that subject was broached. [Reinstatement in the fall rather than immediately.] I've heard that and I'm sure it came from Mr. Bloom or Mr. Smith and my recollection is they asked me whether or not that would be a problem. I told them I didn't know but I was hope- ful that we could negotiate a full settlement. After the 23 March meeting had terminated, Domnitz called Lyons to tell him what had occurred. Domnitz then wrote a letter about the meeting. For reasons that 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are not important to this case, Lyons asked Domnitz to write the letter to a person named Adelaida Romero with a copy to Lyons. The letter reads as follows (G.C. Exh. 3): March 23, 1982 Ms. Adelaida Romero P.O. Box 808 Coachella, CA 92236 Re: Sun World Dear Ms. Romero: Sun World representatives met with me today in an effort to determine whether or not the Sun World situation could be settled. I told them that we would listen to any of their proposals. Basically, after much discussion the following parameters have been set: 1. Negotiate a new collective bargaining agree- ment for a time period less than three years. 2. Reinstate all striking employees with full se- niority. 3. Settle the outstanding grievance regarding the discharge of Maria Castillo with reinstatement. 4. Arrive at a lump sum figure to be paid by the company for back wages not taking into consider- ation interim earnings, strike benefits and unemploy- ment benefits. This sum would be placed in a trust account and divided among the employees pursuant to a decision of a neutral arbitrator, with the Union and the Company remaining neutral. If we have a chance to settle this case, it must be within the next two weeks since the briefs on appeal are due relatively soon. If this case is not settled, it will drag on for at least three years since it will wind its way into the Ninth Circuit Court of Ap- peals. Please take the existing Sun World contract and send me your demands. Since this contract will be for less than the normal three year period of time, we will not be able to change much of the language but should concern ourselves with the economics. Please respond as quickly as possible. ' Very truly yours, H. Ronald Domnitz Subsequent to writing the above letter, Smith and Lyons participated in the three meetings referred to above and Domnitz, like Bloom, did not play a significant role in later events. Ill. ANALYSIS AND CONCLUSIONS2 I begin with relevant legal principles. "In backpay proceedings, the initial burden is on the General Counsel 2 Both Bloom and Smith acted both as advocates and witnesses in this case. Attorneys having a dual role in the same case have been criticized by the Federal courts. U.S. v. Johnston, 690 F.24t 638, 642 (7th Cir 1982). Rosen v. NLRB, 735 F.2d 564, 569-570 (D.C Cir. 1984). However, the Board has taken the position that it should not have to police attorney ethics. Airports Service Lines, 231 NLRB 1272, 1279 (1977), enfd. 589 F.2d to establish a respondent's gross backpay liability. Once the gross backpay liability is established, the burden then shifts to respondent, who must prove the amount by which the gross backpay should be diminished. Any un- certainties in the record regarding deductions from the gross backpay figure are to be resolved against respond- ent, because . . . it is the backpay claimant, rather than the wrongdoer, who is to receive the benefit of any doubt regarding such deductions."3 In this case, Respondent stipulated to the backpay for- mula and presented no evidence that the computations were erroneous. Accordingly, I find these matters are not contested. Furthermore, concerning Respondent's claim that on 23 March it presented an effective offer to reinstate strik- ers, I find that Respondent has the burden of proof on this issue, and that Respondent has failed to present suffi- cient credible evidence to meet its burden. There was no effective offer to reinstate strikers because I do not credit Respondent's witnesses, except to the extent their testi- mony is consistent with that provided by Domnitz. The basis for this credibility finding is the vague and contra- dictory nature of Respondent's witnesses, particularly Bloom. Moreover, the contention that experienced labor lawyers such as Bloom and Smith would attempt to make an oral unconditional offer to reinstate strikers and then fail to confirm the alleged offer in writing is too absurd to deserve further comment. In this respect, I contrast Smith's letter of October 1984 properly making an unconditional offer of reinstatement to strikers (C.P. Exh. 1) with the alleged oral offer that occurred on 23 March. The contrast is striking. I also note Domnitz' written letter to union officials giving his view of what occurred. Nowhere in that letter does it state that Re- spondent offered unconditionally to reinstate strikers in the fali:4 In sum based on this critical credibility finding, I fund. no convincing evidence that' Respondent made an unequivocal,, specific, and unconditional offer to reinstate strikers.5 However, even if I were to credit Bloom's testimony that he made an offer of reinstatement for the "fall," while replacement workers continued to finish the carrot season, and the corn season had not yet begun, this offer did not comport with the Order of Judge Stevens and was otherwise ineffective as a matter of law. Assuming also, for the sake of argument, that Bloom's offer was in- dependent of the two other issues involving settlement of backpay and good-faith negotiations on the new con- tract, Respondent would have had to offer immediate re- instatement to the strikers so long as there was work to 1115 (D.C. Cir. 1978). Accordingly, I note only for the record the dual role played by Bloom and Smith. 2 Eartgate IGA Foodliner, 253 NLRB 735, 736 (1980) See also The Mandarin v NLRB, 621 F,2d 336, 337 (9th Cir. 1980), and NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir 1963). 4 If an otherwise valid offer had been made, the mere fact that it was conveyed to Domnitz rather than to the discriminatees personally'would not necessarily be fatal. O.K. Machine & Tool Corp., 279 NLRB 474, 478 (1986); Reeves Rubber, 252 NLRB 134 fn. 2 (1980). 5 See Seligman & Associates, 273 NLRB 1216, 1217 ( 1984); Tri-State Truck Service, 241 NLRB 225 (1979), enf. denied on other grounds 616 F.2d 65 (3d Cir. 1980); Brooks Inc., 228 NLRB 1365, 1368 (1977); John Cuneo, Inc. v. NLRB, 792 F.2d 1181, 1183 (D.C. Cir 1986). SUN WORLD, INC. be done.6 In the present case, even under Respondent's' theory, there was work for the strikers to do as of 23 March, and the offer was therefore void as a matter of law. Because Respondent's "offer" was legally inad- equate without regard to conflicting evidence, Domnitz was under no duty to relay it to the discriminatees and the discriminatees had no duty to respond. In conclusion nothing that Bloom testified he said on 23 March at lunch tolled Respondent's backpay.7 ORDER Respondent, Sun World, Inc., Thermal, California, its officers, agents, successors, and assigns, shall make the persons listed in the Appendix to this decision whole for wages and benefits lost, and expenses incurred, in ac- cordance with the Board Order by paying to the persons listed in the Appendix the net backpay indicated for them, together with interest computed thereon in the manner prescribed in the Board's Order, published at 271 NLRB 49, making the appropriate deductions from the amounts of any tax withholding required by state and Federal laws. 6 Compare NLRB v. United Contractors, 614 F.2d 134, 138 (7th Cir. 1980), in which respondent claimed its work was , seasonal. The court held that the extent to which this was so was unclear. In remanding the case to the Board for clarification of this point, the court held- [Aln employer may, without incurring backpay liability, refrain from reinstating a discrimmatoraly discharged employee during a period when employment would not have been available for him even absent the discrimination [NLRB Y. Sterling Furniture Co., 227 F.2d 521, 522 (9th Car. 1955).] 7 W. C. McQuaide Inc., 239 NLRB 671 (1978), enfd. 617 F.2d 349 (3d Car 1980). APPENDIX Aceves, Maria de Jesus $14,810.70 Alvarado, Eduvijes 14,096.90 Alvarez, Blanca 14,407.83 Cabrera, Guadalupe 23,109.50 Camacho, Esperanza 5,241.09 Campos, Jesus 27,042.60 Carrasco, Julio 29,677.21 Castillo, Aurora 17,275.19 Castillo, Maria E. 8,254.74 Castro, Emigdia 9,571.23 Contreras, Guadalupe 4,972.97 Diaz, Dominguez 9,349.17 Diaz, Raul Chavez 29,677.21 Dominguez, Alma 4,680.49 789 Encinas,-Miguel 899.74 Estrada, Belen 17,831.14 Fajardo, Guillermina 17,831.14 Fernandez, Rosa 15, 874.49 Fletez, Celia 17,701.77 Gallegos, Angelina 12,061.76 Gallegos, Consuelo 15,146.95 Garcia, Maria del Carmen 11,379.79 Garcia, Eduvijes F. 6,633.75 Garcia, Maria Elena 11,980.92 Garcia, Olivia 3,215.69 Garza, Socorro 12,265.20 Gonzalez, Avelina 5,341.58 Gonzalez, Maria de 6,998.23 Gonzalez, Martha 3,875.62 Guzman, Sara 17,831.14 Hernandez, Diego 25,720.15 Hernandez, Donna S. 17,831.14 Hernandez, Maria L. 12,126.00 Hernandez, 'San , Juana 13,323.93 Juarez, Teresita Angulo 3,230.11 Lerma, Gloria E. 8,144.01 Lopez, Maria L. 17,831.14 Mejia, Virginia 3,519.41 Mejorado, Maria N. 17,831.14 Melendez, Guadalupe 17,376.87 Mendoza, Roberto 29,671'.21 Navarette, Dolores 15,53].29 Navarette, Maria Luz 6,641.34 Ochoa,. Bartola 16, 332.73 Pineda, Elida 12,324.76 Pineda, Felicitas 17,474.56 Preciado, Maria de Jesus 9,447.21 Ramirez, Francisca 7,727.38 Ramirez, Rachel 17,414.22 Razo, Agripina 9,579.97 Rodriguez, Martha 17,831.14 Rodriguez, Pascal 29,677.21 Salazar, Imelda 11,196.42 Sanchez, Antonia 13,745.22 Sanchez, Regino 29,655.09 Vasquez, Jorge 29,777.21 Williams, Maria R. 13,102.97 Zamorez, Maria C. 10,829.98