Penasqultos Gardens, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1978

236 N.L.R.B. 994 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penasquitos Gardens, Inc.; Penasquitos Hills, Inc.;
San Diego Leisure Life Village; and Penasquitos
Village, Inc. and Laborers' International Union of
North America, Local No. 89, AFL-CIO. Case 21
CA-15904
June 16, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.O
On February 7, 1978, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and briefs and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge only to the extent consis-
tent herewith.
While not completely free from doubt, it would
appear that the Administrative Law Judge found that
Respondent violated Section 8(a)(5) and (1) of the
Act by dealing directly with its employees in deroga-
tion of the Union's status as the exclusive bargaining
representative of those employees. The Administra-
tive Law Judge also found that Respondent was not
required to execute the contract proffered by the
Union and dismissed that portion of the General
Counsel's complaint alleging that such refusal vio-
lated Section 8(a)(5) and (1) of the Act. For the rea-
sons stated, infra, we find merit in the exceptions
raised with respect to these findings.
Briefly, the salient facts are that, by letter dated
April 18, 1977,' the Union advised Respondent of its
desire to negotiate a collective-bargaining agreement
to succeed the one which was to expire on June 30.
After Respondent's attorney, Keiler, requested the
Union's proposals for a new contract and the
Union's attorney, Studer, complied with that request,
Keiler, by letter dated May 27, counterproposed that
the extant contract remain unchanged except for the
deletion of the cost-of-living clause and the substitu-
tion therefor of a 15-cent-per-hour raise effective on
July 1 of each year of the contract, which would be
effective from July 1, 1977, through June 30, 1980.
Studer rejected Respondent's counterproposals in his
Unless otherwise indicated. all dates refer to those in 1977
June I letter to Keiler.
On July 1, the first and only meeting between the
parties concerning a new contract took place at 10
a.m. in the Union's office. Present for the Union
were Studer and Field Representatives Stedry and
Sanchez.2 Keiler, Respondent's manager, Faurot,
and Alan Cohen, a one-third owner of California
Properties, which owns Respondent,3 represented
Respondent. After Keiler advised the Union that Re-
spondent's offer was that which was contained in his
May 27 letter, Studer rejected the offer and stated
that the parties were so far apart that further negotia-
tions did not seem possible, that impasse had been
reached, and that the Union would "probably see
[Respondent] on the picket line." The meeting then
ended.
Shortly after the meeting, Union Steward Cabrea
telephoned Sanchez and asked him to arrange a
meeting between Respondent and its employees.
Sanchez made the arrangements, but he did not at-
tend the meeting, which took place that afternoon at
Respondent's complex between representatives of
Respondent and 20 to 25 employees. At the meeting,
employee Velasquez, who had been designated as the
employees' spokesman by Cabrea, stated that the
employees wanted a 25-cent-per-hour raise, as well as
uniforms and weekly rather than biweekly pay-
checks.4 Both Cohen and Keiler told the employees
that Respondent could not negotiate with them be-
cause the Union was their bargaining agent. Cohen
did, however, comment on the employees' requests,
telling them that the 15-cent-per-hour offer which
had been made to the Union was the maximum
which Respondent could afford and that he would
check into the possibility of furnishing the employees
with uniforms and weekly paychecks. Finally, Cohen
told the employees that Respondent was still bar-
gaining with the Union and that "it was still open."
Respondent implemented its 15-cent wage increase
offer, but the employees were never given uniforms,
nor did they ever receive paychecks on a weekly ba-
sis. On July 5, the Union conducted a meeting of
Respondent's employees at which it recommended
that the employees accept Respondent's May 27 of-
fer. The employees followed the Union's recommen-
dation and, on July 6, Studer advised Keiler's office
2 Sanchez did not arrive until after the meeting had begun.
The Administrative Law Judge incorrectly listed Penasquitos. Inc.. as
the owner of Respondent, and we hereby correct that inadvertent error.
4 This was the first time that there had been any mention of uniforms for
the employees The topic had not been raised in any of the communications
between the parties. While a proposal for weekly paychecks had been in-
cluded among the proposals submitted by the Union in its May 20 letter to
Respondent. Respondent did not accept any of those proposals but, rather,
submitted to the Union its May 27 counterproposals, discussed above, and
the item was never again mentioned by either party prior to the acceptance
of those counterproposals by the employees on July 5, which is discussed
infra.
236 NLRB No. 123
994
PENASQUITOS GARDENS, INC.
that the employees had accepted the offer. A few
days later, Keiler telephoned Studer and told him
that the May 27 offer could not be accepted because
it previously had been rejected and was no longer on
the table.5 By letter dated July 20, Studer demanded
that Respondent execute the contract which Studer
had enclosed and which conformed to Respondent's
May 27 offer. 6 Keiler, by letter dated July 25, reaf-
firmed his earlier statement to Studer and advised
that Respondent would not execute the contract.
The Administrative Law Judge's apparent conclu-
sion that Respondent violated Section 8(a)(5) and (1)
of the Act by dealing directly with its employees at
the July I meeting was based on his findings that the
Union was neither notified of, nor present at, the
meeting. These findings, however, are in complete
disregard of the undisputed evidence that Union
Representative Sanchez, at Steward Cabrea's request,
arranged the meeting and that, while he did not at-
tend the meeting, Cabrea did. In light of this evi-
dence, we cannot agree with the Administrative Law
Judge that the Union neither knew of, nor was repre-
sented at, the July I meeting. The meeting was both
requested and sanctioned by the Union. Respondent
did not engage in direct dealings with the employees
by merely conducting the meeting which the Union
requested. Moreover, it is also undisputed that Re-
spondent advised the employees that it could not
bargain with them and that, while Respondent lis-
tened to what the employees had to say, no promises
were made, and none of the employees' requested
changes was effectuated. In these circumstances, we
conclude that Respondent has not dealt directly with
its employees in violation of Section 8(a)(5) and (1)
of the Act, and we shall dismiss this allegation of the
complaint. See Chevron Oil Company, Standard Oil
Company of Texas Division, 182 NLRB 445, 468
(1970); American Printing Company, 173 NLRB 73.
76 (1968).
The Administrative Law Judge refused to order
Respondent to execute the contract proffered by the
Union because the parties had not reached an agree-
ment regarding uniforms or weekly paychecks for the
employees. It appears to us, however, that neither of
these items was a subject of the negotiations at the
time of the acceptance of the offer. Thus, after in-
cluding a weekly paycheck proposal among the
others it submitted at the outset of negotiations, the
Union apparently abandoned it since, after Respon-
dent submitted its counterproposal, it was never rein-
troduced into the negotiations. It is undisputed that
5Respondent does not contend, and there is no evidence, that the offer
was withdrawn or that the offer lapsed because it was not accepted within a
stated definite penod of time.
6 There were no references to uniforms or weekly paycheckes.
there had never been a discussion in the negotiations
concerning employee uniforms and, further, that nei-
ther uniforms nor weekly paychecks were mentioned
during the parties' July I meeting. It is also clear that
what was presented to the employees on July 5 for
their acceptance or rejection was Respondent's May
27 offer, described above, which made no reference
to uniforms or weekly paychecks, and that it was this
offer that the employees accepted. Accordingly, we
conclude that neither employee uniforms nor weekly
paychecks were items still on the bargaining table
and unresolved as of the time of the Union's request
that Respondent sign the contract and that, there-
fore, the absence of an agreement on these items is
irrelevant to the issue of whether Respondent is re-
quired to sign the proffered contract.
Respondent contends that it is not required to sign
the contract submitted by the Union because, as its
May 27 offer had been twice rejected, there was no
offer outstanding when the employees chose to ac-
cept that offer on July 5.7 While Respondent's argu-
ment may be accepted as reciting good technical
contract law, both the Board and the courts have
made clear that the Board is not strictly bound by
the technical rules of contract law when it decides
whether, in the circumstances, the employer and the
union have arrived at an agreement which must be
reduced to writing and executed by the parties.8 In
the instant case, Respondent never withdrew its of-
fer, and, since there was no stated time within which
acceptance was required to be effectuated, it did not
lapse by its own terms. Moreover, there is evidence in
the record which indicates that the May 27 offer re-
mained open despite Respondent's arguments to the
contrary. In response to requests made by the em-
ployees on July 1, Cohen, one of Respondent's own-
ers, told them that Respondent was still bargaining
with the Union and that "[the offer] was still open."
In light of this evidence, the fact that the contract
offer ultimately accepted by the Union was the offer
made by Respondent, and the well-established prin-
ciple that the technical rules of contract law are not
necessarily controlling in cases arising under the Act,
especially in the area of collective bargaining, we
conclude that Respondent violated Section 8(a)(5)
and (I) of the Act by refusing to execute the contract
accepted by the Union on July 6.9 Accordingly, we
7Respondent does not contend that the acceptance varied from the offer
or that the proffered contract did not comport with the offer.
Ellis Tacke, d ,b a Ellis Tacke Compan.y, 229 NLRB 1296 (1977): Sum-
ner Home for the Aged. 226 NLRB 976 (1976).: N.L.R.B. v. Donkin's Inn,
Inc., 532 F.2d 138, 141 142 (C.A. 9, 1976); Lozano Enterprises v. NL.R B.,
327 F.2d 814. 818 (C.A. 9. 1964)
9 In light of our findings and conclusions regarding the uniforms and
weekly paychecks and Respondent's duty to sign the contract. we find it
unnecessary to rule on Respondent's exception to the Administrative Law
Continued
995
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have revised the recommended Order and have in-
cluded the appropriate Remedy, Conclusions of Law,
and notice to conform to our decision.
Upon the foregoing findings of fact and upon the
record as a whole, we make the following:
CONCLUSIONS OF LAW
I. Penasquitos Gardens, Inc.; Penasquitos Hills,
Inc.; San Diego Leisure Life Village; and Penasqui-
tos Village, Inc., collectively, is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Laborers' International Union of North Amer-
ica, Local No. 89, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All groundkeepers, operators, irrigators, general
maintenance men, mechanics, gardener, sprin-
kler men, painters, clean-up men, truckdrivers,
and machine operators employed by Respon-
dent; excluding office clerical employees and
guards, professional employees, and supervisors
as defined in the Act.
4. At all times material herein, the Union has been
the representative for purposes of collective bargain-
ing of a majority of the employees in the unit de-
scribed in paragraph 3, above, and, by virtue of Sec-
tion 9(a) of the Act, has been, and is now, the
exclusive representative of the employees in said unit
for the purpose of collective bargaining with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. By failing and refusing to sign the collective-
bargaining agreement embodying the terms of an
oral agreement reached on July 6, 1977, Respondent
has violated Section 8(a)(5) and (I) of the Act.
6. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
We have found that Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act by failing and refusing to
sign the collective-bargaining agreement embodying
the terms of an oral agreement reached on July 6,
1977, and, in order to effectuate the policies of the
Judge's finding that Respondent violated Sec. 8(a)(5) and (I) of the Act by
refusing to bargain with the Union after July I.
Act, we shall order that Respondent cease and desist
from engaging in such unlawful activity and that,
upon request, it sign said collective-bargaining agree-
ment forthwith. H. J. Heinz Company v. N.L.R.B.,
311 U.S. 514 (1941). In addition, we shall order that
Respondent give effect to the terms of said agree-
ment retroactive to July 1, 1977, as provided for in
the agreement, and we shall make employees whole
for any losses they may have suffered by reason of its
failure to execute and sign the aforesaid agreement,
with interest thereon to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).'°
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Pe-
nasquitos Gardens, Inc.; Penasquitos Hills, Inc.; San
Diego Leisure Life Village; and Penasquitos Village,
Inc., San Diego, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign a written contract embodying
terms of an oral agreement reached on July 6, 1977,
with the Laborers' International Union of North
America, Local No. 89, AFL-CIO.
(b) Failing and refusing to give effect to the terms
and provisions of the contract described in para-
graph l(a), above, from the date on which it was
agreed that the contract take effect.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, sign the collective-bargaining
agreement described in paragraph l(a), above.
(b) Give effect to the terms of the contract de-
scribed in paragraph l(a), above, retroactive to July
1, 1977, and make the employees whole for any losses
they may have suffered in consequence of its failure
to execute and sign said contract, with interest, as set
forth in the section herein entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
contracts, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this Or-
der.
(d) Post at its place of business at San Diego, Cali-
fornia, copies of the attached notice marked "Appen-
o See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
996
PENASQUITOS GARDENS, INC.
dix." iI Copies of said notice, on forms provided by
the Regional Director for Region 21, after being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
" 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 b' Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively re-
garding wages, hours, and other terms and con-
ditions of employment with Laborers' Interna-
tional Union of North America, Local No. 89,
AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All groundkeepers, operators, irrigators, gen-
eral maintenance men, mechanics, gardener,
sprinkler men, painters, clean-up men, truck-
drivers, and machine operators employed at
our San Diego, California complex; excluding
office clerical employees and guards, profes-
sional employees, and supervisors as defined
in the Act.
WE WILL NOT refuse to execute the contract
with the Union which was agreed upon on July
6, 1977, and was effective as of July 1, 1977.
WE WILL NOT fail and refuse to give effect to
the terms and provisions of the agreed-upon
contract with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, execute the contract
agreed upon on July 6, 1977, and WE WILL.. upon
request, give effect to the terms of that contract
from its effective date of July 1, 1977.
Wt wL.I. reimburse our employees covered by
the contract for any monetary losses they may
have suffered by our past refusal to sign the con-
tract, with interest.
PENASQUITOS GARDENS. INC.: PENASQUITOS
HWiL.S. INC.: SAN DIEGO LEISURE LIFE
VILLAGE; PENASQUITOS VILLAGE, INC
DECISION
STATEMENT OF THE CASE
BERNARD J SEFF. Administrative Law Judge: The charge
in the instant case was filed by Laborers' International
Union of North America. Local No. 89, AFL-CIO (herein-
after referred to as the Union) on July 29, 1977.' The com-
plaint was issued on September 15 by the Regional Direc-
tor for Region 21. The case came on for hearing before me
in San Diego, California, on December 8, 1977. The Gen-
eral Counsel alleges that the Union and Respondent
reached full agreement on a contract, on or about April 18,
but despite the Union's request for the Company to sign
the contract, it has refused to do so. By so doing, it is
alleged that Respondent has violated Section 8(a)(5) of the
Act. Respondent, in its answer, denies the commission of
any unfair labor practices, and raises a threshold question
concerning the Board's jurisdiction, which will be dis-
cussed infra.
Upon the entire record, and based upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondents are California corporations, each of which
is engaged in the business of operating apartment houses
adjoining the golf course in Rancho De Los Penasquitos, a
housing and country club developmentin San Diego, Califor-
nia.
Although the Respondent denied in its answer that it
was engaged in interstate commerce within the meaning of
the Act, in the course of the hearing, Respondent agreed
that it annually derives gross revenues in excess of
$500,000, but raised a question concerning its annual pur-
chase and receipt of goods and products valued in excess
of $10,000 directly from suppliers located outside the State
of California.
For the reasons which will be set forth in detail, infra, I
find that the Respondent has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Local
k All dates in this Decision refer to 1977 unless otherwise indicated
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 89, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act, and I so find.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondents have been wholly owned subsidiaries of Pe-
nasquitos, Inc., the labor relations policies of Respondents
have been commonly administered, and the affiliated busi-
ness enterprises have a common ownership, supervision, and
a common labor relations policy, and at all times material
herein constituted a single employer within the meaning of
Section 2(2) of the Act.
The manager of this entire project is Billy Faurot. The
president and owner of the apartment complex is Alan Co-
hen. Both Faurot and Cohen are supervisors within the
meaning of Section 2(11) of the Act, and an agent of Respon-
dent within the meaning of Section 2(2) and 2(13) of the Act,
and I so find.
Initially, on or about August 14, 1974, Respondent en-
tered into a successive collective-bargaining agreement ef-
fective from June 30, 1974, until June 30, 1977, with the
Union as the collective-bargaining representative of its em-
ployees in a unit of:
All groundskeepers, operators, irrigators, general
maintenance men, mechanics, gardeners, sprinkler
men, painters, cleanup men, truckdrivers, and ma-
chine operators employed by Respondents; excluding
office clerical employees, guards and supervisors as
defined in the Act, as amended.
The above-described unit is an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. Local No. 89 of the Union has
been a collective-bargaining agent of the employees in the
unit described supra, for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
The basic facts are substantially undisputed.
B. The Facts
After having received notice from the Union that it
wished to reopen the contract to renegotiate certain of its
provisions, the parties met for the first time, on or about
July 1. As his first witness the General Counsel examined
on direct examination Donald Studer, who is an attorney.
and who represented the Union through 1971, and from
1971 through August 1977 was its attorney. He no longer
represents the Union.
Studer testified that on or about April 18, the Union
opened negotiations by letter to Respondent, for a succes-
sor collective-bargaining agreement. The General Counsel
introduced into evidence, without opposition from Re-
spondent, General Counsel's Exhibit 3, which is a Xerox
copy of the initial collective-bargaining agreement execut-
ed by the parties.
After an exchange of letters, and a number of telephone
calls by Studer to Respondent's attorney, Joel Keiler, the
first face-to-face meeting took place on July 1. The meeting
took place in Studer's office, and Respondent was repre-
sented by Faurot and Keiler. In addition, Richard San-
chez, who was a field representative for Local 89, together
with an additional field representative by the name of Sted-
ry, were also present. The meeting began at 10 a.m. Studer
testified, without contradiction by Respondent's represen-
tatives, that the parties were so far apart that further nego-
tiations did not seem possible. This statement was made
because, among other things, the Employer indicated in his
reaction to the Union's proposal that it intended to sub-
contract the work covered by the collective-bargaining
agreement. Studer testified that the meeting took about 2
minutes. Studer further stated that Respondent's offer was
rejected, and that "we would probably see them on the
picket line." Prior to the reopening of negotiations, Studer
testified, there had been no discussion with Respondent
concerning being paid weekly instead of biweekly, and the
subject of uniforms had not been discussed at any time
prior to this meeting.
A few days after the initial meeting of July 1, Studer
testified that there was a meeting with approximately 20 or
25 of the Respondent's employees in the union hiring hall.
At this meeting, Ray Stedry, Richard Sanchez, and Studer
were present. Studer testified concerning Respondent's let-
ter of May 27, which has been received in evidence as Gen-
eral Counsel's Exhibit 6. This letter stated that:
It is our belief that the wages and fringe benefits in the
current contract are sufficient to retain or attract ca-
pable employees. Moreover, it would be less expen-
sive, now, for my client to subcontract the work. We,
therefore, propose that all articles remain unchanged
except for XIV and XX. Article XIV would be
changed to eliminate the cost-of-living clause and sub-
stitute 15¢ per hour raises as of July i, 1977; July I,
1978; and July 1, 1979. Article XX would be changed
to extend the contract through June 30, 1980.
Studer testified that the substance of the letter of May 27
was translated by Sanchez into Spanish, so that all the em-
ployees would understand the Company's position. Studer
then requested that they vote on the acceptance or rejec-
tion of the offer contained in that letter and recommended
to the employees that they accept the Company's offer,
which they did, and he further stated, he believed the ac-
ceptance was unanimous.
Studer then testified that he telephoned Keiler's office
and left word with his secretary that the employees had
accepted the offer contained in the May 27 letter. Several
days after Studer telephoned Keiler on May 27, Studer
spoke to Keiler, at which time Keiler said that Respondent
could not accept the contract. This conversation was by
telephone.
Furthermore, Studer testified that Keiler said that be-
cause the offer had been rejected, that it was no longer on
the table, and could not be accepted, although the Union
had never withdrawn it.
The letter sent by Keiler to Studer, dated July 25 and
received in evidence as General Counsel's Exhibit 9, states
as follows:
By letter of May 27, 1977, 1 made a counterproposal
998
PENASQUITOS GARDENS, INC.
to you. By letter of June I, 1977 you stated, "Your
counter-proposals are herewith rejected." On July 1,
1977, at a meeting in your office, you stated that we
were so far apart that it was a waste of time to talk any
further and that the Union was striking. [No strike
ever took place.]
Since our last proposal was rejected and since the
Union was striking, we put some of the terms of our
last offer into effect. At no time have we put into ef-
fect "weekly pay" or "uniforms." At the July 1, 1977
meeting with the employees, which the employees
asked for, we specifically told the employees that we
could not and would not bargain with them directly;
but could negotiate only with their Union. We also
told the employees that we could not offer them more
than we offered the Union and even explained why
that was an unfair labor practice.
As to withdrawing our offer, such a formal act is
unnecessary once you have rejected it. Further, you
rejected it not once, but twice.
We, therefore, are not executing the contract you
sent to me.
Later on the same day, July 1, a meeting took place at
the cabana which is located on Respondent's property. At
this meeting, 20 to 25 employees were present. Cohen and
Faurot were present for Respondent. The union represen-
tatives were neither present, nor were they notified that this
meeting would take place. Cohen told the employees that it
would be a violation of the Act if he bargained with the
men without their collective-bargaining representative
being present. Nevertheless Cohen agreed to increase wag-
es 15 cents per hour, which increase was put into effect as
of July 1, 1977. The employees' spokesman made two addi-
tional requests: (1) That the employees be paid every week
instead of every 15 days; (2) that Respondent provide its
employees with uniforms. Faurot said he would check with
the bookkeeper and that if it was okay with her it would be
okay with him to pay weekly; with respect to the question
of uniforms, Cohen said he would look into it. Approxi-
mately 3 days later, Faurot told Union Shop Steward
Cabrera that weekly pay was okay. No commitment was
made to provide the men with uniforms.
The accepted rule with respect to General Counsel's ar-
gument is that once agreement has been reached on all the
terms of a collective-bargaining agreement it is an unfair
labor practice and a violation of Section 8(a)(5) for either
party to refuse to sign such an agreement. But in the in-
stant case Respondent did not agree to provide its employ-
ees with uniforms. The matter of weekly instead of biweek-
ly pay seems to have been agreed to by Faurot.
There is nothing in the record to indicate that the facts
were in any way different from those testified to by both
the Union's representatives and the Respondent's represen-
tatives.
At this point in the proceedings, Respondent's counsel
reiterated his position taken earlier in the hearing that the
Board did not have jurisdiction over this case, because
while Respondent admitted it had a gross annual income
from rentals in excess of $500,000, it contended that it did
not have an inflow of $10,000 or more.
At this point I recessed the hearing and requested the
General Counsel and Respondent's counsel to discuss this
matter with me in chambers. The parties went back on
record. Once back on the record, Keiler stipulated that
although he could not give me a dollar figure for the
amount of the inflow the Company received in a calendar
year, it is more than de minimis. At this point I stated for
the record that based on the statement made by Respon-
dent, I found that the Company is engaged in commerce
within the meaning of the Act.
C. Respondent's Defenses
There are only two issues in this case as presented by
Respondent. One is the question concerning jurisdiction,
and the second point is a matter of contract law which was
made by Respondent. Respondent takes the position that
once the Union, through its counsel, Studer, rejected the
Company's counterproposal of May 27, there was no long-
er any offer on the table. Respondent's counsel stated that
according to basic contract law, at the time an offer is
made, if it is not accepted it dies. With respect to Keiler's
reliance on technical rules of contract law that once an
offer has been rejected. it cannot later be accepted, and
that therefore there "is nothing on the table," it is good
contract law, but that is not the law with respect to labor
disputes. The Ninth Circuit's decision in N.L.R.B. v.
Donkin's Inn, Inc., 532 F.2d 138, 141. 142 (1976), is disposi-
tive of this issue:
In the context of labor disputes, and particularly
Section 8(a)(5) violations, however, the technical ques-
tion of whether a contract was accepted in the tradi-
tional sense is perhaps less vital than it otherwise
would be. Rather, a more crucial inquiry is whether
the two sides have reached an "agreement," even
though that "agreement" might fall short of the tech-
nical requirements of an accepted contract.
The Board is not bound by the technical rules of contract law.
D. Concluding Findings and Analysis
It is clear that the Board has jurisdiction over this mat-
ter. Even the bald statement, that Respondent admits it
received sufficient products on the inflow basis from points
outside the State of California, more than "de minimis," is
sufficient to establish the Board's jurisdiction. 2 It should be
With respect to jurisdiction, attention is called to the case of Penasquiros
Village. Inc.. Penasquitos Gardens, Inc. Penasquiros Hills, Inc. and San Die-
go Leisure Life i Vlage. which is reported in Case 21 -CA-- 12632. which con-
sists of an opinion by the Ninth Circuit Co urt of Appeals filed on Nosem-
ber 30. 1977. and the underlying Board case cited at 217 NL RB 878. 882
(1975). No issue %as raised before the Adminislratise I.aw Judge in that
case involving the identical parties to the present proceeding ssth respect to
jurisdiction. The Administrative I.aw Judge found that
Respondent annually derives gross revenues in excess of 5500.000 and
purchases and receives goods and products valued in excess of $10.000
directl fromn suppliers located outside the State of California.
The Administrative L.aw Judge then found that
Respondent constitutes a single integrated business enterprise and a
single employer within the meaning of Section 2(2) of the Act and is
Continued
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted that Respondent raised no question about jurisdic-
tion in either the underlying Board case, which is reported
in 217 NLRB 878, nor did any issue concerning jurisdic-
tion come up with respect to this case which went up on
appeal to the Ninth Circuit Court. Obviously from the infor-
mation quoted supra, from the facts as they were developed
at the time of the hearing, there is no legitimate question
with respect to the fact that the Board clearly has jurisdic-
tion and asserted it without objection by Respondent in the
earlier case involving the same Respondent and the identi-
cal Union.
Much more significant than the technical question raised
by Respondent, whose good faith in raising this question
can be legitimately questioned, is the fact that it is not
denied on the record, nor did Respondent take the position
that it ever again bargained with the Union. From this fact,
standing alone, it is clear that Respondent has violated
Section 8(a)(5) of the Act. I so find.
There is a question as to whether or not, on July 1, with-
out notice to the Union, Respondent, through Cohen, at
Respondent's facility, engaged in direct bargaining with
the employees in the bargaining unit concerning terms and
conditions of employment different from those raised dur-
ing the negotiations with the Union. It is not clear from the
record whether or not Respondent did in fact change the
time of the payroll period from a biweekly to a weekly
period, nor is it equally clear that Respondent agreed to
provide the employees with uniforms, as the Union re-
quested in its meeting of July 1. These facts are alleged in
the complaint as a separate and additional violation of Sec-
tion 8(a)(5). Furthermore, the General Counsel argues that
Respondent and the Union reached complete agreement
on or about July 6, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment on a succeeding collective-bargaining agree-
ment. While the matters of uniforms and a change in the
pay period were discussed by the owner of the Company
and the unit employees in the meeting that took place on
July I among just the employees and Respondent, and
without the presence or notice to the Union, what occurred
at this meeting would appear to constitute an additional
violation of Section 8(a)(5). However, it does not seem
from the record that the parties reached specific agree-
ment with respect to the two additional items, in addition
to the granting of a 15-cent-per-hour increase. Because this
matter is not entirely free from doubt, I will recommend
that the parties bargain again upon request from the Union
and attempt to reach agreement as to these items. Under
these circumstances, it would not appear that it would be
fair on the record to order Respondent to sign the contract
which was discussed earlier on July 1, in attorney Studer's
office. It is not disputed that at the time of the early meet-
ing, with Studer representing the Union and acting as the
union spokesman, that the Company agreed to offer the
engaged in commerce within the meaning of Section 216) and (7) of the
Act.
employees a 15-cent-per-hour increase, which increase was
put into effect since July 1. In other words, Respondent,
when it put into effect the 15-cent-per-hour increase, was
not exceeding the offer it made to the Union in its earlier
meeting on July 1. Under all the circumstances described,
supra, it would appear that Respondent should be ordered
to bargain with the Union, upon request, as to the matters
concerning uniforms and a change in the payroll period. If
this matter is agreed to by the parties, there would then
appear to be no reason why the Respondent should not be
ordered to sign the agreement if full agreement is reached
at a subsequent meeting.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial 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.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Penasquitos Gardens, Inc.; Penasquitos Hills, Inc.,;
San Diego Leisure Life Village; and Penasquitos Village,
Inc., collectively, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Laborers' International Union of North America, Lo-
cal No. 89, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Billy Faurot and Alan Cohen are supervisors within
the meaning of Section 2(11) of the Act.
4. By refusing to meet with the Union, after July 1, 1977,
Respondent has clearly refused to bargain within the
meaning of Section 8(a)(5) of the Act. I so find.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
There is not any basis for ordering backpay because of
the fact that Respondent did put into effect as of July 1,
1977 a 15-cent-per-hour increase, which offer had been
made to the Union before negotiations were broken off.
In view of the nature of Respondent's unfair labor prac-
tice found herein, I shall recommend that Respondent
cease and desist from infringing, in any like or other man-
ner, on the rights of its employees guaranteed by Section 7
of the Act.
[Recommended Order omitted from publication.]
1000