Appearances:

DECISION OF THE ADMINISTRATIVE LAW JUDGE

STATEMENT OF THE CASE

Nancy C. Smith, Administrative Law Judge: This case was heard by me from February 14, 2002, through February 22, 2002, in Oxnard, California. It arises from ten charges (00-CE-332-EC(OX); 00-CE-333-EC(OX); 00-CE-342-EC(OX);

00-CE-343-EC(OX); 00-CE-344-EC(OX); 00-CE-373-EC(OX); 01-CE-6-EC(OX; 01-CE-10-EC(OX); 01-CE-66-EC(OX); and 01-EC-68-EC(OX)) filed by the United Farm Workers of America, AFL-CIO (hereinafter the "UFW" or "Union") between September 13, 2000, and March 1, 2001. The General Counsel issued a complaint based on those charges on June 26, 2001. Respondent Pictsweet Mushroom Farms (hereafter Pictsweet or PMF) filed its answer to the complaint on July 5, 2001.

The complaint charges Respondent with violations of sections 1153 (e) and (a) of the Agricultural Labor Relations Act (ALRA or Act, Labor Code sec. 1140 et seq.)

by (1) failing to give notice to and bargain with the UFW before the layoffs of

September 5, 2000, and before various other layoffs/ reductions of hours between September 5, 2000 and March 1, 2001; (2) failing to give a periodic increase in wages to its pickers in 2000[1]; (3) failing to provide information requested during bargaining related to Respondent's profit sharing plan; and (4) failing to recall employees according to classification seniority as agreed upon by respondent and the UFW on September 25, 2000. Respondent is also charged with a violation of section 1153(a) by its direct communications to bargaining unit employees between April 2000 and January 12, 2001, and by virtue of the policy set forth in its Employee Handbook which states a preference for dealing directly with its employees, all of which the General Counsel contends undermined the UFW as the exclusive bargaining representative of Respondent's agricultural employees. Lastly, Respondent is charged with a violation of sections 1153 (c) and (a) by conditioning the transfer of irrigator Solomon Martinez to the maintenance crew upon his signing of a petition to decertify the UFW.

Respondent denies that it violated the Act in any respect. Specifically, Respondent contends that any layoffs and/or reduction of hours were privileged as a response to a UFW-initiated boycott of Respondent's products by Vons and Ralphs grocery stores, and/or that the Charging Party waived its right to bargain about the layoffs and reduction of hours due to its past conduct and its failure to request bargaining in a timely manner; and/or that the layoffs and any reduction of hours were justified by business necessity/exigent circumstances. Respondent further contends that its obligation to bargain with the UFW was excused by the UFW's conduct and that the UFW has unclean hands.[2] PMF also asserts that its communications to employees were protected by Respondent's right to free expression as set forth in section 1155 of the Act; that its pickers were not regularly provided with wage increases every two years; that it provided all information requested by the Charging Party during the bargaining process which it was legally required to provide; and that it never conditioned any offer to transfer Solomon Martinez on his signing a decertification petition. Respondent also raised the issue of ALRB agent misconduct in its answer, contending that the complaint was issued for an improper purpose, pursuant to "flawed and incomplete investigations, which created an appearance of bias." (Answer, p. 5.)[3]

Pictsweet further asserts that the UFW had abandoned the bargaining unit, thus extinguishing any bargaining obligation that Pictsweet may at one time have had to the UFW.[4]

At the prehearing conference in this matter, Respondent's motion for summary judgment or, in the alternative, summary adjudication of issues was heard and denied by me in an order dated December 22, 2001.[5] During the hearing, Respondent moved for dismissal of paragraph 22 of the Complaint after the close of the General Counsel's and Charging Party's cases, but also after Respondent had put on all of its witnesses, with the exception of the recall of Ruben Franco, its general manager. I denied the motion as untimely.

Section 20243 of the Board's regulations provides that a motion for decision for lack of evidence may be made by the opposing party after the General Counsel or the

Respondent has completed its presentation of evidence. Such a motion can be

made without waiving the moving party's right to offer evidence in support of its defense in the event that the motion is not granted. Here, Respondent put on most of its testimony?that of five witnesses?and nonetheless made its motion. Given that the hearing was nearly concluded, Respondent's motion served no purpose.[6]

The General Counsel, Respondent, and Charging Party (intervenor) were represented at the hearing and were given a full opportunity to participate in the proceedings. All filed briefs after the close of the hearing. Based on the entire record,[7] including my observations of the demeanor of the witnesses, and after consideration of the arguments and briefs submitted by the parties, I make the following findings of fact and conclusions of law.

FINDINGS

1. Jurisdiction

Respondent Pictsweet Mushroom Farms, a division of United Foods, Inc., is engaged in agricultural operations, specifically the growing and harvesting of mushrooms in Ventura, California, as was admitted by Respondent. Accordingly, I find that Respondent is an agricultural employer within the meaning of section 1140.4 (a) and (c) of the Act. I further find that the UFW is a labor organization within the meaning of section 1140.4(f) of the Act, as was also admitted by Respondent.

At the commencement of the hearing, Respondent moved to exclude from the bargaining unit Pictsweet employees who pack mushrooms in its Ventura facility. Respondent argued that the packers are not agricultural employees as defined in section 1140.4(b), because they pack mushrooms grown by outside growers as well as Pictsweet. In support of its contentions, Pictsweet presented the testimony of general manager Ruben Franco. Franco testified that Respondent regularly purchases enoki, oyster, portabello, and wood's ear mushrooms from other growers, as Pictsweet does not grow any of these exotic/specialty mushrooms. These specialty mushrooms are delivered and packed on a daily basis. (RT 49: 1-5; 63: 13-19)

Franco also testified that PMF purchases white and brown mushrooms when Respondent is short mushrooms to fill customer orders. He estimated that Pictsweet buys from 2,000-3,000 up to 80,000 pounds of brown and white mushrooms three-to-five times a year. Pictsweet purchases these mushrooms if it encounters problems with its growing process. If no problems occur, then according to Franco, "we normally don't buy." (RT 64: 24-28) Franco reported that Pictsweet purchased 15,000 pounds of brown and white mushrooms out of a total of one million pounds total mushrooms shipped in January 2002. (RT 64: 4-13)

Franco indicated that Pictsweet employs 20 packers on the average (RT 49: 21-27)[8], and that all packers pack specialty mushrooms and the brown and white mushrooms that are grown by outside growers.

Charging Party indicated that it would not object to the exclusion of the packers from the bargaining unit since they regularly pack mushrooms grown by growers other than Pictsweet. Counsel for the United Farm Workers indicated that the Union and Respondent had been engaged in discussions about the status of the packers during the collective bargaining negotiations. (RT 36: 14-18) The General Counsel would not join in any stipulation as the status of the packers, taking the position that a unit clarification petition was the proper vehicle for resolving whether the packers should be included in the unit. (RT 65: 20-23) Moreover, at the close of the hearing, the General Counsel stated that he was seeking a remedy on behalf of those packers who suffered losses due to any unfair labor practices committed by Respondent. (RT 1305: 3-5) During the hearing, I reserved ruling on the status of the packers.

Although one method for settling the question of whether the packers should be included in the bargaining unit would be through a unit clarification proceeding pursuant to section 20385 of the Board's regulations,[9] because the General Counsel seeks a remedy for the packers in this unfair labor practice proceeding, the jurisdictional issue of whether the packers are agricultural employees within the meaning of section 1140.4(b) of the ALRA must be resolved in this unfair labor practice proceeding.[10]

Section 1140.4 (b) provides that agricultural employees are those employees who are "engaged in agriculture" as defined in section 1140.4(a) and who are excluded from the coverage of the NLRA by NLRA section 2(3) and section 3(f) of the federal Fair

Labor Standards Act. Department of Labor regulations interpreting section 3(f) state "No practice performed with respect to farm commodities is within the language [of FLSA] by reason of its performance on a farm unless all of such commodities are the products of that farm."

In Camsco Produce Company, Inc. (1990) 297 NLRB No. 157, the NLRB announced the test it would use for determining its jurisdiction over employees who are engaged in secondary agricultural related practices, i.e. those performed as an incident to or in conjunction with farming operations. In Camsco, the national board stated that it "will assert jurisdiction if any amount of farm commodities other than those of the employer-farmer are regularly handled by the employees in question." (Emphasis added) The board ruled, "it is not unreasonable to conclude that a farmer-employer who handles the products of other producers on a regular basis has departed from the traditional model of the farmer who simply prepares his own products for market." The NLRB reasoned that to extend the protections of the NLRA to such employees is consistent with the intent of Congress. Camsco actually involved fresh pack employees packing mushrooms grown by their employer as well as those produced by farmers other then the employer. The national board asserted jurisdiction over those fresh pack employees.

The NLRB reached the same result in Campbells Fresh, Inc. (1990) 298 NLRB

No. 54. That case too involved an employer that cultivates, harvests, and packs mushrooms. Although the UFW was certified as the collective bargaining agent for Campbells' "agricultural employees," the national board found that the employer's short distance drivers were not agricultural employees because they transported outside mushrooms on a regular basis-even though the quantity of outside mushrooms was very small?thus satisfying the criteria in Camsco. (See also NLRB v Cal-Maine Farms, Inc. (1993) 998 F2d 1336 [The court ruled that the NLRB had jurisdiction over employer that produced and processed eggs, because it regularly procured eggs from outside sources.]) The ALRB has followed this NLRB precedent. (See William Warmerdam (1998) 24 ALRB No. 2, ALJD, p. 13, fn. 7, pp.14-16; and Olson Farms/Certified Egg Farms, Inc. (1994) 19 ALRB No. 20, p. 5, fn 8.)

Pictsweet's fresh pack employees regularly pack mushrooms grown by outside growers; specifically, they pack exotic or specialty mushrooms on a daily basis. This activity brings them within the Camsco criteria for non-agricultural employees. They also pack brown and white mushrooms from outside growers on a periodic basis throughout the year, but it is in relatively small quantities and does not appear to be on a regular basis. Thus, absent the specialty mushrooms, a different result might obtain. However, under the aforementioned NLRB and ALRB precedent, the packers are not agricultural employees, and the ALRB has no jurisdiction over them. Thus, I will not consider any allegations of unfair labor practices involving the packers.

2. Background

Pictsweet Mushroom Farm is a division of United Foods Inc. Respondent produces and packs mushrooms. In addition to the mushrooms that it grows and packs, it buys and packs mushrooms grown by other producers. Respondent's operations are year round; prior to the events here, it employed a workforce of some 365 persons, of which some 165 were pickers. (RT 181: 15-17) Its operations are divided into various departments, each of which is headed by a supervisor. The departments consist of the following: compost; filling; spawning; dirt preparation; casing; room control- general labor; room control-water; room control-chemical; room control-disease; dumping; general grow hourly, maintenance-yard clean; maintenance-facility; maintenance-boiler; pickers, pick-up, pack-packing; pack-sanitation; pack-box prep; pack-cooler; compost-sales. There is also a department consisting of drivers, and one for the truck maintenance crew. (CPX # 161.)

Ruben Franco, Pictsweet's general manager, directs the company's operations; he has worked in that capacity for PMF or its predecessors since 1987. (RT 46: 16-20, 179: 1-25) The personnel department is headed by Gilbert Olmos, who has been employed by Respondent as Human Resources Manager for four years. (RT 1044: 20-23.)

The witnesses at the hearing did not set out the process of growing the mushrooms at Pictsweet in detail. A very detailed explanation of the culturation process is offered in the ALJ decision in West Foods, Inc. (1985) 11 ALRB No. 17, ALJD, pp. 9-12. However, for the purposes of this case, the process for reducing production is most

relevant in light of the allegations relating to unlawful layoffs and reductions in hours which occurred when Pictsweet reduced its operations after the Vons' cancellation notice. Ruben Franco described that process:

What we call a cycle is from the day that we put

the canvas inside the building to the day that we

take the canvas out of the building. That's what we

call a cycle, which is 87 days. Picking cycle is from

the day we start picking to the day that we steam off

the room, and then we take the canvas out. And that

picking cycle is 28 days.

We get four breaks in that [picking] cycle. Every seven

days we get one crop. So we got the first break, second

break, third break, and fourth break. When the Vons'

business was lost, the third and fourth breaks were the

ones that we started steaming off [i.e. killing before

they were harvested]. (RT 265: 3-13, see also 264; 18-20.)

The mushroom crop is highly perishable. Franco testified that PMF can sell mushrooms one or two days old, but that by the third day, the product has to be downgraded and sold to canneries. By the fourth day, any mushrooms not shipped have to be thrown away. (RT 531: 11-14)

Franco stated that usually the mushrooms are picked, cooled, packed and shipped on the same day. (RT 512:22-25, 5131-13.) With respect to the mushrooms that are sent out the second day, he testified that PMF has to pick and choose, because as the mushrooms get darker, the customers do not want them. Mushrooms picked and shipped on the first day were sold on the average at $1.30 per pound; those shipped the second day were sold on an average of $1.18-$1.20 per pound, while those shipped on the third day to the canneries were sold for $.35-$.45 per pound. At the time Vons cancelled its business, Pictsweet sold 90% of its product to retail operations, with only about 10% going to canneries. (RT 517: 11-23, 518: 1-22, 5191-21, 520 21-25)

The UFW was certified as the exclusive bargaining representative of the employees of PMF's predecessor in 1975.[11] Although at one time there was a contract between the UFW and Pictsweet's predecessor, there has been no collective bargaining

contract in effect for many years. (RT 179: 18-20; 192: 7-9) The United Farm Workers contacted Respondent in December 1999, and the parties began negotiations for a collective bargaining contract in January 2000. (RT 637:17-25; 638: 13-15) The parties held six bargaining sessions between January 26, 2000 and May 2, 2000. UFW negotiator Jorge Rivera canceled a May 30, 2000 session (RT 837: 6-9), and the parties did not meet again until September 25, 2000. (RT 756: 23-26)

The parties stipulated that while the negotiations were on-going, the UFW became involved in unspecified boycott activity directed against PMF, which led to a cancellation of purchases of PMF's products by Vons on August 27, 2000, and to a loss of Ralphs' business on September 21, 2000. Together, the two grocery chains made up approximately 50% of Respondent's business. (RT 201: 22-23; 221: 7-9; All Parties' Exhibit #1.)

On August 28, 2000, Respondent posted a notice at its facility directed to its employees, stating that due to the loss of the Vons' business, which it attributed to illegal

UFW boycott activity, Respondent would be forced to immediately reduce production

and layoff employees. (GCX #6; RT 208: 6-18) Vons' represented 25% of Pictsweet's business. (RT 201: 22-23; 505: 12-15)

3. Respondent's Defense of Abandonment

Respondent argues that the ALRB should reconsider abandonment as a defense to a refusal to bargain. Contrary to Respondent's assertion, the ALRB does in limited circumstances recognize the abandonment doctrine. This case is simply not an appropriate case for such a defense.

In Nish Noroian Farms (1982) 8 ALRB No. 25, p. 15, the Board ruled that just as the means by which a union will be recognized under the ALRA is through winning a secret ballot election and being certified by the Board, withdrawal or termination of recognition must also be left to the election process. In Lu-ette Farms (1982) 8 ALRB No. 91, p. 5, the Board stated that a certified union remains the exclusive collective bargaining representative of the employees in the unit until it is decertified or a rival union is certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees.

The Board reaffirmed that position in Bruce Church (1991) 17 ALRB No. 1, in which it defined abandonment as a showing that the certified union was either unwilling or unable to represent the bargaining unit. The Board there found that the ALRA requires formal decertification in such instances. (See also Cardinal Distributing Co. Inc. (1993) 19 ALRB No. 10.) Here, Pictsweet recognized the UFW as the certified representative of its employees, and in January 2000, began collective bargaining with the UFW. The Union is obviously interested in representing the bargaining unit members, and Respondent has recognized the validity of the certification by engaging in bargaining. There has been no decertification of the UFW. Under such circumstances, Respondent cannot establish the defense of abandonment.

4. The Unfair Labor Practices

A. Layoffs and Reductions in Hours

1. The September 5, 2000 Layoffs

On August 28, 2000, the day that the notice about the loss of Vons' business was posted, a group of the workers gave a copy of the notice to UFW staff member Jessica Arciniega. She in turn faxed the notice to the UFW's Parlier office, which is where Jorge Rivera, the UFW's chief negotiator, received his mail and faxed communications. (RT 694: 3-17; 695: 3-8) Rivera testified that he did not see the notice until a short time

before the February 14, 2002, unfair labor practice hearing. He stated that he discovered it among his paperwork relating to Pictsweet and faxed it to the UFW's legal department, which then provided the document and the faxed cover sheet to Respondent in response to a earlier discovery request. (RT 767: 10-27; RX #11)

On September 5, 2000, Respondent posted a list of the employees it decided to lay off due to the drop in its business caused by Vons' cancellation of purchases. (GC# 10) Although that list includes 14 employees, based on the documentary evidence introduced by Charging Party, it appears that a fifteenth employee, Jose Sanchez, a weighmaster, was also laid off on September 5, 2000. (See CPX # 85, 90 and 93) Of the 14 employees on the list, ten were pickers: Alfredo Macias, Raul Gutierrez, Carlos Mendoza, Erasmo Torres, Mario Morales, Jose M. Garcia, Gustavo Palomino, Cesar Aguirre, Miguel Arias, and Bernardo Montenegro. The other four employees were packers over whom I have ruled that the Board has no jurisdiction.[12]

It is undisputed that the UFW did not request bargaining with Respondent over the projected layoffs or with respect to any reductions in hours. Instead, the UFW filed an unfair labor practice charge on September 13, 2000. Rivera testified that he only found out about the layoffs from UFW vice-president, Lupe Martinez, on September 11, 2000. (RT 742: 26-28; 743: 1-10.) At some point, he also learned that a charge had been filed by the UFW with respect to the layoffs. (RT 743: 13-18)

Rivera also received notice of the layoffs in a September 14, 2000 letter from Respondent's negotiator, Harry Stang (faxed and sent certified mail), which informed Rivera that as a result of the UFW's boycott activities, one of Respondent's major customers had terminated mushroom purchases. In that letter, Stang informed Rivera that, due to the drop in sales volume, there would be layoffs and reductions in employee hours. He noted that Pictsweet had already provided the UFW with the names and hire dates of the first group of employees to be laid off. (GC #14) Rivera testified that he

did in fact receive Stang's letter, and he also sent a written response. (RT 840: 17-21; GC #15) In that response, he requested additional information about how Pictsweet proposed to deal with the reduction of work for its employees.

It is likewise undisputed that Respondent itself did not give any prior direct notice of the layoffs to the UFW chief negotiator. Although Franco says that he gave a copy

of the August 28, 2000 notice to Arciniega, she denied receiving it from him. (RT 205: 4-15,17-19) She testified that PMF workers gave her the notice. I credit her testimony on that point.[13] In fact, when Stang wrote to Rivera on September 11, 2000, he did not mention either the boycott or layoffs. (GC # 13)

There was not any bargaining about the layoffs until the parties met for negotiations on September 25, 2000. On that date, they reached an agreement that any layoffs would be in order of classification seniority, i.e. seniority in the particular department where any layoff would occur, and that recalls would likewise be in order of classification seniority, with those employees with the most seniority being the first to be called back to work. (RT 757:12-19) Prior to the September 25, 2000 meeting, the parties had not met for negotiations since May 2, 2000.

2. Subsequent Layoffs and Reductions in Hours

The documentary evidence admitted at the hearing indicates that further layoffs

occurred at Pictsweet in the months after the loss of Vons' business. Specifically, layoffs in the bubble/trash crew took place on September 9, September 29, October 2, and October 9, 2000.[14] Margarito Sanchez, a picker, was laid off on September 9, 2000.

On September 19, 2000, Jesus Davila was laid off from the box making crew. [15] On September 24, 2000, Armando Cortes was laid off from his work as a driver. More packers were laid off in October 2000, and in January and February 2001.[16] On November 15, 2000, a group of 12 workers were laid off for one day. They were all pickers.[17] (See CPX #94) Virtually all layoffs were in the picking, fresh pack, and bubble trash departments. (See RT 337: 17-21; CPX # 81-96)

With respect to the reductions in hours, Franco testified that as Pictsweet reduced production due to reduced demand, the workers' hours would have to be reduced. (RT 201: 22-25) As Franco put it: "Production went down. Production was cut back. Yes, the hours had to be less." (RT 220: 25; 221: 1; See, also 269: 19-25 and 671: 9-25, as well as CGX # 8, 9, and 14) Pictsweet shipped 385,381 pounds of mushrooms the week ending August 26, 2000, and 335,811 pounds the week ending September 9, 2000; by the week ending September 30, 2000, Pictsweet shipped only 276,588 pounds. (RX #6)

The interim agreement covered only layoffs. It did not address the question of reductions in hours. Rivera denied that the parties ever discussed any planned reductions in hours; he stated that at the September 25, 2000 meeting, the UFW proposed that there be an across the board reduction in hours, rather than layoffs, but the company refused to consider such an option. (RT 757: 5-8; 758:7-9) Rivera was emphatic that there was no

bargaining over any planned reduction in hours on September 25, 2000; he stated that Respondent was insistent that the facility could not work on a schedule of reduced hours. Stang's confirming letter to Rivera after the September 25, 2000 meeting mentions only an agreement as to future layoffs, thus corroborating Rivera's testimony. (See GCX #16)

Analysis and Conclusions
Layoffs and reduction in the hours of employment affect a material, substantial and significant change in the affected employees' working conditions. Both are mandatory subjects of bargaining, and a union has the right to bargain over layoffs and proposed reductions in hours before they can be implemented. (Schied Vineyards and Management Co. (1995) 21 ALRB No. 10, pp 3-8; NLRB v Katz (1962) 369 U.S. 736, 747; Porta-King Bldg. Systems v NLRB (8th Cir. 1994) 14 F3d 1258, 1261; Eugene Iovine, Inc. (1999) 328 NLRB No. 39, p.1; Top Job Building Maintenance Co. Inc. (1991) 304 NLRB No. 117.) Where there are no contractual provisions regarding layoffs and the parties are engaged in collective bargaining, an employer who wishes to make changes which will result in layoffs or reductions in hours must bargain to good faith impasse before instituting any such change.

In Katz, the Supreme Court ruled, "there might be circumstances which the Board could or should accept as excusing or justifying unilateral action." (Id. at 748)

A waiver or refusal to bargain by the union or exigent circumstances or business necessity may justify unilateral action. Both the NLRB and ALRB decide these issues on a case-by-case basis. (Joe Maggio Inc. (1982) 8 ALRB No. 72, pp. 25-30; NLRB v Katz, supra, 369 U.S. 736; Porta-King Building Systems, supra, 14 F3d 1258; Clements Wire (1981) 257 NLRB 1058, 1059.)

Respondent's Defenses
Respondent justifies its unilateral actions in laying off employees on September 5, 2000, as well as subsequent layoffs and reductions in hours on a number of different grounds. Respondent contends that the UFW had notice of the planned layoffs since a UFW staff member was given a copy of the August 28, 2000 notice and that the Union's failure to request bargaining constituted a waiver of its right to bargain over these changes. In a related waiver argument, Pictsweet also contends that there had been layoffs in the past, most recently in May 2000, and the UFW never requested bargaining, thus acquiescing in such unilateral changes by its past conduct.[18] Respondent also argues that the layoffs and reduction in hours were a privileged response to the UFW's boycott activity, about which it had no duty to bargain. PMF further contends that the layoffs were the result of business necessity or exigent circumstances, given the loss of 50% of its business. Respondent also claims that the UFW refused to bargain, thus justifying unilateral action by Pictsweet. Each of Respondent's defenses will be considered separately.
1. Waiver

Respondent argues that the UFW was in fact provided notice of the layoffs because Jessica Arciniega received a copy of the August 28, 2000, memorandum to Pictsweet's employees. Respondent contends that it does not matter whether Arciniega received the notice from Franco or PMF workers, because the undisputed evidence establishes that the UFW had actual notice of the planned layoffs, and nevertheless chose not to request bargaining. Thus, Respondent argues that the UFW waived its right to bargain about the layoffs and the reductions in hours.

Unfortunately, the notice issue is not so easily analyzed. First of all, the party alleging a waiver of bargaining rights bears the burden of proof on the issue. (Roberts Farms (1988) 13 ALRB No. 14, pp. 5-6; Litton Microwave Cooking Products Division, Litton Systems, Inc. (1987) 283 NLRB 973.) Although it is undisputed that Arciniega received a copy of the notice, two additional questions arise. First, did her receipt of the August 28, 2000 memorandum constitute timely notice of Pictsweet's planned changes, and second, was Arciniega's receipt of the memorandum effective notice to the Union of Respondent's intention to layoff workers and reduce production.

Arciniega received the notice from the workers sometime in the afternoon of August 28, 2000. The notice is clear:

[I]t will be necessary to reduce production

immediately. This also means that some

employees will have to be laid off. Layoffs

will be based on our production cycle and

seniority. The layoffs will begin immediately.

(GCX No. 6) The notice, then, presents the workers-and the UFW-with a fait accompli. By the time the workers saw the memorandum, Pictsweet had already considered its options and come to a decision: it would immediately cutback production in light of the 25% drop in customer demand due to the loss of Vons' business, and it would begin layoffs immediately.

Franco's testimony bears out such an interpretation of the pace of events and the clear import of the memorandum. He stated that he found out about the loss of Vons' business from Marty Craner, a PMF salesperson, who called him early Saturday morning, August 26, 2000. Franco immediately notified John Haltom, Pictsweet's president. Franco and Haltom had several conversations on Saturday and on Sunday, August 27, 2000. Haltom directed Franco to have a plan in place to reduce production. Franco confirmed that the plan to reduce production was finalized by Sunday, August 27, 2000. (RT 194: 8-15; 195: 12-13; 261: 22-25, 262: 15-22, 265: 15-22.) He testified that by the time he posted the August 28, 2000 memorandum, he had decided to reduce production and layoff workers. (RT 198: 12-20) He also testified that once production was reduced, it was axiomatic that employee hours would be reduced. (RT 266: 2-4) Contrary to Respondent's contentions, Pictsweet's decision had been made prior to the posting of the memorandum. (RT 266: 7-17) Although Franco subsequently backtracked and testified that he did not have a plan in place Sunday and that he and Haltom did not decide until August 31, 2000 to steam off breaks, I credit his initial testimony as the more candid portrayal of what occurred the weekend of August 26-27, 2000.

Notice of a layoff, in order to be effective "must be given sufficiently in

advance of the actual implementation of a decision to allow a reasonable scope of bargaining....Notice of a fait accompli is simply not the sort of timely notice upon which the waiver defense is predicated." (ILGWU (Garment Workers) v NLRB (D.C. Cir. 1972) 463 F2d 907, 919; Pontiac Osteopathic Hospital (2001) 336 NLRB No. 101, p. 4.) Here, even assuming that Arciniega's receipt of the memorandum, rather than notice to the Union's negotiator, was sufficient to put the UFW on notice of the pending charges, I find that the Union did not waive its right to bargain because bargaining in this instance would have been futile as the decision had already been made. (NLRB v National Car Rental System, Inc. (3rd Cir. 1982) 672 F2d 1182, 1189.)

The second issue is whether Arciniega's receipt of the memorandum was sufficient to put the Union on notice of the unilateral changes planned by Pictsweet, so that the Union could request bargaining over those changes. Arciniega testified that she faxed the memorandum to Jorge Rivera, the UFW employee with responsibility for the negotiations with PMF. I credited Rivera's testimony that he did not receive the fax from Arciniega, and that he did not see it until a few weeks before the unfair labor practice hearing.[19]

Arciniega works for the UFW in its Oxnard office. She is responsible for working with the PMF workers' negotiating and organizing committees. She began working with

the Pictsweet workers in September 1999. She had no responsibility for collective bargaining with Pictsweet, although she attended the negotiations, translating for the negotiating committee. (RT 682: 2-13) Respondent introduced no evidence to show

that Arciniega routinely communicated with Pictsweet management on issues involving bargaining. She stated that she had no authority in terms of negotiating with PMF. (RT 696: 3-5)

Since I credit Arciniega's testimony that the workers gave her the memorandum,

I find that Respondent did not even know that she in fact had it. Franco himself testified that he had not given notice to the UFW of changes in terms and conditions of employment over the past thirteen years. All communications with the UFW for collective bargaining were through Rivera. Neither Pictsweet management nor its negotiator attempted to contact Rivera in advance of the decision to immediately reduce production and commence layoffs. Since PMF undoubtedly blamed the UFW for the loss of business, it was even less likely in this instance that Respondent would have considered complying with its duty to give notice and bargain about the planned changes outlined in the memorandum. Given the fortuitous nature of Arciniega's receipt of the notice, the fact that she undertook to forward it to Rivera cannot be considered to have relieved Respondent of its obligation to provide notice.

Furthermore, I credit Rivera's testimony that he never saw the fax; therefore, I do not believe that under these circumstances, Respondent has met its burden of proving that the union waived its right to bargain. A waiver can not be inferred from the UFW's failure to request bargaining after Arciniega received the memorandum. (William Warmerdam (1996) 22 ALRB No. 13; NLRB v Roll and Hold Warehouse and Distribution Corp. (7th Cir. 1998) 162 F3d 513, 518.) Such a result does not or penalize Pictsweet, since Pictsweet itself made no effort to provide notice to the UFW's negotiator or to any other union employee of the planned layoffs and reduction of production. Had it done so, it would then have been up to the UFW to request bargaining.

Respondent additionally argues that it had made layoffs and reduced hours "during the decade preceding September 2000, based on fluctuations in production requirements." (Post-Hearing Brief, p. 23.) However, as the Board observed in William Warmerdam (1996) 22 ALRB No. 13, p. 22; "[a] union's past practice of permitting unilateral

changes ... does not constituter a waiver of the union's right to bargain over such changes ... as [NLRB] precedent makes clear, a union's acquiescence in previous unilateral conduct does not necessarily operate in futuro as a waiver of its statutory rights under Section 8 (a)(5) [cites omitted]." Moreover, Respondent admits that with the exception of May 2000, it gave no notice of these layoffs and reductions in hours to the UFW.

With respect to the May layoffs, in its post-hearing brief, Respondent claims to have given information regarding the details of the May layoff and recalls to the Union. Yet neither its transcript citations nor Respondent's Exhibit # 5 bears out that claim. It appears that no information was provided to the UFW regarding the "turn down in picking production," which was caused by a "significant down turn in yield (RX # 5); although a list of employees laid off and recalled as of June 7, 2000, was faxed to the Union on June 7, 2000. Certainly no advance notice of the May layoff was given to the Union. Apparently all workers were recalled by the time the Union was notified. Certainly, no waiver can be inferred by the UFW's failure to request bargaining over the May layoffs. Respondent's conduct in May appears to be yet another instance of its policy of not notifying the Union before taking unilateral action.

2. Exigent Circumstances Defense

Respondent next argues that it was not required to bargain about the

Layoffs because they were justified by exigent circumstances. The exigent circumstances defense to unilateral action was explained by the NLRB in RBE Electronics (1995) 320 NLRB 80:

Thus, where we find that an employer is confronted

with an economic exigency compelling prompt action

short of the type relieving the employer of its obligation

to bargain entirely, we will hold under the Bottom Line

Enterprises exigency exception...that the employer will

satisfy its statutory obligation by providing the union with

adequate notice and an opportunity to bargain.

The national board held that under such circumstances, the employer can act unilaterally if either the union waives its right to bargain or the parties reach impasse on the matter proposed for change. RBE Electronics set forth certain criteria that the employer must meet in order to rely on exigent circumstances to justify unilateral action. The circumstances must be truly exigent, demanding prompt action, and the exigency must be caused by events beyond the employer's control or by events that were not reasonably foreseeable. The board once again pointed out that the "economic exigency exception" involves a heavy burden.

This argument, too, must be rejected. First, even as explained by Respondent, such a defense to a unilateral change requires that there be notice to the union and an opportunity to bargain . Here, Respondent did not give notice to the UFW. There was no opportunity to bargain and no bargaining occurred before the layoffs or reduction of hours. (Eugene Iovine, Inc. (1999) 328 NLRB No.39 , p. 7 [Board adopts ALJ's finding that, since employer did not give notice to union, it could not rely on the RBE Electronics "limited exception" to the duty to refrain from unilaterally changing employee terms and conditions of employment during contract negotiations.]) Moreover, as explained above, I have rejected Respondent's claim that the Union waived its right to bargain. Thus, Pictsweet has not established the elements of this defense to its unilateral actions.

3. The Business Necessity Defense

Pictsweet also argues that it was not required to bargain due to business

necessity that dictated a need for immediate action. As the NLRB explained in Hankins Lumber Co. (1995) 316 NLRB 837:

Most layoffs are taken as a result of economic

considerations. However, business necessity is

not the equivalent of compelling considerations

which excuse bargaining. Were that the case, a respondent

faced with a gloomy economic outlook could take any

unilateral action it wished or violate any of the terms

of a contract which it had signed simply

because it was being squeezed financially.

Business necessity does not justify taking unilateral action such as Respondent did here. Indisputably, Respondent lost a significant portion of its business, but such a loss does not justify its implementation of changes without prior notice to or bargaining with the UFW. (Angelica Health Services Group (1987) 284 NLRB 844, 852; Clements Wire & Mfg. Co. (1981) 257 NLRB 1058, 1059.)

In Van Dorn Plastic Machinery Co. (1982) 265 NLRB 864, 865, modified (6th Cir. 1984) 736 F2d 343, the NLRB drew a distinction between economic expediency or sound business considerations and "compelling economic considerations" which justify unilateral action. In referencing Van Dorn Plastics in the Angelica Health Systems Group case, the board adopted the ALJ's finding that a loss of 14% of the employer's business did not constitute a "compelling economic consideration" justifying unilateral action. The types of situations which have served to excuse bargaining over layoffs have included a breakdown of machinery (Tylertown Wood Products ( 1980) 251 NLRB 515, 520) and the freezing of an employer's assets in a bankruptcy proceeding (Aquaslide N Dive Corp. (1986) 281 NLRB 219, 224).

In Joe Maggio Inc. (1982) 8 ALRB No. 72, pp. 25-30, the ALRB reviewed NLRB precedent regarding the business necessity defense to unilateral action and concluded that it agreed with the NLRB that economic necessity is not sufficient to justify a unilateral change without prior notice to and bargaining with the union. The Board determined that it would review the facts and circumstances of each case to determine whether any particular circumstances will justify an employer's unilateral changes. In Charles Malovich (1983) 9 ALRB No. 64, the Board did find that business necessity justified the employer's hiring of a labor contractor to assist with the harvest when the employer notified the union two days later, and the union had previously had difficulty in furnishing additional workers to assist in the harvest, which was in danger of spoiling.

In this case, despite the loss of a significant portion of its business, Pictsweet did not begin layoffs until September 5, 2000. It received notice of the loss of Vons' business on August 26, 2000. It had time to provide notice to the Union, and it would have then been up to the Union to request bargaining over the layoffs. However, as discussed above, over the past 13 years, Franco had not given notice to the Union regarding changes in working conditions. Pictsweet chose to continue to operate in this fashion, and cannot now avail itself of a defense that compels notice and bargaining to the extent possible with the Union.

4. The Union Refused To Bargain With Respondent Justifying Unilateral Action With Respect To Layoffs & Reductions Of Hours

Although Pictsweet claims that the UFW deliberately and continually

delayed bargaining; there is no record evidence to support such a characlerization of the negotiations. There was virtually no evidence introduced at this hearing concerning the course of bargaining between the UFW and Pictsweet, since there were no allegations of overall bad faith bargaining.[20] The record evidence shows the parties met six times, and even according to Respondent, both parties presented comprehensive proposals. (Respondent's Post-Hearing Brief, p.4) The fact that no agreement had been reached between January 26, 2000 and September 25, 2000 does not by itself indicate dilatory conduct by the UFW. Rivera did cancel the May 22, 2000 negotiation session, and although he was apparently responsible for contacting PMF negotiators to reschedule, the record shows no contacts from either side to reschedule another session, until Rivera's contact with Stang on September 8, 2000. (RT 748,838)[21] Respondent cites M&M Building (1982) 262 NLRB 1472, in which the NLRB found the Union resisted negotiations by failing to meet with the employer even once in seven months, despite the Employer's efforts to engage in bargaining, yet the case is hardly opposite.

There is no record evidence to support Respondent's claim that the UFW refused to bargain. The parties obviously were critical of each other's bargaining styles; yet the negotiations themselves were not litigated. Respondent's argument on this score must be rejected, since it can only point to the delay in bargaining between May 22, 2000 and the September 25, 2000 session, which was set up on September 8, 2000.

5. No Duty to Bargain in Face of Union's Use of Economic Weapon of Boycott

PMF contends that its decision to layoff employees and reduce the hours of its

employees due to its loss of business was in direct response to the UFW's own economic activity directed at PMF. The company argues that since it was the UFW's boycott activities that led to the loss of Respondent's business, Pictsweet was under to obligation to notify and bargain with the UFW over the steps it took to continue its business in response to that boycott activity.

Long-standing NLRB precedent recognizes the rights of both labor and

management to use a variety of economic weapons in an effort to influence the collective bargaining process. From the union's standpoint, such weapons include the strike or threat of strike, both of which are specifically allowed in section 13 of the NLRA as a means of exerting pressure. Also available is a consumer boycott (F.W. Woolworth (1993) 310 NLRB 1197) or the use of a slowdown or other tactics such as half-day walkouts or a refusal to perform certain job duties (NLRB v Insurance Agents' International Union (1960) 361 U.S. 497). The employer may lockout employees in order to bring pressure to bear on the union to modify its bargaining demands, as long as

the purpose of the lockout is "to bring about a settlement of a labor dispute on favorable terms." (American Ship Building Co. . NLRB (1965) 380 U.S. 300, 313 80 S. Ct 419; see also Harter Equipment Inc. (1986) 280 NLRB 597 rev den. (3d Cir. 1987) 829 F2d 458.) In Insurance Agents', the Supreme Court pointed out that during negotiations for a collective bargaining agreement, the "presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system" that Congress created." 361 U.S. at 489. The Supreme Court has admonished the NLRB about injecting itself into the bargaining process "to deny weapons to one party or the other because of its assessment of that party's bargaining power." (American Ship, 380 U.S. at 308, see Insurance Agents, 361 U.S. at 489-492.)

When the union chooses the economic weapon of a strike to further its

collective bargaining demands, NLRB precedent permits the employer to take unilateral action?relieving it of its customary duty to provide notice and bargain--in a variety of situations. The board and the courts have permitted an employer to (1) permanently subcontract bargaining unit work, although the employer must show a legitimate business justification for permanent subcontractors (Hawaii Meat Co. v NLRB (9th Cir.1963) 321 F2d 307, 400); (2) contract out deliveries to businesses which the striking union intended to boycott (Empire Terminal Warehouse Co. (1965) 151 NLRB 1359 aff'd (DC Cir 1966) 355 F2d 842 ; (3) transfer equipment to another facility (Lion Uniform, Janesville Apparel Division (1982) 259 NLRB 1141, 1145); and (4) temporarily subcontract out operations (Titus-Will Ford Sales et al. (1972) 197 NLRB 147, 153).

I could find no authority directly on point either from the NLRB or ALRB as to this employer's obligations when the union chooses the economic weapon of a consumer boycott, directly causing a downturn of the employer's business. Is the employer required to bargain with the union before taking temporary measures to continue operations- The strike cases suggest a paradigm for analysis. There, when the union employs economic weapons to influence the collective bargaining process, the employer is free to take "reasonable measures necessary in order to maintain operations in such circumstances." (Empire Terminal Warehouse Co. 151 NLRB 1359.) Those temporary stopgap measures do not require bargaining. (See above cases, as well as Land Air Delivery (1987) 286 NLRB 1131, 1132, fn.7, enf'd (D.C. Cir. 1988) 862 F2d 354, cert. den. (1989) 493 U.S. 810.

The court's opinion in Laclede Gas Co. v NLRB (8th Cir. 1970) 421 F2d 610,616 states this proposition clearly:

In our view, neither an employer nor union is required to

bargain over the timing of a strike or lockout or over the

selection of the employees who will participate in the action.

In Laclede, the court reversed the NLRB's decision that the employer violated section 8(a)(5) of the NLRA when it locked out its employees in anticipation of a strike, without regard to seniority. In F.W. Woolworth (1993) 310 NLRB 1197, the union, as did the UFW here, initiated a boycott of the employer, and in response, the employer discriminatorily altered its scheduling practices and reduced the hours of those employees who were union supporters. Because of the 8(a)(3) violations, the board was not called on to discuss the simple use of economic weapons, by either the union or employer, however, the ALJ remarked in dicta:

No duty to bargain over tactics responsive to the implementation

of economic weapons in support of collective bargaining exists.

(310 NLRB at 1207; the ALJ relied on the Laclede decision for this proposition.)

The strike cases permit unilateral action by the employer because the Act, as interpreted by the Board and the courts, recognized the right of an employer to keep its business operating. The board has approved arrangements, such as subcontracting, as "stopgap or temporary measure in order to continue [the employer's] business relationships with [its] customers." (Empire Terminal Warehouse (1965) 151 NLRB 1359, 1365.) In MR & R Trucking Co. v NLRB (5th Cir. 1970) 4343 F2d 689, 696, the court ruled that the employer's unilateral changes were "reasonably directed to insuring the continuance of operations," stating

In the exigencies of the situation the company was not

required to negotiate with the striking union about these

deviations in terms and conditions of employment.

The strike cases permit a unilateral employer response to the union's first use of the economic weapon of the strike; the employer is essentially reacting defensively.[22]

One case, not involving a strike, which utilizes this same analysis is Celotex Corporation (1964) 146 NLRB 48, enf'd in part (5th Cir. 1966) 364 F2d 552. There, the national board found that there was no 8(a)(5) violation when (1) the employer eliminated "gifttime" to a class of employees (who were paid for eight hours for working little more than two hours) without bargaining with the union because the shortage of work was due to the union's slowdown and curtailment of production; and (2) the employer changed work schedules in order to maintain production in the face of a slowdown and refusal by employees to work overtime. In that case, too, the employer was reacting defensively to the union's use of economic weapons.

As I noted earlier, there is a lack of ALRB precedent on this issue. In St. Supery (1991) 17 ALRB No. 14, the ALRB reversed the ALJ's finding that the employer was justified in imposing production standards in response to its employees' slowdown in production, but only because the Board found that there was no evidence that the employees had actually engaged in a slowdown. The Board did not indicate any disagreement with the ALJ's premise that a unilateral change in "response to the economic pressure which was being brought to bear on negotiation process" is privileged.[23]

In this case, the September 5, 2000 layoffs and the subsequent layoffs and reductions in hours were, without a doubt, the employer's response to the Union's use of the economic weapon of the boycott. The Union's boycott activities represented a serious threat to Pictsweet's business. Pictsweet was faced with an immediate loss of 25% of its business. It could have either maintained its current production level and thrown product away or immediately reduced production with its concomitant layoffs and reduction of hours. Pictsweet chose the latter course of action and that choice seems to represent one of those "nonpermanent, stopgap or temporary measures" in the face of union economic pressure over which the NLRB has not required an employer to bargain. (Land Air Delivery (1987) 286 NLRB 1131, 1132, fn. 7, enf'd (D.C. Cir. 1988) 862 F2d 354, cert. den. (1989) 493 U.S. 810 and cases cited above.)

Based on the foregoing precedent, I find that Respondent was not required to bargain over the decision to reduce production and layoff and reduce the hours of its employees. Neither the UFW nor the General Counsel cited any case requiring bargaining over an employer's defensive response to a union's use of economic weapons. Apart from the NLRB strike cases, which offer some guidance in analyzing this situation, the Laclede court decision and the NLRB's Celotex decisions both hold that an employer need not bargain over its response to the union's use of economic weapons. I find the reduction of production and accompanying measures to be stopgap, emergency measures designed to continue Pictsweet's business. I do not find the layoffs or reductions in hours to be discriminatorily motivated, but a direct response to the Union's boycott activities. The layoffs and reductions in hours were, for the most part, carried out according to classification seniority; there is no allegation that the manner in which they were conducted was discriminatory in any way. Additionally, both at the time the UFW initiated its boycott activities and at the time Pictsweet responded, the parties continued to be engaged in collective bargaining, a factor, which was found to be critical in many of the cases discussed above. (See e.g. American Ship and Insurance Agents)

The UFW argues that even if the decision to reduce production, layoff employees, and reduce employee hours were privileged in some fashion, Pictsweet was required to bargain about the effects of that decision. The parties met on September 25, 2000, and did bargain about the layoffs and the manner of recalls. At that time, the UFW was on notice that production had been reduced, and layoffs and reductions in hours would continue to occur. The UFW could have requested bargaining over the continued reduction in hours, but chose not to do so. Since respondent bargained over the layoffs and recalls, there is no reason to believe that it would not have bargained over the other effects of the reduction of production.[24]

B. The Failure to Provide Information

The General Counsel contends that Respondent failed to provide information requested by the UFW during the course of collective bargaining negotiations; specifically, General Counsel contends that Respondent failed to provide profit sharing information requested by the Charging Party. On October 23, 2000, in a letter to Respondent's chief negotiator, Harry Stang, counsel for the UFW made a request for information regarding Respondent's profit sharing plan. (GC#23.) The information

requested included the following items:

1. Audited income statements and balance sheets with footnotes for 1996 through the present. Provide unaudited documents for the most recent period if audited documents are not available.

2. Income statements and balance sheets year to date for 2000 with forecasts for the current full-year and at least one additional year.

3. Monthly production levels, sales and profit (loss) figures for January 1996 through the latest available month in 2000.

4. Capital expenditure and depreciation figures for the periods described in requests 1 and 2.

5. A list of Pictsweet Mushroom Farms top five competitors, ranked by importance.

6. For each year from 1996 through the present, total annual labor costs and unit-labor costs for each of the following groups: (a) senior executives; (b) supervisors, foremen, or other non-bargaining unit hourly or salaried or employees; (c) employees represented by the UFW, broken down by major job classification.

7. Please provide the total number of individuals and full-time equivalents in each group, with total labor costs broken down into wages, pension contributions or contributions in lieu of pension, health insurance contributions, and other costs.

8. Please provide the amount of profit sharing bonus paid to each employee, and identify said employees, for each distribution of profit sharing funds during the period January 1, 1996 through the present.

9. Please identify the CPA(s) contemplated in your proposal as arbitrator of all disputes involving the profit sharing plan, and provide the following information regarding said CPA(s); education, qualifications, experience, and the history of financial dealings or involvement with Pictsweet Mushroom Farms;

10. All audit or work papers produced, reviewed or approved by the CPA(s) which mention or concern the profit sharing plan, which were generated or maintained with the period January 1, 1996 through the present.

11. Please explain the ascertainable measure of the employer's profit used in calculating profit sharing distributions.

12. Please explain all measures in place for any portion of the past 4 years, which ensured or allowed company verification and control or proper profit sharing distributions under the measure set forth in response to the previous request.

In response to that request, in a letter dated November 17, 2000, Respondent's negotiator asserted that Respondent was required only to provide a copy of its plan; any trust indenture or trust agreement pertaining to such plan; any group annuity, deposit, or administration or other insurance contract or policy relating to the plan; any application for an IRS determination with respect to qualification of the plan; and any and all other documents mailed to participants and filed with any government agency with respect to the plan. Respondent thus provided a copy of two pages of its Employee Handbook and information from Pictsweet's CPA regarding the profit sharing plan and information regarding the CPA firm. Pictsweet negotiator Stang relied on the NLRB's decision in Ironton Publications, Inc. (1989) 294 NLRB 853, in refusing to provide the additional information the UFW requested. (GC#23) It should be noted that Respondent had earlier provided a Ventura Farm Bonus Percentages Summary for the period 1994-2000, to the UFW. (GCX # 19, 21, 23)[25]

The UFW requested the extensive information set forth above due to its concern over the operation of the profit sharing plan which, according to the UFW, constituted the only new or additional wages that Pictsweet employees would receive under Respondent's proposed contract. (CPX #4)

Analysis and Conclusion
The Ironton decision does not constitute a limit on the information that may be relevant to an employer's profit sharing plan. In that case, the union had requested only certain documents, which the employer failed to provide. The NLRB found that the requested information was relevant to the collective bargaining negotiations, and the employer was ordered to provide the union with the information it had earlier, specifically requested.

The duty to bargain in good faith may be violated by the Respondent's refusal to furnish information relevant and reasonably necessary to the union's ability to carry out negotiations or to administer a collective bargaining contract. (Masaji Eto dba Eto Farms, et al. (1980) 9 ALRB No. 20; Kawano (1981) 7 ALRB No. 16; Detroit Edison Company v N.L.R.B. (1979) 440 U.S. 301, 303; 99 S. Ct. 1123, 155) The NLRB and the federal courts employ a liberal discovery-type standard for determining what constitutes relevant information. (Cardinal Distributing Co Inc. (1983) 9 ALRB No. 36, p. 4; NLRB v Acme Industrial Co. (1967) 385 U.S. 432, 437; Mary Thompson Hospital v NLRB (1991) 943 F2d 741, 745; and Bohemia, Inc. (1984) 272 NLRB 1128, 1129.)

In Ironton, the ALJ noted that in determining relevancy, it is "sufficient that the Union demonstrate that there is a probability that the desired information is relevant and that it would be of use to the Union in carrying out its statutory duties and responsibilities." The ALJ also noted that with respect to the information requested as to the profit sharing plan, "it is obvious that the information would be of use to the Union in framing its wage and retirement benefit proposals and also in evaluating and responding to the Respondent's proposals." (294 NLRB 853, 856)

In Circuit-Wise, Inc. (1992) 306 NLRB 766, the NLRB again considered the type of information relevant to an employer's profit sharing plan for the purposes of collective bargaining negotiations. There the employer had proposed a profit sharing plan funded by 2% of its pretax profits. The employer's plan was in response to the union's demand for a pension plan with a fixed level of contributions. After several discussions, the union requested financial documentation, including documentation of the employer's profits for a four-year period, and also further information regarding total labor costs, overhead costs, selling and general administrative expenses, interest, and other costs set out in a summary provided by the employer. The union also orally requested information as to how the company accounted for net profits and how it derived those figures.

When the employer said it would not provide the requested information, the union requested an additional ten categories of information directed at determining what the employer meant by pretax profits, how that figure was calculated, and whether that figure was subject to manipulation by the employer. The NLRB ruled that the employer was required to provide the information requested by the union.[26]

In Fairprene Industrial Products Company, Inc. 1994 WL1865744 (NLRB Div of Judges) during the course of collective bargaining negotiations, the union requested ten items of information including information regarding interest expenses for three years, management fees and/or corporate charges, extraordinary gains and income taxes; selling, general and administrative expenses, and other financial information. The union's financial analyst testified he needed this information to review the history of the profit sharing plan, including validating that the plan worked as described and to see how different accounting costs categories impacted the profit sharing plan. He also stated that he wanted to devise the most effective ways to improve the plan. The employer refused to supply the requested information contending inter alia that some of the requested information was not relevant. The ALJ rejected that argument, ruling

[T]he Respondent was at all relevant times including the

bonus plan as a part of its economic proposal package. The information sought was clearly relevant to the Union's

ability to assess the plan and decide intelligently whether

it wanted to drop the plan, keep the plan, or modify it in

some fashion. (ALJD, p. 10.)

Although the ALJ's decision does not carry precedential value, it offers further

guidance in this matter, supplementing the NLRB's Circuit ? Wise decision.

The ALRB has generally found that information relating to pension benefits and profit sharing plans are relevant to the collective bargaining process, and that the refusal to provide the requested information is a per se violation of section 1153(e) of the ALRA.

PH Ranch, Inc (1995) 21 ALRB No. 13; Masaji Eto, supra, 6 ALRB No. 20. Based on that general precedent and the foregoing NLRB precedent, I find that Respondent failed to meet its duty to provide accurate, complete, and timely information upon the request of the UFW, and the failure to provide the information requested by the Charging Party to be a violation of sections 1153(e) and (a) of the Act.[27]

C. Conditioning the Transfer of Solomon Martinez upon His Signing A Decertification Petition.

Solomon Martinez testified that at the end of November 2000, he approached Benjamin Andrade outside the restrooms and asked Andrade why he did not find him work in the maintenance department. (RT 79: 9-28; 80:1) Andrade told him that there would be work if Martinez would sign for no union. Martinez said that he would sign if he could get work. Andrade responded that if Martinez would sign then he would get work. (RT 80: 2-20; 81: 10-18) Martinez never signed the decertification petition and he remained in the position he occupied at the time of his conversation with Andrade, that of irrigator. Martinez said that other workers, who were anti-union, were being transferred to the maintenance department, which is why he approached Andrade for work. Martinez wanted work in the maintenance department because of the long hours that he had to work as an irrigator. (RT 88: 18-22; 90: 27-28; 91: 1-10)

Based on the testimony of general manager Ruben Franco, it appears that at the time of Martinez's conversation with Andrade, there was no supervisor or foreman in the maintenance department. Andrade was filling the position of lead man for the department, and in that position, according to Franco, he assigned work and directed employees in their work. (RT 656: 20-25; 657: 1-3) Another Pictsweet employee, Jesus Torres, stated that Andrade was working as the foreman in November 2000; that he handed out checks on Fridays, had a radio and gave orders to the maintenance crew. (RT 101: 21-28) Franco and Andrade testified that Andrade could not hire, fire, or discipline the workers of the maintenance department. (RT 555: 6-15; 953: 27-28, 954: 1-6)

Although Andrade denied having a conversation with Martinez about Martinez's transfer into the maintenance department (RT 950: 25-28), I do not find his testimony credible. Andrade was evasive in testifying about his role in the maintenance department while it was without a supervisor. He denied that he was a lead person; the most he would admit to was "helping them out" in the maintenance department. (RT 957: 7-10, 22-28; 958: 1-6: 961: 15-19) Andrade's testimony regarding his friendship with Martinez was brought forth for the purpose of impeaching Martinez, yet in light of his lack of credibility in testifying about his position in the maintenance department, I credit Martinez's testimony rather than that of Andrade regarding his relationship with Andrade and regarding the transfer to the maintenance if he signed the desertification petition.

Respondent introduced the testimony of Gilbert Oleos that there was no position in the maintenance department for someone of Martinez's general skills in November 2000. Oleos testified that only one person was hired into the maintenance department between

November 2000 and June 2001, and that person, Larry Gerald, had a certificate as an electrician. (CPX #69; RT 1050: 3-28; 1052: 7-10.)[28]

Analysis and Conclusions
Although Andrade had some of the attributes of a supervisor, e.g., he assigned work and gave orders to the maintenance crew (RT 656: 6-15), there is not sufficient information from which to conclude that he functioned as a statutory supervisor when he was the leadsperson in the maintenance department. However, that conclusion does not end the inquiry. The next question is whether Andrade was acting as an agent for Pictsweet in his role as either foreman or lead man.

Pictsweet may be held responsible for Andrade's unlawful conduct even if Pictsweet did not direct, authorize or ratify that conduct if Andrade had apparent authority to speak for PMF. (Vista Verde Farms v Agricultural Labor Relations Board (1981) 29 Cal. 3d 307; Frank Foundries Corporation (1974) 213 NLRB 391.) Such liability can attach if employees could reasonably believe that Andrade was acting on

behalf of Pictsweet, or if Pictsweet could have gained an improper benefit from Andrade's misconduct and has the ability to prevent future repetition of such activities or to remove the effect of such misconduct on the workers' exercise of their statutory rights. The test for employer responsibility/liability is from the viewpoint of the affected employees. An employer may be responsible even if it is "utterly unaware of the unlawful coercive actions of a subordinate." Superior Farming v Agricultural Labor Relations Board (1981) 151 Cal.App.3d 100. Here, Jesus Torres characterizes Andrade as a foreman; he assigned work, supervised work, and passed out checks; he had a radio like other supervisors. Martinez asked him for work, indicating his view of Andrade as a person of authority.

In Vista Verde, the Court relied on I.A. of M. v Labor Board (1940) 311 U.S. 72, 80; 61 S.Ct. 83, 85 L.Ed. 50) in which the Supreme Court upheld the NLRB's ruling that the employer was responsible for the actions of lead men who could not hire and fire, but exercised general authority over other workers, and so "were in a strategic position to translate to their subordinates the policies and desires of the management." See also Superior Farming v Agricultural Labor Relations Board, supra, and Paul W. Bertuccio and Bertuccio Farms (1979) 5 ALRB No. 5. Thus, even if there were no positions available, given Respondent's strong no union position?often expressed to its workers?and Andrade's position of apparent authority, Martinez could reasonably conclude that Andrade was acting on behalf of Pictsweet in offering more desirable work if Martinez would sign the decertification petition. I conclude that Respondent violated section 1153 (c) and (a) by Benjamin Andrade's offer to give Solomon Martinez work in the maintenance department if he signed a decertification petition.

D. Respondent's Employee Handbook and Its Direct Communication

With its Employees

The General Counsel alleged that Pictsweet's policy of a preference for

direct dealing with its employees rather than dealing with them through a third party,

as expressed in its employee handbook,[29] as well as its direct communications to workers,

constituted illegal direct dealing with employees and the solicitation of employee grievances. The General Counsel and the UFW argue that such a course of conduct undermined Pictsweet's employees' certified bargaining representative. The Pictsweet communications to its employees were as follows: April 2000 Report on Negotiations

(GCX # #); (2) August 28, 2000 memo re Loss of Vons' Business (GCX #6);

(3) September 11, 2000 memo re United Farm Workers' Boycott Against Pictsweet (GCX ##); (4) December 5, 2000 Report of UFW Threats Against Employees Vested Pension Rights (GCX #3); (5) December 21, 2000 Memo (GCX #3); (6) January 12, 2001 Memo re Decertification Election (GCX #3); and (7) January 18, 2001 Memo re Decertification Election Update (GCX #3).

The employee handbook was adopted by Pictsweet's corporate office in 1996. Although the section challenged by General Counsel and the Charging Party contains no threat of reprisal if employees opt for union representation, it does suggest solicitation of employee grievances: "Bring your questions and problems to your supervisor, your Human Resources Manager or your Farm Manager." And, it goes on to promise: "We promise to listen and give the best response we can." The challenged portion of the handbook was not adopted at a time when the Charging Party had a presence at Pictsweet or in reaction to UFW organizing activity at PMF.

The series of memorandum from Franco to Pictsweet employees cover a variety of topics, from the collective bargaining negotiations to the UFW boycott activities to alleged threats by UFW agents to take away workers' vested pension benefits to updates on efforts to by Pictsweet workers to decertify the UFW. None of these memoranda contains any threat of reprisal or promise of benefit. In their Post-Hearing Briefs, neither the General Counsel nor the UFW argues that any of the memoranda violate the Act.

Analysis and Conclusions
Given the General Counsel's and Charging Party's exclusive focus on the handbook provision, it appears that they have waived any argument that Respondent violated section 1153(a) by the distribution of the various memoranda set out above. In any event, since I do not find any threat of reprisal or promise of benefit in the memoranda, I do not find their distribution to Pictsweet employees unlawful. (See on this point, Proctor & Gamble Mfg. Co. (1966) 160 NLRB 334, 340.)

Turning to the employee handbook, the General Counsel did not contend at the hearing or in its Post-Hearing brief that Pictsweet initiated the "Employee Relations Policy" in response to any particular union activity or that any employee has been disciplined for violating the policy. Rather both the General Counsel and the UFW contend that by maintaining such a policy in its handbook, Pictsweet violates section 1152 of the Act because the policy interferes with, restrains, and coerces employees in the exercise of the rights guaranteed in section 1152 of the Act.

In Lafayette Park Hotel (1998) 326 NLRB 824, enf'd (DC Cir 1999) 203 F3d 52, the NLRB set out the appropriate inquiry for determining whether the maintenance of personnel rules violates section 8(a)(1): Does the rule reasonable tend to chill employees in the exercise of their Section 7 rights. (See also Adtranz ABB Daimler-Benz Transportation v NLRB (D.C. Cir 2001) 253 F3d 19, 25; Flamingo Hilton-Laughlin (1999) 330 NLRB No. 34, p. 3). In analyzing company rules or personnel policies, the NLRB considers the entire context of the case as well as the objective impact of the rule on employees. (Adtranz ABB Daimler- Benz Transportation v NLRB, supra, at 28.)

The NLRB has found unlawful employer rules/policies that prohibited (1) employees from discussing company affairs, activities, personnel or operations with unauthorized persons (Advance Transportation (1993) 310 NLRB 920, 925); (2) discussing hospital affairs and employee problems and wages (Pontiac Osteopathic Hospital (1987) 284 NLRB 442, 465, 466; and (3) criticizing company rules and policies so as to cause confusion or resentment between employees and management (Lexington Chair Co. (1965) 150 NLRB 1328, enf'd (4th Cir. 1966) 361 F2d 283, 287).

The NLRB cases discussing the maintenance of rules/policies do so in the context of balancing an employer's right to maintain discipline and employees' undisputed right to self-organization. Most of these cases go to the maintenance of rules such as those that limit employee solicitation or distribution of literature at the work place; limit discussion of wages or other personnel matters; limit disclosure of confidential business information; prohibit employees from making false or malicious statements about any employee, supervisor or the employer; or prohibit employees from being on the premises during their non-work hours. As noted above, the rules are analyzed by the NLRB in light of whether the rule can be said to reasonably chill an employee' exercise of section 7 rights. For example, in Lafayette Park, supra, the board held that a rule, requiring employees to leave the employer's premises immediately after the completion of their shift and not return until their next scheduled shift, would reasonably tend to chill employees in the exercise of their section 7 rights because it would limit an employee's right to engage in protected concerted activity on the employee's free time and in non-work areas.

In the above NLRB cases, the rules considered by the national board carry with them a built-in "threat of reprisal" in that violation of the rules can lead to disciplinary action. The NLRB's general counsel challenges the maintenance of rules that would tend to chill employees in the exercise of section 7 rights in order to ensure that employees can freely exercise those rights. The cases do not depend on a showing that the rules have been utilized to interfere with protected activity or that any union adherent has been disciplined.

The General Counsel and the UFW argue that Pictsweet's Employee Relations Policy comes within the ambit of the rules that the NLRB has found unlawful because the policy discourages employees' exercise of section 1152 rights, in particular, the right to join a union. Respondent argues that the provision of the handbook to which the General Counsel and the Union object is within the scope of section 1155 of the ALRA, which provides:

The expressing of any views, arguments, or opinions,

or the dissemination thereof, whether in written, printed,

graphic or visual form, shall not constitute evidence of

an unfair labor practice...if such expression contains no

threat of reprisal of promise of benefit.

Both the General Counsel and UFW object to that part of the policy stating that Pictsweet "prefers to deal directly with employees rather than through a third party..." and it is "Pictsweet's objective to operate this facility in such a way that you will not need a third party to intervene for you." (GCX #2) The UFW terms the policy invalid on its face.

Yet section 1155 of the Act clearly permits an employer to express its preference for "no union." (NLRB v Aluminum Casting & Engineering Co. (7th Cir. 2000) 230 F3d 286, 295 [The court found lawful the employer's statement in its handbook that its intention was "to do everything possible to maintain our company's Union-free status for the benefit of both our employees and (the company)].") And, although the policy arguably contains a solicitation of grievances, the NLRB observed in Uarco Inc. (1974) 216 NLRB 1, 1-2, that the solicitation of grievances is not prohibited under the act, it is only when such conduct is accompanied by the promise to correct those grievances, that 8(a)(1) is violated. Here, Pictsweet does promise to listen to employee complaints and "give the best response we can." Although this can be interpreted as a promise to remedy employee complaints, in the context of this case, I do not find it to be an unlawful promise of benefits. The statement is similar to that of the employer in Uarco; there the plant manager distributed a statement to employees in which he wrote: "I am asking you to believe that we can work together. I will make one promise that I will do my best." 216 NLRB 1,3. The NLRB ruled that the plant manager's statement was not unlawful.

Examining the Employee Relations Policy in context reveals, as noted above, that the policy was adopted in 1996, when the UFW did not have a presence at Pictsweet. Although the UFW continued to be the certified representative of PMF's workers, there do not appear to have been any collective bargaining negotiations in progress, and it does not appear that between 1996, and the union's request to bargain in December 1999, there was any contact between Pictsweet management and the UFW. Thus, when Pictsweet was urging employees to bring their complaints to management for a response, there is no record to suggest that there was any other way to attempt to resolve employee grievances.

Looking at whether an employee would reasonably believe that Pictsweet (1) is soliciting and promising to remedy employee grievances, thus bypassing the UFW, and (2) is threatening job loss if an employee supports the Union, I conclude that Pictsweet's employees would not reasonably interpret the "Employee Relations Policy" in that fashion. Thus, I find that the maintenance of the policy would not tend to chill employees in their exercise of their 1152 rights. My finding is premised on the following: (1) the policy was not adopted in response to any particular Union activity (see Armstrong Nurseries, Inc. (1983) 9 ALRB No. 53, pp. 8-9 and NLRB v Aluminum Casting & Engineering Co., supra, 230 F3d 286, 295); (2) neither the General Counsel nor the UFW introduced any evidence that any employee had been disciplined due to his/her disregard of this policy; and (3) when a group of employees sought to discuss the issue of layoffs directly with Ruben Franco on September 11, 2000, he told them that he was not able to deal directly with them (RT 215: 12-217). Moreover, for those workers employed at the time the policy was adopted, the provision could not have carried the interpretation urged by the General Counsel and the Charging Party, given the absence of the UFW at Pictsweet.

The cases cited by General Counsel and Charging Party do not compel a different result in the context of this case. For example, in Harris Teeter Super Markets (1993) 310 NLRB 216, the employer showed a proposed changed work schedule to its employees and proceeded to ask them about their reaction to the proposed changes, in advance of discussing the change in schedule with the union. Similarly, in Obie Pacific Inc. (1972) 196 NLRB 458, the employer called a meeting of employees in which a supervisor discussed changing the staffing requirements set out in the contract; the employer admitted that the purpose of the poll was to obtain the opinion of the employees to present to the union at an upcoming negotiation meeting. In Allied Signal Inc. (1992) 307 NLRB 752, the employer contacted employees directly to set up a task force to determine a smoking policy, without first contacting the union. Lastly, in Thill, Inc. (1990) 298 NLRB No. 90, the employer, at a meeting with employees, asked them directly what problems they had with their jobs; the board found that the company's president impliedly was promising to remedy those problems. Each of these cases involved situations in which the employers directly contacted employees without the knowledge of the union, with the result that the union's position as the workers' exclusive bargaining representative was eroded.

Other cases such as Coronet Foods (1991) 305 NLRB 79; Uarco Inc. (1974)

311 NLRB 833; DTR Industries, Inc. (1993) 311 NLRB 833; and The Sharing Community (1993) 311 NLRB 393, are cases involving very direct solicitation of grievances by employers in a pre-election period of union activity, with the promise (except in Uarco, Inc.) that the grievances would be addressed by management.

Electric Hose & Rubber Co. (1983) 267 NLRB 488 also involved active solicitation of employee grievances while union objections to a representation election were pending; in that case, management even remedied the problems identified by employees.

I find that the "Employee Relations Policy" in Pictsweet's employee handbook does not contravene section 1155 of the Act. The handbook provision would not reasonably be interpreted as containing a threat of reprisal or promise of benefits. It does not indicate that PMF will use illegal tactics to rebuff the Union. It would not reasonably tend to chill employees in their exercise of section 1152 rights. In the specific context of this case, I do not find it unlawful.

E. Breach of the Interim Agreement of September 25, 2000

The UFW and Pictsweet met on September 25, 2000, to continue collective bargaining negotiations. As noted ante, at that time, they agreed that any further layoffs and recalls would be conducted by classification seniority. They further agreed that if Pictsweet intended to use another method with respect to specific cases, "it would give notice of the facts and circumstances of such cases to the Union before finalizing a decision." (GCX #16, p.2)

The General Counsel and Charging Party contend that Pictsweet breached that agreement, thereby again making a unilateral change in Pictsweet's employees' terms and conditions of employment. As described above, a number of layoffs occurred after the parties reached this agreement. Members of the bubble/trash crew were laid off on September 29, October 2, and October 9, 2000. On September 24, 2000, Armando Cortes, a driver, was laid off. On November 15, 2000, a group of 12 pickers were laid off for one day.[30]

Analysis and Conclusions

Based on my review of the records, I found that it appears that of the 12 employees laid off on November 15, 2000, Andres Lugo (June 7, 1998), Eliseo Zavala

(August 6, 1998), Miguel Zavala (July 28, 1998), Fidel Melendez (August 2, 1998) and Pedro Alaniz (November 1, 1998) were laid off, while Jose G. Lopez's seniority date was August 24, 1999, and he was not laid off.[31] Nor were Angelica Valdez (May 24, 1999) Angueles Garcia (June 14, 2000) and Alejandra Garcia (June 14, 2000). (CPX #79, 94, and 106)[32]

Also, Raul Gutierrez was recalled after the September 5, 2000 layoff on

October 16, 2000. He had more seniority than Margarita Sanchez, recalled on October 7, 2000, and Erasmo Torres, recalled on October 7, 2000. Compare his seniority date of

August 31, 1999 with Sanchez's September 8, 1999 and Torres' October 4, 1999. (See CPX #81, but contrast with CPX #93; CPX #81 appears to be the record kept by the department supervisor and is presumably more accurate; see also CPX #163 for weeks ending October 7, 2000 and October 14, 2000.)

Charging Party and the General Counsel contend that Leonila Martinez and Yong Sim Macias of the bubble trash crew were laid off prior to Graciela Paniagua and Rosa

Magana, even though Martinez and Macias had more seniority. Olmos testified that Paniagua was on vacation until October 2, 2000 and Magana was on vacation until October 9, 2000, which is why they were not included in the September 29, 2000 layoff. Although Respondent had an explanation for the layoff out of seniority, there was no notice to the UFW of the need to deviate from seniority, as the parties had agreed.

Charging parties points out new hires of at least six employees in general labor, weigh master, and irrigator classification between October 23, 2000 and February1, 2002. Also, labor contractor employees worked for periods of time at Pictsweet during this period. However, the interim agreement does not appear to cover new hires or the use of labor contractor employees outside the classifications affected by the layoff. While I agree with the Union that it would have been a better practice to provide notice to the Union of open positions and to make those available to employees on layoff ,[33] Respondent's failure to do so does not appear to a violation of the interim agreement.

It is easy to see why Charging Party may have thought that there were more

layoffs out of seniority given the multiplicity of employee lists, coupled with the errors in the various employer-generated lists. (See e.g. CPX # 94, which includes the list for November 15, 2000. Also see Respondent's "seniority list" which shows Fidel Melendez with a seniority date of May 20, 1993, and Pedro Alaniz with a seniority date of November 24, 1995, CPX #106. The notice has the actual classification seniority dates of August 1998 and August 28, 1999, respectively.)

At the hearing, Respondent offered no explanation as to why the above workers were either laid off or recalled out of seniority. Respondent moved for the dismissal of

allegation. However, Respondent made this motion after it was well into the presentation of its case, on the very last day of hearing. (RT 1240: 15-28; 1241: 1) I denied the

motion as untimely. At that time, and at various other points in the hearing, Respondent alluded to its uncertainty as to which employees, if any, were laid off or recalled out of seniority. It did not take a lengthy review of the records to ascertain the facts I set out above. Respondent was on notice of the General Counsel's theory of the case. Given the small number of employees actually laid off, it seems to me that Respondent should have been able to ascertain whether any of those employees were laid off or recalled out of seniority.

This task was more complicated for Charging Party and General Counsel. Although they had anecdotal evidence from Pictsweet workers about new employees being hired when Pictsweet employees were still laid off, the documentary evidence provided by Respondent as to seniority was inconsistent, mistakenly identified, and not particularly accurate. It would seem that the parties could have resolved this portion of the case if Respondent had provided Charging Party with correct seniority information from the outset of this dispute.

Charging Party has asked that I draw an adverse inference from Respondent's failure to provide seniority lists for all departments, inferring from the fact that the lists were not supplied, that the information therein would have been unfavorable to Pictsweet. The testimony of Ruben Franco on February 15, 2002, at the unfair labor practice hearing was clear that each department supervisor maintained a seniority list. (RT 316:6-25, 317:1-3,319:21-24, 321:22-25, 322: 1; see also 325-330.)

I directed Respondent's counsel to obtain the lists with Franco's assistance and to provide them to the General Counsel and the Union on the following Monday. When the hearing commenced on Monday, counsel informed the parties and myself that, apart from Monroy's list of the pickers' seniority (CPX #79) and the seniority list for the packers (CPX # 80), no other department supervisors maintained written seniority lists. Franco corroborated counsel's statements, indicating that he assumed that each supervisor had a list with the department's classification seniority, but that, upon investigation, he found out that they do not have the lists in writing. (RT 345: 12-15.)

Based on the NLRB's decisions in Yeshiva University (1994) 315 NLRB 1245 and Champ Corp. (1988) 291 NLRB 803, 879, it appears that Respondent should have compiled for the UFW, the seniority lists for the departments that did not regularly maintain a written list. This is what was done in Champ Corp. when the General Counsel subpoenaed various job descriptions; the respondent denied that it had written job descriptions, but after receiving the General Counsel's subpoena, consulted with its leadmen and foremen and compiled the descriptions. Both Champ Corp and Yeshiva University are 8(a)(5) cases and deal with an employer's obligations in responding to requests from the union in its capacity as the bargaining representative of the employer's employees.

In this case, I decline to draw any adverse inference from Respondent's failure to compile and provide seniority lists from Pictsweet's other departments. First, I would note that virtually all layoffs and recalls were in three departments, picking, fresh pack, and bubble trash. The Union and the General Counsel were provided with the departmental seniority lists for the picking and fresh pack departments. (CPX #79 and 80). It was only the seniority list for the bubble trash department that was lacking.

That department contained only seven or eight persons. (RT 349: 4-5) Also,

Respondent did provide a general seniority list for all Pictsweet workers, compiled by Olmos (GCX #106), so that in fact, the Union did have the seniority information for that department as well. This is not a case in which Respondent ignored subpoenas or refused to turn over documents in its possession.

The cases cited by the UFW on the adverse inference issue are factually distinguishable. In NLRB v Shelby Memorial Hospital (7th Cir. 1993) 1 F3d 550, the respondent argued that significant financial losses led to scheduling changes about which it had failed to bargain with the union. The employer introduced evidence of financial losses in some months, but not in the months in which the scheduling changes were made. The national board rejected the respondent's justification for the scheduling changes, drawing an adverse inference from its failure to introduce evidence of any financial losses in the relevant months. In Auto Workers v NLRB (D.C. Cir. 1972) 459 F2d 1329, the court found that the national board failed to offer any convincing reason for failing to draw an adverse inference from the employer's refusal to produce payroll and hiring records subpoenaed by the General Counsel, which were determinative of the issue of whether respondent hired replacements for laid off union supporters. In Bannon Mills (1964) 146 NLRB 611, the NLRB ruled that the employer could not refuse to provide payroll and other employee records pursuant to a general counsel subpoena, and then object to the general counsel's introduction of secondary evidence regarding the size of the bargaining unit and whether the union enjoyed majority support of the unit. The national board also rejected the employer's belated attempt to introduce those records during its case.[34]

Respondent's record keeping does appear to be deficient, at best. For example, Olmos testified that the various lists that he compiled with a column entitled "Hiring Date" did not actually reflect the workers' hiring dates, but instead, reflected their seniority date. When asked why he did not entitle the column "seniority date", Olmos replied that his computer already had the heading "hiring date" and he did not bother to change it. (RT 1058: 9-14; 1131: 21-28; 1132: 1-17.) Additionally, there was no centralized tracking of departmental or classification seniority. (RT 1057: 24-27; 1129: 15-22.) Sometimes Olmos would note if an employee had transferred from another department, thus explaining differences in seniority and hiring dates, but other times he would not. It would appear that such an approach would make tracking seniority problematic to say the least.

The above layoffs out of seniority and the failure of Respondent to notify the Union of the deviation from seniority in the September 29, 2000 layoff in the bubble trash crew did result in a breach of the September 25, 2000 interim agreement. These unilateral changes also constitute a violation of section 1153(e).

F. The Failure to Give Pickers A Wage Increase in 2000

In Paragraph 20 of the complaint, General Counsel charges Respondent

with a violation of section 1153(e) and (a) because it failed to give the pickers the biannual wage increase that they had come to expect. The General Counsel introduced the testimony of employees Jesus Torres and Jose Garcia, both employed as pickers, who testified that they received a raise every two years. Although Torres was vague about the timing and the amounts, he was clear on his expectation that the pickers would receive a raise every two years. Both the General Counsel and Charging Party introduced documentary evidence showing that the pickers were given raises every two years beginning in 1990. (See GCX #11 and 12; CPX # 77, 101, 108.) The Charging Party also introduced the testimony of Jorge Rivera, who testified that during the course of negotiations, Ruben Franco had stated that the workers received wage increases every two years. (RT 764: 24-28; 765: 1-4, 22-27) Jorge Rivera also testified that during an August 30, 2000 telephone call, Franco again confirmed that the workers received a wage increase every two years. (RT 744: 10-24.) In a letter dated May 18, 2000, to Respondent's negotiator, Rivera also mentioned his understanding that the workers received a wage increase every two years. (GCX #20) Respondent apparently never corrected that understanding.

Respondent denied that there was any pattern to the wage increases for the pickers. Specifically, Franco testified that decisions about any wage increases were by Pictsweet management in the level above him and that wage increases depended on yield and the market price. Franco also denied ever mentioning at negotiations that the pickers received a wage increase every two years and denied that the subject was even mentioned during the course of the August 30, 2000 telephone call. (RT 1252: 24-28; 1253: 1-9; 1254: 13-18)

Analysis and Conclusion
The documentary evidence does indicate that the pickers received a wage increase every two years. (See GCX # 11 and 12; and CPX # 77, 101, and 108) Based on that evidence I find that during the 2000 negotiations, Pictsweet unilaterally decided to end its practice of providing wage increases every two years to its pickers.[35] The pickers' testimony establishes that the workers had an expectation of such an increase. Indeed, when the pickers' wages were raised in 2002, they were increased by $.02 per basket (RT 104: 18-22), which would be in line with a $.01 increase in 2000, and another $.01 increase in 2002. It appears that the increase was ordinarily $.01 per basket, but that it had been increased to $.02 in 1998, to compensate for the workers having to pick the bigger mushrooms at one time, going from mushroom house to mushroom house, thus taking longer to fill the baskets. (RT 567-571)

As for the conflicting testimony of Rivera and Franco, I do not credit Rivera's testimony that he asked Franco about the company's practice regarding wage increases

during the August 30, 2000 telephone call.[36] Rivera testified that Franco made the statements about the wage increases sometime in March and perhaps in October. His letter regarding the wage increases was dated May 18, 2000. (GCX #20). There does not seem any reason to believe that Rivera would have been asking Franco about the increases during the August 30, 2000 telephone call, which was ostensibly for the purpose of setting another negotiating session. I do credit Rivera's testimony that Franco mentioned the wage increases during the negotiating sessions-whether Respondent's negotiator told Franco to "shut up" when Franco made the statements is open to question. I do find it believable that Respondent's negotiator, who would realize the significance of such a statement by Franco, would caution Franco about such statements. Whether he said "shut up" or not, I find that Rivera's use of that phrase probably conveys the sense of Stang's annoyance with Franco, and, based on my observations of counsel during the course of the hearing, I do not find some such intemperate language hard to credit.

Neither Charging Party nor Respondent introduced any evidence to corroborate/contradict whether Franco mentioned the wage increases during the course of

negotiations. Respondent apparently had someone taking notes during the negotiating

sessions, and those notes were not introduced. (RT 1093: 9-19.) Also, Gilbert Olmos attended a number of the negotiating sessions, but no one asked him about any such statements by Franco, rather he was asked only whether he heard Stang tell Franco to "shut up." (RT 1093: 22-24; 1094: 10-19.) On the other hand, Jessica Arciniega testified that she attended the negotiating sessions, and neither party asked her about Franco's statements about wage increases. Granted Arciniega was translating during the negotiations, and she might not have heard Franco's remarks, but she was not asked.

Overall, I find that, as the parties were discussing wage proposals during the course of the negotiations, it does not seem unlikely, based on the documentary evidence, that Franco would have made the statement attributed to him by Rivera. Whether from PMF records or from remarks by Franco, Rivera had the impression, set forth in his letter of May 18, 2000, that the PMF employees received a wage increase every two years. (CGX # 20)

Unilateral changes in working conditions during bargaining are equivalent to per se violations of the duty to bargain since they constitute a refusal to negotiate or bargain in fact. (NLRB v Katz (1962) 369 U.S. 736, 743.) The discontinuance during negotiations of an established past practice of granting periodic wage increases constitutes a violation of section 1153(e). (East Maine Medical Center v NLRB (1st Cir. 1981) 658 F2d 1, 7-8) In this instance, I have found that Pictsweet had a past practice, developed since at least 1992, of increasing the wages of the pickers every two years. Respondent argues that the wage increases were discretionary, relying on Franco's testimony that wage increases depended on yield and market price. Yet, Respondent raised the pickers' wages in 1996, despite low yield. Although the precise timing of the increase may have varied by month, this does not preclude a finding that the raises were customarily granted every two years. (Stone Container Corp. [Amount of wage increase varied each year although it was always granted in April; the NLRB found no violation of 8(a)(5), only because the Respondent bargained with the union over the decision to eliminate the annual wage increases; East Maine Medical Center v NLRB, supra, 658 F2d 1, 8 [Annual wage increase was based on inflation and community wage patterns rather than a definite amount; court nevertheless found established practice of annual wage increase.] Daily News of Los Angeles (1994) 315 NLRB 1236, 1239-40, enf'd (DC Cir 1996) 73 F3d 406 [Board finds employer's discontinuance during negotiations of annual merit increase which ranged from 3% - 5% for those who received them, violates 8(a)(5) even though amount of increase was discretionary.]) Respondent was not free to alter that past practice by choosing not to provide such an increase in 2000 without violating section 1153(e).

ORDER

By the authority of Labor Code section 1160.3 of the Agricultural Labor Relations Act, the Agricultural Labor Relations Board hereby orders that Respondent Pictsweet Mushroom Farm, its officers, agents, labor contractors, successors and assigns shall:

1. Cease and desist from:

(a) Refusing to transfer or otherwise discriminating against any agricultural

employee in regard to hire or tenure of employment or any term or condition of

employment because he/she is engaged in concerted activity or union activity protected

by Section 1152 of the Act.

(b) Instituting or implementing any changes in layoff and/or recall policies

without first notifying and affording the UFW a reasonable opportunity to bargain with

Respondent concerning such changes.

(c) Unilaterally changing the terms or conditions of employment, in

particular eliminating established past practice of giving wage increases to pickers every two years, without first notifying and affording the UFW a reasonable opportunity to bargain with Respondent concerning such changes.

(d) Failing and refusing to provide relevant information requested by the

UFW for the purposes of collective bargaining.

(e) In any like or related manner interfering with, restraining, or coercing

employees in the exercise of their rights to self organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, and to refrain from any and all such activities.

2. Take the following affirmative actions which are deemed necessary to

effectuate the policies of the Act:

(a) Upon request, meet and bargain collectively in good faith with the

UFW, as the certified exclusive collective bargaining representative of its agricultural employees, with respect to such employees' wages, hours, and other terms of employment, and provide such relevant information as requested by the UFW to conduct the negotiations.

(b) Make whole for all losses in wages and other economic losses they

suffered, plus interest, all pickers who were not provided with a pay increase in 2000.

(c) Make whole for all losses in wages and other economic losses they

suffered, plus interest, all employees who were laid off or recalled out of seniority between September 5, 2000, and March 1, 2001.

(d) Preserve and, upon request, make available to this Board or its agents,

for examination, photocopying and otherwise copying all payroll records, social security payment records, time cards, personnel records, and reports, and all other records relevant and necessary to the determination, by the Regional Director, of the amounts of make whole and interest due under the terms of this order.

(e) Sign the Notice to Agricultural Employees attached hereto, and after its

translation by a Board agent into all appropriate languages, reproduce sufficient copies in each language for the purposes set forth hereinafter.

(f) Mail copies of the attached Notice, in all appropriate languages, within

30 days after the issuance of this Order, to all agricultural employees in the bargaining unit employed at any time during the period from July 1, 2000 through June 30, 2001, at their last known addresses.

(g) Post copies of the attached Notice, in all appropriate languages, in

conspicuous places on its property, for 60 days, the period(s) and place(s) to be determined by the Regional Director, and exercise due care to replace any Notice which has been altered, defaced, covered or removed.

(h) Arrange for a representative of Respondent or a Board agent to

distribute and read the attached Notice, in all appropriate languages, to all employees then employed in the bargaining unit, on company time and property, at time(s) and place(s) to be determined by the Regional Director. Following the reading, the Board agent shall be given the opportunity, outside the presence of supervisors and management, to answer any questions the employees may have concerning the Notice or their rights under the Act. The Regional Director shall determine a reasonable rate of compensation to be paid by Respondent to all nonhourly wage employees in the bargaining unit in order to compensate them for time lost during the reading of the Notice and the question-and-answer period.

(i) Notify the Regional Director in writing, within 30 days after

resuming agricultural operations, of the steps which have been taken to comply with the

terms of this Order, and continue to report periodically thereafter, at the Regional

Director's request, until full compliance is achieved.

Dated: June 19, 2002

__________________________________

NANCY C. SMITH

Administrative Law Judge, ALRB

NOTICE TO AGRICULTURAL EMPLOYEES

After investigating charges that were filed in the El Centro/Oxnard Regional Office of the Agricultural Labor Relations Board (ALRB), the General Counsel of the ALRB issued a complaint alleging that we had violated the law. After a hearing at which all parties had an opportunity to present evidence, the ALRB found that we had violated the Agricultural Labor Relations Act (Act) by failing to give the pickers a wage increase in 2000; by failing to provide information to the UFW which it needed for contract negotiations; by changing our agreement with the UFW to layoff and recall workers by classification seniority with first notifying and bargaining with the UFW, and by one of our leadperson's conditioning an employee's transfer on that employee's signing of petition to decertify the UFW.

The ALRB has told us to post and publish this Notice.

The Agricultural Labor Relations Act is a law that gives you and all other farm workers in California the following rights:

1. To organize yourselves;

2. To form, join or help a labor organization or bargaining representative;

3. To vote in a secret ballot election to decide whether you want a union to represent you;

4. To bargain with your employer about your wages and working conditions through a union chosen by a majority of the employees and certified by the ALRB;

5. To act together with other workers to help and protect one another; and

6. To decide not to do any of these things.

Because you have these rights, we promise that:

WE WILL NOT make any changes in your wages and when you receive wage increases and/or in the manner in which we layoff and recall workers without first notifying the UFW and giving it an opportunity to bargain about such changes.

WE WILL NOT refuse to provide information requested by the UFW that it needs for collective bargaining negotiations.

WE WILL NOT condition the transfer of any worker on his/her signing a petition to decertify the UFW.

WE WILL reimburse each of the pickers for all losses of pay and other economic losses

they have suffered as a result of our failure to provide a wage increase in 2000.

WE WILL reimburse any employees for all losses of pay and other economic losses

they have suffered as a result of their being laid off or recalled out of seniority between

September 5, 2000 and March 31, 2001

DATED: _______________ PICTSWEET MUSHROOM FARM

By: _________________________

(Representative) (Title)

If you have any questions about your rights as farm workers or about this Notice, you may contact any office of the ALRB. One office is located at 319 South Waterman Avenue,

El Centro, California 92243. The telephone number is (760) 353-2130.

This is an official notice of the Agricultural Labor Relations Board, an agency of the State of California.

DO NOT REMOVE OR MUTILATE

--------------------------------------------------------------------------------

[1] Although the complaint does not limit the failure to give periodic wage increases to the pickers, at the Prehearing Conference, Paragraph 20 was narrowed to include only the pickers.

[2] Respondent did not address the "unclean hands" defense in its Post-Hearing Brief, and thus appears to have waived it.

[3] At the hearing, I ruled that a defense based on agency misconduct during the investigation was not material or relevant to the Board's unfair labor practice case. (West Foods (1985) 11 ALRB No. 17, ALJD, p. 6; U.S. Tool and Cutter Co. (1964) 148 NLRB 20, 24; Illinois Electric Porcelain Co. (1941) 31 NLRB 101, 148, fns 7&8.) Pictsweet made no offer of proof as to any evidence that it wished to present, other than to argue that the complaint was issued when the company's request for further information as to one of the charges was pending before the Regional Director. (See RT 1223-1228) I rejected RX No. 19 on this issue. (RT 1237: 14-19) Respondent has not addressed this issue in its Post-Hearing Brief and thus appears to have waived this defense.

[4] Evidence on this point was not permitted at the hearing since such a defense, in the absence of decertification, is not recognized under the ALRA. Additionally, Respondent's offer of proof as to employee sentiment toward the UFW was based primarily on hearsay. (See RT 490-494) (See infra, pp 13-14.)

[5] Essentially the motion was denied because I found that summary judgment was not appropriate in this unfair labor practice proceeding as there were disputed material facts as to each of the allegations in the complaint. I also questioned whether summary adjudication is appropriate in cases that do not involve technical refusals to bargain, stipulated facts, or default matters.

[6] It should also be noted that the General Counsel and Charging Party had put on a prima facie case that the recalls by Pictsweet were out of seniority, see e.g. Raul Gutierrez who was recalled on October 16, 2000, although he had more seniority than Margarito Sanchez who was recalled on 10/7/00 and Erasmo Torres who was recalled on 10/7/00. There was a further basis for denial of Respondent's motion based on that showing. I can only speculate that Respondent did not move for dismissal after the close of General Counsel's case because Respondent's counsel believed that they needed the testimony of Gilbert Olmos to "explain" errors in the various layoffs, recall, and seniority lists.

[7] References to the hearing transcript will be to page number and line. Respondent's General Counsel's and Charging Party's exhibits will be identified as RX,GCX,CPX, number, respectively.

[8] Testimony from Ruben Franco regarding the number of packers was somewhat confusing. He testified that there were 18-20 packers on the average (RT 49: 24-27) and later that there were 40-45 packers (RT 549: 13-16); given my ruling on the jurisdictional questions, this discrepancy need not be resolved.

[9] The ALRB's regulations are found at Title 8 of the California Administrative Code, sections 20100 et seq.

[10] The General Counsel in its Post-Hearing Brief argues that this jurisdictional issue should be resolved in compliance proceedings so that the Respondent's documentary evidence in support of its jurisdictional argument can be reviewed. Although I agree with the General Counsel that the proceedings would have been expedited had Respondent directly raised the issue of the status of the packers at the pre-hearing conference, nonetheless, the General Counsel had ample opportunity to examine Franco as to the purchases from outside growers and/or to review his testimony with PMF workers who would be in a position to know whether Respondent grows any of the specialty mushrooms that it ships. I therefore reject that suggestion.

[11] See West Foods, Inc. (1985) 11 ALRB No. 17. West Foods was a predecessor to PMF.

[12] Those four were Jose Sanchez, Cecilia Rodriguez, Maria Palomino, and Guadalupe Vega.

[13] There is no reason that Arciniega would lie about from whom she received the notice and her testimony is consistent with her earlier declaration in which she also stated that she received the notice from some PMF workers. Franco did a declaration regarding the August 28th notice and never mentioned that he had given the notice to Arciniega. At the hearing he testified that he forgot that he gave the notice to Arciniega until the morning of the hearing. I do not believe that Franco would have just forgotten that he gave the notice to Arciniega when this point was so crucial to Respondent's defenses. I also believe that he would have provided the English and Spanish versions had he given a copy of the memorandum to Arciniega, yet she faxed only the Spanish. Additionally, I do not credit Franco's testimony that he was the only person at Pictsweet with a copy of the August 28th memorandum. I find it hard to believe that Olmos and the other supervisors were not given copies. Respondent misrepresents Monroy's testimony; he testified that he distributed the memo to the pickers on Friday, September 1st. There was no testimony how or when the other employees were given copies. It is possible that Franco confused the August 28th notice with the September 5, 2000 layoff notice that he did give to Arciniega.

I also credit Arciniega's testimony that she was not at PMF on August 28, 2000. I do not credit the testimony of Rosario Salinas and Maria Ayala. I found them to be hostile to Arciniega and to the UFW and generally their testimony generally to be lacking in credibility. I found it disturbing that counsel for the UFW saw and heard Ayala telling Salinas about the questions she was asked. Ayala denied that she discussed her testimony with Salinas, but I do not credit that denial. Moreover, they prepared declarations about their observations of Arciniega in November 2001, well over a year after the event, ostensibly at no one's request.

[14] Those in the bubble trash crew laid off included Lilia Casarez on September 9, 2000; Leonila Martinez, Yong Sim Martinez, Maria Vasquez, and Claudia Avalos on September 29, 2000; Graciela Paniagua on October 2, 2000 and Rosa Magana on October 9, 2000.

[15] The note on CPX #90 indicates that Davila was on medical leave and was laid off because he did not return from that leave.

[16] With respect to the packers, see CPX # 91.

[17] Those workers included: Erasmo Torres, Raul Gutierrez, Alfredo Macias, Benito Torrez, Jesus Gonzalez, Miguel Yepez, Pedro Alaniz, Eliseo Zavala, Fidel Melendez, Silvano Sandoval; and Andres Lugo. (CPX # 94)

[18] There was little testimony about the May 2000 layoffs. Rivera testified that as far as he was aware, the UFW never filed any ULP charges regarding the May 2000 layoffs. (RT 1189: 24-25; 1190: 3-4, 11-12.) Franco testified that the UFW never filed any ULP charges prior to September 2000. (RT 1250: 6-17.) He also testified that he had not notified the UFW regarding any layoffs in 13 years. (RT 192: 7-9)

[19] I credit Rivera's testimony on this point because he convincingly explained that he was frequently on the road in his capacity as the UFW's chief negotiator and that he carried with him voluminous papers from various negotiations and he had no clerical help until September 2001, when a clerical was hired who organized all of his documents in separate binders for each set of negotiations. He testified that in reviewing documents in preparation for the unfair labor practice hearing, he found Araniega's August 28, 2000 fax and forwarded it immediately to the UFW legal department. (RT 817-821)

[20] Southwestern Portland Cement Co. (1988) 289 NLRB 1264 cited by Respondent included extensive discussion of the course and content of the parties' negotiations, and is not comparable to this proceeding.

[21] Rivera and Franco spoke by telephone on August 30, 2000; Rivera said he contacted Franco to set up another negotiation session but apparently one was not set up, and Rivera later contacted Stang.

[22] The UFW argues that the strike cases are not applicable because in those cases bargaining would place the Union in a serious conflict of interest, caught between vigorously representing replacement workers and perhaps undermining its own strike objectives. It seems that the UFW faces the same sort of conflict in this situation, caught between the requirements of good faith bargaining over layoff and reductions in hours and the objectives of its boycott activities, which like a strike, are aimed at curtailing PMF's operations. The Union argues that to subject an employer to prolonged bargaining in a strike situation would nullify the employer's right to hire replacements. The same is true in this situation. To subject Pictsweet to prolonged bargaining over the reduction of production and layoffs would perhaps nullify the employer's right to continue his business.

[23] See also Charles Malovich (1983) 9 ALRB No. 64, cited by the ALJ in St. Supery, but which depends more on a business necessity defense that a privileged response to the union's use of any economic weapon, and Mario Saikhon (1982) No. 88, pp. 25-30, which includes an extensive discussion of lockouts in the context of the bargaining process.

[24] Charging Party relies on Beverly Health and Rehabilitation Services, Inc. (2001) 335 NLRB No. 54 to argue that the NLRB's striker replacement cases are not apposite. However, in that case the employer was not justifying its unilateral actions as a defensive response to the union's use of the strike. Rather, the employer defended its myriad changes based on a management rights clause in an expired contract, a defense that the NLRB rejected. Also, it appears from the board and ALJ decisions that the unilateral changes were made by Beverly before the union even gave notice of its intention to strike. The employer was not taking defensive action in the face of the Union's resort to economic weapons.

[25] Respondent took the position that it was not required to provide the requested financial information since Pictsweet's ability to pay was not at issue. (GCX #23)

[26] Even if the Charging Party's request here was broader than that in Circuit-Wise, Inc., supra, Respondent never attempted to narrow the scope of the Union's information request or raise any issue as to the confidentiality of the materials sought. (See A Plus Roofing (1989) 295 NLRB 967, 972, fn. 7., remanded on other grounds by NLRB v A-Plus Roofing (9th Cir. 1994) 39 F3d. 1410)

[27] I agree with Respondent that Item No. 5 of the Information request does not appear relevant to the profit sharing plan or the issue of employee compensation. However, Respondent's additional contention that it was not given notice of what information was still sought by the Union (Post-Hearing Brief, p. 46) is little short of astounding. The General Counsel introduced the letter of UFW counsel of October 23, 2000. (GCX #23) and the parties discussed the exhibit at the time it was admitted. (RT 172-176)

[28] It should be noted that Fernando Mendez transferred from irrigator to boiler tender in the maintenance crew on October 16, 2000. (CPX #69) Martinez testified that others had transferred into the maintenance department around the time he asked Andrade for work. (RT 87: 3-7)

[29] The challenged portion of the handbook is entitled "Employee Relations Policy" and provides: "Pictsweet prefers to deal directly with its employees rather than through a third party not familiar with what is happening in its plant. It is Pictsweet's objective to operate this facility in such a way that you will not need a third party to intervene for you. A third party did not get you your job, neither can a third party guarantee that you will keep your job. We must work together with mutual respect. By doing so we are all more secure in our jobs. From time to time, we will encounter problems. All of us will be better off working things out among ourselves without outside intervention. Bring your questions and your problems to your supervisor, your Human Resource Manager or your Farm Manager. We promise to listen and give the best response we can. Use the complaint procedure outlined in this book if you wish. We accept our responsibility to provide you with working conditions, pay and benefits that are fair and equitable." (GCX #2)

[30] Packers were also laid off after the agreement was reached, but due to my ruling on the jurisdictional question, their layoffs will not be considered herein.

[31] Even though Jose G. Lopez does not appear on the layoff list, it does not appear that he worked on 11/15/00 (see CPX # 163, PMF 8944). There is no way to know why he did not work that date. Respondent argues that

CPX #163 should be disregarded since the reason why a worker didn't work on any particular day is not indicated. Disregarding CPX #163, certainly leads to the conclusion that Lugo, the Zavalas, Melendez and Alaniz were laid off out of seniority.

[32] Andres Lugo is not listed on the February 9, 2001 seniority list provided to the UFW by PMF (CPX #106.) Olmos testified that this list was prepared from the payroll records for that week and rather incredibly, it not include any employees out on vacation, sick leave, layoff, or leave of absence. (RT 1053: 14-28; 1054: 1-25.)

[33] At least one employee on layoff after September 5, 2000, Bernardo Montenegro, applied for one of the vacant positions in one of the incentive crews and was hired into that position. There may have also been a failure to post vacant positions in the incentive crews, but such failure were not covered by the interim agreement. Charging Party argues that new hires were covered by the September 25, 2000 interim agreements. (Post-Hearing Brief, p. 40) Yet the parties' correspondence (GCX # 16) and Rivera's testimony do not bear out that contention. Rivera first testified in response to a leading question from the General Counsel.

Q: So, was there a discussion concerning new employees during that time period?

A: No.

(RT: 757: 20-22.) Rivera then went on in response to another question that it was his understanding that if a new employee could be hired, it would be a violation of the agreement. There was no followup as to why he had that

understanding when the hires--especially in other departments--were not discussed.

[34] See Champ Corp., supra, 291 NLRB 803, in which the NLRB declined to draw an adverse inference from the union's failure to turn over notes taken at union meeting when it appeared that union made good faith search for notes and produced evidence from which it could reasonably inferred that the notes could have been inadvertently destroyed or misplaced.

[35] I hereby deny Respondent's request for administrative notice of Charge No. 02-CE-6-EC(OX). Evidence Code section 452 permits judicial notice of official acts, which the charge is not. While the UFW's filing of that charge may be a fact that is not reasonably subject to dispute, and thus is a subject of permissive judicial notice, I find that the charge is not relevant to the issues of this case and that Pictsweet has not provided the other parties with sufficient notice to meet the request. For those reasons, I deny the Request.

[36] I find it unnecessary to resolve the conflict between Rivera's and Franco's version of the conversation with respect to Franco's claim that Rivera asked for a private meeting with Franco. (RT 1253: 13-21) Rivera denied that he made that suggestion and credibly testified that it was UFW policy that union negotiators may not meet individually or in private and that the negotiating committee had to be present at all times. (RT 830: 13-18.) Franco made this same claim in a letter to Rivera dated August 30, 2000, to which Rivera did not respond, but the letter specifically stated that Rivera was to maintain contact only with Stang. I do not credit all of Rivera's testimony because at times he seemed evasive and unwilling to answer Respondent's questions, though he was ill during the hearing and had difficulties hearing the questions propounded to him. Also in many instances, the form of the questions could certainly have been simpler. Nor do I credit all of Ruben Franco's testimony. He was an interested witness, who at times changed his testimony, apparently so that it would be more in line with Respondent's defenses.