N.L.R.B. v. Carilli
| Decision Date | 22 June 1981 |
| Docket Number | No. 80-7070,80-7070 |
| Citation | 648 F.2d 1206 |
| Parties | 107 L.R.R.M. (BNA) 2961, 91 Lab.Cas. P 12,834 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Antonino CARILLI, d/b/a Antonino's Restaurant, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen McKae, Moore, Sizoo & Cantwell, Oakland, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before MERRILL and SCHROEDER, Circuit Judges, and EAST, * District Judge.
The National Labor Relations Board (Board) petitions for enforcement of its order against Antonino Carilli, d/b/a Antonino's Restaurant (Antonino's). The Board found that Antonino's engaged in unfair labor practices in violation of Section 8(a)(1) 1 of the National Labor Relations Act (Act) by interrogating an employee about her Union 2 membership, suggesting that employees withdraw or resign from the Union, implying to employees that it would be futile to join or support the Union, and by unilaterally implementing a new medical and dental insurance program in order to discourage Union membership.
The Board also found that Antonino's had violated Sections 8(a)(1) and 8(a)(5) 3 of the Act by withdrawing recognition from the Union, refusing to negotiate, and unilaterally terminating certain payments to the employees' health and pension trust funds. The Board's order essentially directs Antonino's to cease and desist from committing these and other unfair labor practices, to bargain with the Union upon request, and to pay delinquent contributions to the employees' trust funds.
We note jurisdiction pursuant to Section 10(e) 4 of the Act, and grant enforcement.
Antonino Carilli and his wife, Jean, operate Antonino's Restaurant in Hayward, California. The Carillis' two sons, Larry and Tom, work respectively as assistant manager and chef. It is admitted that all of the Carilli family are supervisors within the meaning of Section 2(11) 5 of the Act, even though Larry and Tom Carilli were represented by the Union.
Antonino's first recognized the Union in 1972. Thereafter, Antonino's joined a multi-employer bargaining group, the East Bay Restaurant Association (Association), and subsequently became a party to a 1973-1978 collective bargaining agreement. That agreement had an expiration date of August 6, 1978, subject to timely notice of termination, and contained a provision for reopening for wage negotiations. The agreement also included provisions for employer contributions into separate, jointly-administered trust funds for the administration of programs providing health and pension benefits to covered employees. Antonino's abided by the contract's terms and contributed to the trust funds during the duration of the 1973-1978 contract.
In the spring of 1977, Antonino's gave timely notice to the Association that it was restricting the Association's authority to bargain on its behalf and that no changes or extensions to the contract were to be negotiated which would bind Antonino's beyond the August 6, 1978 termination date. The Association gave written notice to the Union of Antonino's action and thereafter negotiated a four-year extension of the 1973-1978 agreement, with various modifications concerning wages and benefits.
In June of 1978, Antonino's wrote the Union that it would terminate the collective bargaining agreement when it expired in August of 1978. The Union, apparently operating under the misconception that Antonino's was bound by the four-year extension of the 1973-1978 collective bargaining agreement, rejected Antonino's notice of termination as "untimely and unacceptable."
Prior to this exchange, the Carillis had engaged in some conversations with employees generally concerning the importance of insurance benefits and their relation to Union membership. Antonino's then contacted several insurance brokers concerning the purchase of medical and dental insurance programs for the employees to replace the existing Union-Association program upon expiration of Antonino's contract with the Union. On July 25, 1978, Antonino's authorized an insurance broker to purchase a medical and dental insurance program underwritten by Crown Life Insurance Company which would be effective August 6, 1978. Antonino's also arranged for the insurance broker to meet with the employees and explain the new insurance coverage.
When the collective bargaining agreement expired on August 6, 1978, Antonino's ceased making contributions into the health and pension trust funds. On August 11, 1978, employee Paul Dana Washburn prepared a handwritten decertification showing of interest petition and began circulating it. Over the next two days, Washburn collected 16 signatures on his petition, the last two of which were those of Larry and Tom Carilli. Washburn filed this petition with the Board on August 17, 1978.
On the morning of August 15, 1978, the insurance broker and Larry Carilli met with approximately 15 to 20 employees at the restaurant. Carilli announced to the employees that the restaurant's contract with the Union had terminated and that the restaurant was then "nonunion." He also stated that the employees could leave Antonino's to work in a Union restaurant if they desired but he wanted all employees to stay on. Carilli also answered some questions generally concerning the employees' future status with the Union. The insurance broker distributed a document comparing insurance benefits under the Crown Life program with those under the 1973-1978 collective bargaining agreement, announced that the employees were covered by the Crown Life program, effective August 6, and told the employees that the new plan provided better benefits than the previous plan.
On August 28, 1978, however, the Union filed an unfair labor practice charge, alleging that Antonino's was refusing to bargain in good faith and that Antonino's was bound by the 1977-1982 extension to the collective bargaining agreement. The Board's regional director refused to issue a complaint on any aspect of the charge except the allegations concerning the unilateral implementation of the new health insurance plan, and rejected the Union's allegation that Antonino's was bound by the 1977-1982 agreement on the grounds that Antonino's had submitted a timely notification limiting the Association's bargaining authority on its behalf.
The Regional Director subsequently dismissed the decertification petition, ruling that no question of representation could be raised at that time because a complaint had issued against Antonino's charging that the unilateral replacement of the insurance programs violated Section 8(a)(5).
Over the next three months, the parties exchanged a number of letters and phone calls in which they discussed negotiating for a new contract. On the basis of these communications, the administrative law judge found that Antonino's had refused to engage in collective bargaining with the Union.
In January of 1979, the regional director notified the parties that the dismissal of the decertification petition had been rescinded. Shortly thereafter, however, the Union filed a second unfair labor practice charge and again demanded that Antonino's negotiate.
The regional director then notified the parties that the initial decertification petition was tainted by the participation of Antonino's supervisors in the signing of the petition, and that in light of the "numerous and serious" unfair labor practices allegedly committed by Antonino's just prior to the filing of the petition, no question of representation could be raised at that time. The Board affirmed.
The two unfair labor practice charges were consolidated and came to a hearing which resulted in the order which the Board now seeks to enforce.
Initially we must examine Antonino's contention that the complaint is insufficient and should be dismissed because it does not contain a clear and concise statement of the facts constituting the alleged unfair labor practices, as required by 29 C.F.R. § 102.12(d).
The record discloses that the Union filed two charges, on August 25, 1978 and January 15, 1979. Both charges alleged that Antonino's violated Sections 8(a) (1) and 8(a)(5) of the Act, and both specifically allege that during the six months immediately prior to the filing of the charge, Antonino's refused to bargain in good faith with the Union. The charges each stated that "(b)y the above and other acts," Antonino's interfered with, restrained, and coerced employees in their exercise of their Section 7 rights. 6
Actions before the Board are not subject to the technical pleading requirements of a private lawsuit. North American Rockwell Corp. v. NLRB, 389 F.2d 866, 870 (10th Cir. 1968). The charge need not be technically precise so long as it generally informs the party charged of the nature of the alleged violations, and the general allegations in the charge may later be supplemented or amplified by more specific allegations which "relate back" to the date the charge was filed.
The consolidated complaint in this matter, filed on February 28, 1979, contained specific allegations as to each unfair labor practice found by the Board. Thus Antonino's cannot successfully contend that it had no notice of the charges against it before the hearing. Moreover, the Board may find an unfair labor practice when the issue has been fully and fairly litigated even though no specific charge was made in the original complaint. Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 728 (9th Cir. 1980); NLRB v. Olympic Medical Corp., 608 F.2d 762, 763 (9th Cir. 1979). Here, Antonino's claims that it was prejudiced because the General Counsel's witnesses had incomplete memories concerning a statement by Larry Carilli at the August 15,...
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