Beyerl Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1975

221 N.L.R.B. 710 (N.L.R.B. 1975)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beyerl Chevrolet, Inc. and International Association of
Machinists and Aerospace Workers , District No.
63, AFI^-CIO. Cases 6-CA-7528 and 6-CA-7529
November 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 16, 1975, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
We agree with the Administrative Law Judge that
Respondent's unwaivering attempts to limit the
scope of the service department bargaining unit by
excluding any employees working less than 31 hours
a week evidence an intent to erect roadblocks to any
agreement . In the face of two Board orders that it
bargain for an appropriate unit of service department
employees, and an absence of any agreement by the
Union that the unit be so limited, Respondent's
inclusion of language which arbitrarily limits the
scope of the unit in any of its bargaining proposals
shows a reluctance on its part to attempt to reach a
collective-bargaining agreement. We find that Re-
spondent's actions constituted bad-faith bargaining
in violation of Section 8(a)(5) and (1).
In the section of his Decision entitled "Remedy,"
the Administrative Law Judge required, inter alia,
that Respondent reimburse the Charging Party for
out-of-pocket litigational expenses incurred in this
proceeding, as well as for organizational expenses
which may be incurred by the Charging Party in
regaining the majority status it may have lost.
Although we adopt the other provisions of the
Administrative Law Judge's remedial order, we do
not believe that the circumstances of this case
warrant such reimbursement of expenses.2 We will
therefore modify the Order to that extent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
221 NLRB No. 113
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Beyerl Chevrolet, Inc., Pittsburgh, Pennsylvania, its
officers, agents, successors, and assigns, shall.take the
action set forth in said recommended Order, as
herein modified:
1. Delete paragraph 2(d), and reletter the subse-
quent paragraphs accordingly.
2. ' Substitute the attached notice for that of the
Administrative Law Judge.
i Member Jenkins agrees with his colleagues that Respondent's
insistence upon a liquidated damages penalty provision violates Sec 8(a)(5)
and (1) of the Act However, he does not adopt the general statement of the
Administrative Law Judge ,that a "performance bond" for the payment of
moneys due is a nonmandatory bargaining subject
2 Although in fn 16 of his Decision the Administrative Law Judge notes
Union Representative Bold's concession that the Union had no members
among Respondent's employees by April 1974, the evidence does not show
the Union's membership theretofore , as contrasted with majority status We
therefore have before us no showing of loss of membership . Accordingly, in
adopting the Administrative Law Judge 's remedial order concerning
furnishing the Union with a list of employees and the reasonable and
adequate access to bulletin boards , we rely on the serious and continuing
nature of Respondent 's unfair labor practices. Further , there is no showing
the Union had any litigational or organizational expenses
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence, the National Labor Relations
Board has found that we violated the law and has
ordered us to post this notice and abide by its terms.
We accordingly assure you that:
WE WILL NOT violate these rights of yours.
WE WILL bargain collectively in good faith with
International Association of Machinists and
Aerospace Workers, District No. 63, AFL-CIO,
as the exclusive bargaining representative of our
employees in each of the following collective-
bargaining units, and embody in a signed con-
tract any agreement reached:
a. All service department employees at
our Monroeville, Pennsylvania, dealership
including all auto mechanics, body and
fendermen, apprentices, helpers, lubricators,
lot boys, reconditioners, partsmen, parts
truckdnvers and car jockeys; but excluding
all office clerical on employees , salesmen,
watchmen and guards, professional employ-
ees and supervisors as defined in the
National Labor Relations Act.
b. All new and used car salespersons
employed at our Monroeville, Pennsylvania,
BEYERL CHEVROLET, INC.
facility; excluding all other employees,
service department employees, office clerical
employees and guards, professional employ-
ees and supervisors as defined in the
National Labor Relations Act.
WE WILL NOT insist that bargaining unit
employees working part time be excluded from
collective-bargaining coverage.
WE WILL NOT fail or refuse to provide, or to
make reasonable provision for providing, inform-
ation to said Union concerning assets, funding,
and other information it needs about our pension
plan to enable it to bargain intelligently with us
on that matter.
WE WILL NOT insist that any collective agree-
ment shall contain a liquidated damages penalty
provision against the Union to indemnify us in
case of any strike or breach of that agreement.
WE WILL NOT place into effect any wage
increase or other change in terms or conditions of
employment of employees in the bargaining units
without bargaining in good faith with the Union
in regard thereto, or without giving the Union
reasonable advance notice and adequate oppor-
tunity to bargain with us about it; but this will not
affect any wage increase or economic betterment
heretofore placed into effect.
WE WILL NOT engage in surface bargaining or
other collective bargaining not in good faith,
without real intention of reaching agreement with
the 'Union as your collective-bargaining repre-
sentative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their right to self-organization; to
form, join, or assist any labor organization; to
bargain collectively through representatives of
their own choosing; to engage in concerted
activities for the purposes of collective bargaining
or other mutual aid or protection; or to refrain
from any and all such activities, except to the
extent that such right may be affected by a lawful
Union shop agreement requiring membership in a
labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the National
Labor Relations Act as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
WE WILL, upon request, promptly furnish the
Union with lists of our employees in the above
units, with names, home addresses, job classifica-
I The consolidated complaint, dated October 25, 1974, grows out of a
charge filed in each case on May 31, 1974.
2 As corrected in accordance with General Counsel's unopposed motion
711
tions, dates of hire, and rates of pay, and keep
such lists current monthly.
WE WILL, upon request, furnish reasonable
access to the Union to bulletin boards upon our
premises, for a period of 6 months, so that the
Union may communicate with employees in the
above collective-bargaining units.
BEYERL CHEVROLET, INC.
DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding i (Beyerl III) under the National
Labor Relations Act as amended, 29 U.S.C. Sec. 151, et
seq. (Act), was heard by me in Pittsburgh, Pennsylvania, on
March 6, 1975, with all parties participating throughout by
counsel or other representative, who were afforded full
opportunity to present evidence and arguments, and also
to file briefs which, after extension of time upon request of
counsel, were received on April 17, 1975. Record and briefs
have been carefully considered.
The principal issues presented are whether Respondent
Employer has violated, and is continuing to violate,
Section 8(a)(5) and (I) of the Act through (1) insisting that
bargaining unit employees working less than 31 hours per
week be excluded from the coverage of the collective
agreement; (2) failing and refusing to provide its employ-
ees' Board-certified collective-bargaining representative
with requested essential information concerning assets and
funding of Respondent's pension program covering bar-
gaining unit employees, thereby precluding informed and
proper bargaining by the employees' representative; (3)
insisting to impasse that any collective agreement include a
liquidated damages penalty provision in case, of breach
(strike or slowdown) by the Union; (4) placing into effect
unilaterally a wage increase to bargaining unit employees;
and (5) bargaining in such a manner as to preclude
consummation of an agreement.
Upon the entire record2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION
At all material times, Respondent Beyerl Chevrolet, Inc.,
has been and is a Pennsylvania corporation, engaged in
retail sales and service of automobiles at and from its
Monroeville, Pennsylvania, premises, where during the
representative year immediately preceding issuance of the
consolidated complaint its gross volume of business
exceeded $500,000, and where during the same period it
received goods and materials, directly in interstate com-
merce from locations outside of Pennsylvania, valued in
excess of $50,000.
(undated, but accompanying his posthearing brief) to correct transcript,
which is hereby granted.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times the Charging Party Union (IAM District 63 or
Union) has been and is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background (1970-73) 3
Respondent Employer, Beyerl Chevrolet, Inc., is an
automobile dealership near Pittsburgh, Pennsylvania,
whose president is Jack Grimes, vice president is Jack
McTigue, and sales manager is Jack Stockman. Two
separate collective-bargaining units of Respondent's em-
ployees are, here involved: (1) service department,4 and (2)
sales department.5
An organizational campaign was started among Respon-
dent's employees by IAM District 63 around October 1970.
In December 1970-January 1971 and continuing through
March 1971, amidst ongoing union organizational activity
including meetings, Respondent engaged in a wide
spectrum of acts of interference, restraint, and coercion of
its employees in violation of Section 8(a)(1) of the Act.
These unlawful acts included interrogation of employees
concerning their and fellow employees' protected concert-
ed activities; giving employees the impression that their
protected concerted activities were under surveillance;
making veiled threats of layoff or other reprisals in case of
unionization; threatening loss of fringe economic benefits
(paid uniforms and hospitalization) in case of unioniza-
tion; soliciting and remedying employee complaints;
granting additional fringe benefits (added holiday) to
discourage union affiliation; proscribing employee move-
ments and use of bulletin boards to impede unionization;
and establishing an employer-sponsored and dominated
committee, including foremen as well as rank-and-file
employees, to handle grievances. When the Union (through
its Representatives Bold and Schloer) on February 10,
1971, presented to Respondent's then president, Jack
McTigue, representation credential cards signed by a
majority of Respondent's service department employees,
McTigue declined to look at the cards or to recognize the
Union but referred the union representatives to Respon-
dent's legal counsel. Unable to reach the, latter after several
attempts, Union Representative Bold on February 11,
February 24, and March 2 wrote McTigue by certified
mail, renewing the Union's request for recognition and
bargaining on behalf of Respondent's service department
employees. Each of these letters was returned to the Union
marked "Refused" or "Unclaimed." Against this back-
ground of events, Respondent refused to recognize or
bargain with the Union in response to any of these
3 Based in part on adopted findings of Adnunistrative Law Judge Boyls
in Heyerl Chevrolet, Inc, 199 NLRB 120 (1972), Case 6-CA-5441, and of
Administrative Law Judge Ordman in Beyerl Chevrolet, Inc, Case 6-CA-
6769, March 4, 1974 (not reported in Board volumes). These cases were
called to my attention during the hearing and are officially noticed here
4 I.e., "All service department employees at Respondent's Monroeville,
Pennsylvania, dealership including all auto mechanics, body and fender-
men, apprentices, helpers, lubricators, lot boys, reconditioners, partsmen,
parts truckdnvers and car jockeys, but excluding all office clerical
demands, resulting in the filing of unfair labor practices
charges against it on March 29, 1971, the issuance of a
complaint by the Board's Regional Director for Region 6
on October 29, 1971, and a hearing of the issues on
January 11-13, 1972, before Administrative Law Judge
Fannie M. Boyls, who on April 19, 1972, issued a Decision
sustaining the charges, finding Respondent to be in
violation of the Act as aforedescnbed, and not only
ordering it to cease and desist from further violating its
employees' rights but also - in view of the aggravated
circumstances and Respondent's successful dissipation,
through its tactics, of the Union's majority status, and the
unlikelihood that a fair election could be held in the
foreseeable future - under authority ofN.L.R.B. v. Gissel
Packing Company Inc., 395 U.S. 575 (1969), to recognize
and bargain in good faith with the Union as' collective-
bargaining representative of the service department em-
ployees. On September 19, 1972, the Board affirmed
Administrative Law Judge Boyls' Decision and adopted
her recommended Order (199 NLRB 120; Beyerl I).
Following the Board's Order of September 19, the parties
met for collective bargaining on November 3, 1972, at
which time the Union presented a proposed contract to
Respondent. McTigue (then Respondent's vice president)
announced to Bold (negotiating for the Union) that he
(McTigue) was "dealing from -a position of strength
because he doubted that a majority of the employees were
supporting the Union," and he also commented that he
regarded union security (which the Union was proposing)
as "a moral issue and that no one should be required to
join a union" ((Beyerl II), March 4, 1974, Case 6-CA-
6769). Following a union request, on December 21, 1972,
Respondent presented to the Union a 12-pagt, contract
proposed by Respondent (Joint Exh. 6), and the Union
supplied the Employer with a 65-page pamphlet consisting
of the IAM labor-management pension plan. It is to be
noted that the Union at this time represented only
Respondent's service department employees. It is further to
be noted, however, that notwithstanding the Union's
representation of the bargaining unit as above defined (fn.
4, supra ), and required by the Board's September 19, 1972,
bargaining order, the Employer's proposed,contract (Joint
Exh. 6) specified that it recognized a unit consisting of only
"full time and permanent service department employees
.... Part time employees are those regularly working
fewer than 31 hours in a single workweek, and such part
time employees are not covered by this agreement.
Temporary and summer employees are not covered by this
agreement." (Joint Exh. 6, art. 1.2). Article 5 of the
Employer's proposed contract stipulates: "The parties
recognize the constitutional right of employees to belong to
or refrain from belonging to a union.,Therefore, neither the
Company nor the Union will discriminate in any way
employees, salesmen , watchmen and guards , professional employees and
supervisors as defined in the [National Labor Relations ] Act " Respondent
concedes the appropriateness of this unit for collective-bargaining purposes
5 I e , "All new and used car sales persons employed at the Respondent's
Monroeville, Pennsylvania , facility; excluding all other employees, service
department employees , office clerical employees and guards , professional
employees and supervisors as defined in the [National Labor Relations]
Act." Respondent concedes the appropriateness of this unit for collective-
bargaining purposes
BEYERL CHEVROLET, INC.
against any employee by reason of his or her exercise of
that right."6 Article 6 states that "The Company may, in its
business discretion, subcontract any job or work ,to any
union or non-union shop"or subcontractor." Article 7 of
the Employer's proposed collective agreement is captioned
"Grievance Procedure." After defining a "grievance" to be
"any dispute" between Company and Union or Company
and any employee, concerning "enforcement" as well as
"interpretation" of the agreement; article 7.3 provides:
The grievance, procedure and arbitration provided
hereinafter shall constitute the sole and- exclusive
remedy to be utilized by the parties for the determina-
tion, decision, adjustment or settlement of any and all
grievances, whether or not either party considers the
dispute as a material breach of this agreement. Strikes,
slowdowns, lockouts and picketing in any form are
specifically prohibited, and the Union will pay to the
Company a forfeited damages penalty of $1,000 for the
'first hour (or any part thereof) of any strike or slowdown,
and $750 per hour for each additional hour -thereafter
(based only on a 7:00 A.M. to 9:30 P.M. working ' day).
Failure of the Union to pay this penalty in cash or certified
funds within 24 hours after operations are resumed will
render this entire agreement null and void. [Emphasis
supplied.]
Proposed article 30, "Classifications and Wages," is blank
and states:
Deferred for further' bargaining on economic matters.
The Employer's proposed agreement concludes with a
sweeping management prerogatives provision.
As indicated above, at the same time (i.e., December 21,
1972) the Employer offered this agreement to the Union,
the Union supplied the Company with a copy of the
6 Cf Sec 8(a)(3) of the Act, the proviso to which stipulates that "nothing
in this Act, or in any other statute of the United States, shall preclude an
employer from making an agreement with a labor organization . . to
require as a condition of employment membership therein on or.after the
thirtieth day following the beginning of such employment or the effective
date of such agreement, whichever is the later " Although this proviso is
inapplicable in certain-so-called "sight to work" States, since Pennsylvania
is not such a _State the proviso is applicable there, While a ;Pennsylvania
employer is not under obligation to agree to such a proviso in the contract,
neither is he free to insist that a union agree to calling that which the Act
permits , "discnmmat[ionI." All the employer need do is not agree to the
inclusion in the contract of a,provision giving effect to the proviso.
r At the hearing, there were received in evidence a letter to McTigue
from MacKinnon. Company of Wayne, New Jersey, Respondent's "Benefit
Plan Advisors," dated February 20, 1973 (Resp Exhs. 5 & SA), a further
such letter dated May 7, 1973 (Resp Exh 6), and a third such letter dated
May 10; 1974 (Resp' Exh 7), regarding Respondents "pension plan." The
February 20, 1973, letter (Resp Exhs -5 & 8A) states that MacKinnon had
"finally secured a brochure which sets forth the provisions of the P A.A
Pension Plan applicable to your eligible employees," and in general and
vague terms states that "Your plan is the $3 00 plan which means, $3 00 of
retirement income credit per'month for each eligible employee for each year
of Plan coverage (to a maximum of25 years)" and that "We are planning to
review the P A A. Pension Plan in, the near future and any recommenda-
tions will be brought to your attention." McTigue testified at the instant
hearing that he was `not sure" as to whether, he supplied Union
Representative Bold with a copy of this The May 7, 1973, MacKinnon
letter to McTigue (Resp. Exh. 6) states that it cannot understand why
McTigue did not receive 'April 26 MacKinnen letter "regarding the
information you requested relative to the pension plan" and encloses a copy
713
Union 's pension plan. So far as the Employer 's proposed
agreement (Joint Exh. 6) is concerned, its only reference to
the subject of pension , is, to be found in article 26 of , its
proposed agreement , which speaks only of "the Pension
Plan, or [its] equivalent[s], in effect at-the time of execution
of this agreement ." The Union 's pension plan (G .C. Exh. 2)
is a comprehensive pension program , with portability,
vesting, survivorship, lump-sum option , and other features.
It is employer-funded , trusteed under an agreement and
declaration' of trust , and is jointly administered by union
and employer trustees . The funding , investments , disburse-
ments, and asset picture of the IAM labor -management
pension fund are disclosed in detail in its annual report for
1972, contained or reprinted in the April 5, 1973, issue of
the Union 's publication "The Machinist" (Joint Exh . 9, pp.
5-9), a copy of which was furnished to Respondent by the
Union.?
A second bargaining session was held on February 5,
1973, at which McTigue continued to insist that "union
security [is] a moral issue ." While agreement was reached
on various items, none was reached on others , including
"recognition and management rights clauses."
At the third bargaining session , on February 27, 1973 -
also, as all in 1972 and 1973, scheduled at the Union's
request - McTigue persisted in his position that required
union membership after the statutory waiting period8 was
unacceptable since it posed a "moral issue "; each of the
parties requested a "financial breakdown as to the' other's
proposed pension program"; and Bold repeated his
request, made at the February 5 meeting, for a list' of
employees with their classifications and wage rates.
At the fourth meeting, on, March 29 , 1973, McTigue
handed Bold a letter and left - immediately with the
explanation that "an urgent matter had come up." The
letter indicated, among other things, that Respondent was
prepared to raise weekly accident 'and sickness benefits and
to "adjust wages upward in keeping with our tradition'
of the April 26 letter, and further states that "The situation hasn't changed
since I wrote the letter,' however, we will continue to push for the
information you have requested " The enclosed April 26 MacKinnon letter
to McTigue , captioned "Group Annuity - GA = 645," however, merely
states that "I'm sorry that I have been , unable to provide you-with the
information you requested some time ago relative to your pension plan As I
mentioned to you on the phone , you are one of several participants in the
Plan which is issued to-the P .A.A Trust. Therefore , it becomes more
difficult to isolate the information pertaining , only to your Dealership
Please be assured that we are working on, your request and, hopefully, we
will be back to you before long. In the meantime , thank you for your
patience and cooperation With best personal regards , /s/ Vincent A.
Scamell, Vice President " While McTigue insists he sent copies of the May
7, 1973 letter (Resp Exh. 6), to Bold, it will of course have been noted that it
and its enclosure provide no information, only excuses and apologies Bold
flatly ' denies receiving any - copy of the brochure (Resp . Exh 8B)
accompanying the February 20, 1973 , MacKinnon letter (G.C Exh 5)
which' McTigue concedes he is "not sure" he sent to Bold. The May 10,
1974, MacKinnon letter (Resp . Exh 7) is described below, in sec. IIi, B
hereof dealing with 1974. -
Nowhere to date is there any showing herein of any filing of a form D'-2
annual report concerning the Employer's "pension plan" with the Officer of
Labor-Management and Welfare-Pension Reports, U S Department of
Labor, under the Welfare and Pensions Disclosure Act Of course, 'the
Union's right of access to such a report , even if filed , would be no answer to
an employer's failure to satisfy a bargaining obligation under the Act to
provide required information Cf. Sylvania Electric Products, Inc , v.
N L R B., 358 F .2d 591 , 592 (C A . I, 1966), cert denied 385 U.S 852.
8 See fn . 6, supra
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for-"full-time permanent" employees within " `the parame-
ters of . Phase III regulations,' " and that Respondent
was willing to discuss pension proposals "when the Union
furnished' -the financial statement previously requested and
certain additional information." By letter of April 5,- the
Union supplied r Respondent with considerable financial
data pertaining to the Union's pension fund.9 By letter of
April 9, the Union once again asked for the names and
"addresses ` of unit employees which it had several times
previously requested.
A fifth bargaining session was held on April 16, 1973,
with no progress. McTigue refused to discuss individual
wage rates and inequities, and refused to give ground on a
wage increase which he proposed to put into effect and to
which Bold objected. Nothing came of talk concerning
union security and pensions.
The sixth bargaining session occurred on May 25, prior
to which Respondent had supplied the Union with data as
to the employees, their classifications, and wage rates, but
as to the pension information sought by the Union only an
explanation of its "problems in obtaining" it. Also a few
days prior to this meeting, Respondent had announced it
was placing into effect an "adjusting [of] wages and
fringes, effective June 1, 1973," in response to which, the
Union immediately asked for a meeting to discuss the
matter. At the , May 25 meeting, however; although
agreement was reached on several points, wage discussions
were inconclusive , and pensions and other significant
matters were left in the air. McTigue "reiterated his
intention to put the 5.5,percent general increase into effect
as of June 1, 1973." For, the first time, McTigue agreed to
discuss "union security" , with Jay Grimes (with whom
McTigue alternated as Respondent's president .and vice
president).
The seventh and last negotiating session of 1973 - still
at the Union's behest - took place on May 29, 1973.
McTigue "irritated[ly ]" continued to refuse to discuss
wages and he reiterated that he was going ahead with
placing a ' 5.5-percent increase into effect, as he had said, on
June 1. McTigue declared that with a union-security clause
Respondent would "have to have" its "original manage-
ment rights; penalty and no-strike clauses," and that
Respondent would not agree -to the Union's successor
provision nor its pension proposal nor alter Respondent's
"work rules." The meeting broke up with McTigue refusing
to even defer his intended June 1 wage increase.
Within a few days, Respondent did in fact place into
effect on June 1 a general wage increase for the service
department bargaining, , unit employees. "Respondent
rigidly maintained that position [that it would institute a
5.5-percent general increase for all the employees effective
as of June 1, 1973] throughout the negotiations and
uniformly resisted the Union's efforts to defer implementa-
tion of such r a general increase until individual wage
inequities could be discussed." In fact, however, on or
about June 1, 1973, about 20 of the 65 unit' employees
"were given raises in, excess of 5.5 percent, and a handful
received less than theb.5 percent increase or no-increase at
all."
9 See fn . 7, supra
On June 11, 1973, the Union filed unfair labor practice
charges, resulting in issuance by the Regional Director for
Region 6 of a second complaint on September 26, ,1973,
alleging renewed violations of the Act by Respondent -
violations of Section 8(a)(5)- and (1) -through the aforede-
scribed unilateral changes in rates of pay, bypassing the
employees' exclusive collective-bargaining representative
in the face of a Board order, and negotiating with
employees directly on that subject. That case (Beyerl II)
was heard before Administrative Law Judge Arnold
Ordman in Pittsburgh on October 25-26, 1973, resulting in
findings and a decision,by him on January 31, 1974, that
Respondent had again violated the Act in the described
respects, and ordering it to cease and desist from such and
other unlawful conduct in violation of its employees' rights
guaranteed under the Act, and to bargain in good faith
with the Union. Respondent filed no exceptions to
Administrative Law Judge Ordman's Decision, which was
accordingly adopted by the Board on March 4, 1974
(Beyerl II).
Meanwhile, however, there had been another develop-
ment. Subsequent to the hearing before Administrative
Law Judge Ordman but before his Decision issued (Beyerl
II), on November 28, 1973, the Board conducted a secret-
ballot statutory representation election among Respon-
dent's sales department employees,10 who voted in favor of
representation by IAM District 63, as a result of which that
Union was on December 6, 1973, certified by the Board as
their collective-bargaining representative as well, thus
making that Union the collective-bargaining representative
of Respondent's salespersons, as well as of its service
persons.
B. The Parties' 1974 Negotiations
On, January 15, 1974, the Union wrote Respondent
requesting collective bargaining on behalf of the salesmen's
unit "at your earliest possible convenience." (This was 2
weeks before Administrative Law Judge Ordman's decision
in Beyerl' II involving the service department, employees.)
According to Union, Representative Bold, Respondent's
limited response to this was a telephone call a few days
later from McTigue to discuss only a proposed layoff of
salesmen ; according to McTigue, although he did indeed
call Bold to arrange a discussion about laying off salesmen,
when Bold indicated he also wanted to talk about other
matters he agreed, and a meeting was arranged for January
21. Whichever it was - and it is unessential to resolve the
difference in versions - a meeting did take place on
January 21.
The complaint here (Beyerl III) alleges that commencing
again with that very first 'date of the resumption of
bargaining on January 21, 1974 (on the latter date only as
to the sales department unit , it is true), Respondent again
engaged in a course of bad-faith "bargaining," in contin-
ued violation of Section 8(a)(5), in essentially the, same
10 Fn 5, supra.
BEYERL CHEVROLET, INC. 715
style as before. Only four "bargaining" sessions occurred in
197411 before again grinding to a halt and eventuating in
the filing - for the third time - of unfair labor practice
charges by the Union ,on May 31 and the issuance by the
Regional Director for Region 6 of a third complaint on
October 25, 1974 (Cases 6-CA-7528 and 7529), which
forms the basis of the instant proceeding and this Decision
(Beyerl III). These four meetings in 1974 will now be
described.
As has been indicated, the first meeting in 1974 - on
January 21 - occurred in response to the Union's letter of
January 15 requesting bargaining on behalf of the newly
certified unit of Respondent's salespeople, and Respondent
sought to confine that meeting to a discussion of its
purported decision to lay off some salesmen. At that
(January 21) meeting, accordingly, three.of Respondent's
salesmen (Tillet [Littet], Krakau, and Huber) were called
in. The meeting lasted about an hour or an hour and a half.
Although the Company at first indicated it wanted to lay
salesmen off according to its own estimate of their
"performance" or "efficiency," it finally agreed to lay off
by seniority. No other subject was discussed.
As indicated above, Administrative Law Judge Ordman
issued his Decision on January 31, 1974, in Beyerl II,
finding Respondent in violation of Section 8(a)(5) and (1)
of the Act with respect to the service employees' unit and
again requiring it to bargain -collectively concerning that
unit. On February 1, the Union (Bold) mailed to
Respondent (McTigue) several corrected pagesa (dealing
with proposed compensation and incentives for salesmen)
of a proposed collective agreement previously supplied to
Respondent in relation to the- sales unit. On February 6 -
a few days after Administrative Law Judge Ordman's
January 31 Decision dealing with the service unit - Bold
again wrote McTigue, stating that he (Bold) was "ready to
begin negotiations with you concerning the Service
Department and Sales-Department" and asked McTigue to
"contact me, at your earliest possible convenience." On
February 19, Bold again wrote McTigue, this time by
certified mail, reminding him that "As I stated in my
communication dated February 6, 1974, please be advised
that I am ready to commence contract negotiations with
you in reference to the Service Department and Sales
Department" and again asking that for the purpose of
scheduling a meeting McTigue "At your earliest conven-
ience, please contact me." In response to this communica-
tion, a meeting was arranged for and held on February 28.
The February 28 meeting was thus the first contract
negotiation session held in 1974 (the-parties' first meeting
in 1974, on January 21, having been devoted to salesmen's
layoffs), and the first since the disruption of the service
department unit's negotiations on May 29, 1973, until the
outcome of the second unfair, labor practices case, (Beyerl
II) before Administrative Law- Judge Ordman. As has
already been indicated,,prior to the February 28 meeting,
the Union had provided Respondent with a typewritten
proposed collective agreement (G.C. Exh. 6) - in
11 l.e., on January 21, February 28, March 25, and May 23, L974, as will
be shown. There were, however, additionally, conversations of an informal
nature , McTigue swears there were only two - the one setting up the
meeting of January 21 and one on February 7 concerning some proposed
shift changes for servicemen in which Bold did not concur
conventional form - covering the salespersons' unit, and
also with some typewritten corrected pages therein (G.C.
Exhs. 7, 8, and 9). At the February 28 meeting, which
lasted an hour (McTigue) or two (Bold), Respondent
supplied the Union with a handwritten "counterproposal"
covering the salespersons' unit (Joint Exh. 7). Respondent's
handwritten "counterproposal" provides, inter alia,, that:
1. Each salesman will conduct himself both on and
off the premises of Beyerl Chevrolet in a sober &
gentlemanly manner so as to bring credit and respect
upon himself, his family and Beyerl Chevrolet. A
violation of this Article (after review by management
with violator) may cause, suspension or dismissal from
organization.
2. Each salesman in the interest of good public
relations and customer goodwill will speak and act
positively about his employer . . . . A violation of this
Article (after review by management with the violator)
may cause suspension or dismissal.
3. Each salesman will report for duty, attired properly
for the particular occassion [sic]... .
5. '. . . Each salesman will attend . . . schooling
either at the training centers or elsewhere as required.
A salesperson must reinvest in himself the same as a
business must reinvest in itself. Failure to comply will
result in suspension or dismissal. A - total of three
suspensions of any sort mean termination... .
Any salesman with two chargeable accidents will
purchase his own demo & collision & comp. insurance.
The third accident will mean dismissal. This item not
subject to arbitration.
7 Also item 7.3 page 2 of shop proposal by Co. dated
Dec. 21, 1972.12
10 And anything else Mr. Menaker13 recom-
mends. .. .
16 Any salesman who makes promises of services,
parts, accessories, rental, lease or service car or other
possible remuneration to customers which are not
covered in the original bill of sale or covered by an
express written order by management will be billed the
normal price for such items and have it deducted from
his pay. Not subject to arbitration.
17 Acceptance of personal checks on transactions or
delayed deposit of checks without written approval of
management will cause any losses incurred within-a -30
day of acceptance to the salesman and deducted from
his pay. . . . Not subject to arbitration.
12 This is the $1,000- and $750-per-hour liquidated damages penalty
provision in the Company's proposed service department contract, quoted
above
13 1 e., Respondent's counsel negotiator.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The entire substance of this "collective agreement"
proffered by the Company to the Union to cover the
salespersons' unit consists of proscriptions, prohibitions,
limitations , and penalties, with no affirmative provisions
dealing with wages or granting the unit employees' any
benefits.
These two documents - the Union's proposed contract
covering the salespersons (G.C. Exh. 6) and Respondent's
"counterproposal" (Joint Exh. 7) were discussed at the
parties' meeting of February 28, with agreement on some
points and disagreement upon others. Concerning pen-
sions, the proposed union agreement (G.C. Exh. 6, art. 30)
contains a provision under which the Company' would
contribute $2 per day or not over $10 per week to the IAM
labor-management pension fund (G.C. Exh. 2). When the
subject of pensions came up, Bold asked Respondent for
the same information' he had been seeking since 1972 for
the service department unit, concerning the funding of
Respondent's pension plan, its assets and liabilities, when
employees could first participate, vesting rights, etc.
Respondent's response to this was to refer Bold to a small
pamphlet for employees called "Your Retirement Income
Plan" (Resp. Exh. 8B) which it had furnished to Bold, but
which Bold correctly asserted did not contain the informa-
tion he desired. McTigue told Bold that "that's all the
information that [is] available," except that the "pension
plan" was "with Prudential Insurance Company." At the
February 28 meeting, the parties also spoke about the
service unit, the discussion centering around Respondent's
proposal presented by it in December 1972 (Joint Exh. 6)
after the conclusion of the first unfair labor practice case
requiring it to bargain (Beyerl I) and culminating in the
second unfair labor practice case again requiring it to
bargain (Beyert II). McTigue concedes that at the conclu-
sion of the February 28 meeting Bold requested a further
meeting, which McTigue indicated he would arrange
through Respondent's counsel, Menaker, who McTigue
said was out of the country.
On March 4, 1974, the Board issued its order adopting
Administrative Law Judge Ordman's findings, decision,
and bargaining order in Beyerl 77 (not published). The
parties held another (i.e., the second in 1974) contract
negotiating session on March 25, 1974, at which Respon-
dent supplied the Union with a handwritten list of service
department employees and their classifications and wage
rates as of March 15 (G.C. Exh. 3). There are only 47
names on the list; Administrative Law Judge Ordman's
Decision indicates that on or about June 1, 1973, the unit
contained about 65 employees and Administrative Law
Judge Boyls' Decision indicates that on or about February
10, 1971, the same unit consisted of 71 employees (199
NLRB at 123). The March 25 meeting lasted only 20
minutes. Upon receipt of the list of service unit employees,
Bold renewed his oft-repeated request for information
concerning the Company's "pension plan" - for use in
negotiating with regard to both units 14 - but was again
informed that the only information available was that
contained in the employees' "Your Retirement Income
Plan" pamphlet issued by the insurance company (Resp.
Exh. 8B), which had been supplied to him. Bold continued
to point out that `this was insufficient and that he needed
more information. During this time, Respondent's sales
manager, Jack Stockman, was taking notes; when Bold
asked why, he was told it was for the Company's records:
Bold asked for, but was refused, a copy. Thereupon Bold,
who had not brought with him anybody to take notes,
demurred at proceeding further if Stockman continued to
take notes without agreeing to provide him with a copy,
unless Bold could also have somebody' present to take
notes - because of Respondent's history of previous bad-
faith negotiations = and Bold left, stating that he would
schedule another meeting after making arrangements for
his own note-taking; as he was leaving, Respondent's
counsel negotiator, Menaker, mentioned that he had a
"proposal" or a "generous proposal" for him.15
On April 16, Bold wrote a certified letter to Menaker,
Respondent's counsel and negotiator, as follows:
Please be advised that I am ready to continue contract
negotiations at your earliest possible convenience.
Please contact me as soon as possible!
Menaker answered this letter on April 19 to the effect that
Respondent was willing to resume contract negotiations
only upon "clear assurance from you that there will be no
repeat of the incident of March 25 . . . when you left our
bargaining meeting after only 20 minutes, on the pretext
that one of our bargaining committee members was taking
notes.... I was most upset at your action on March 25
..:' On May 3 Bold responded, to this letter by certified
mail, stating that "the Union is willing to meet at your
earliest possible convenience. . . . As far as the meeting of
March 25, 1974 is concerned, I at that time stated my
reason for terminating such meeting. The Company, on
numerous occasions in the past, has not only cancelled
meetings with no previous notification but they have also
terminated meetings after very short sessions and the
reason that the Company gave for such actions was stated
by Mr. McTigue, `I have other things to do.' Therefore, I
am hereby requesting a meeting at your earliest possible
convenience..... P.S.: Please supply the requested
Pension Information." On May 9, Menaker wrote Bold
confirming a meeting to be held on May 23, at which time
"we will present to you the complete and final service
department contract proposal that we had ready.to present
at the aborted meeting on March 25." (Emphasis supplied.)
While this correspondence was going on between
Respondent's counsel negotiator Menaker and the Union,
however, Respondent - according to the testimony of
McTigue - posted on its bulletin board a "BEYERL
BULLETIN" addressed "To All Shop Employees," with a
copy of Menaker's aforedescribed April 19, 1974, letter to
Bold attached, stating:
It has been rumored that there will not be a wage
increase at Beyerl Chevrolet this year, because the union
14 McTigue concedes in his testimony that Respondent's salesmen as 15 I credit Bold's denial that Menaker told him at the close of the March
well as its servicemen have at all times and still do come under the same 25 meeting that the Company was contemplating a wage increase Menaker
Prudential "pension plan " did not testify
BEYERL CHEVROLET , INC. 717
will try to block it again, if we do not sign a contract, that
.they wish to dictate . This rumor does not seem to hold
water with the traditions and track record established at
Beyerl Chevrolet . Every May first and every June first for
many years, Beyerl Chevrolet has raised wages for the
office and shop, respectively . The office employees already
know their increases.
Shop wages alone have increased by .91c per hour over
the last three years alone. In fact last year Beyerl
Chevrolet was cited by the National Labor Relations
Board, because your wages were raised over the objection
of 1060.
The N. L. R. B. has ruled that we must negotiate with 1060.
This we have done in good faith and will continue to do
so as long as necessary. However, Beyerl Chevrolet has no
agreement with 1060 or any other union, and union
membership is not a requirement to work here. It is your
legal right to refuse to attend any union meeting or
functions
To join any union
To sign any union cards
To Pay any union initiation fees
To Pay any union dues
To pay any union assessments or other fees
If you are threatened , coerced or intimidated in any
way, report it to management and you will be furnished
the full protection of our legal department.
Last year alone Beyerl Chevrolet employees did not,
repeat, did not pay approximately $14,000 in inition [sic]
fees, due and assessments
It is pretty hard to negotiate with a union that calls a
session, arrives 20 minutes late and leaves in twenty
minutes without giving us the opportunity to present the
very generous offers which we were prepared to make, as
had been requested of us. This, is verified by the inclosed
letter
We are about to lose a very fine customer at Beyerl
Chevrolet and we are losing them because a certain
union and some employees felt that they knew more
about what the company could live with, than the
company's management. I think we all can learn a
lesson from the Thorofare situation. [Emphasis sup-
plied throughout.]
Thank you for your fine cooperation.
/s/ Jack McTigue [Vice President]
/s/ Jay Grimes [President]16
On May 21, Respondent's counsel negotiator wrote Bold
confirming a meeting to be held on May 23 and enclosing
"our client's final service department proposal for a
collective bargaining agreement," adding that "We will
also be prepared to discuss with you any further proposals
concerning the sales department." (Emphasis supplied.)
The fourth and final 1974 meeting between the parties
took place on May 23. It again lasted for only about 20
minutes. In view of Stockman's described note-taking for
Respondent at the previous meeting, Bold brought with
him a cassette recording device to reflect what transpired.
A stipulated transcription thereof is in evidence here as a
joint exhibit of the parties. It shows, in material substance,
that Bold asked whether "you have that information
available for me regarding the pension that I have
requested" and that Menitker replied affirmatively; 17 that
Menaker asked Bold, "Did you, bring along a copy of our
'fi McTigue testified that on April 24, 1974, he found an envelope on his
desk containing 46 dated slips with the names of 36 servicemen and 10
salesmen (Resp Exh 9-Ident .), each typewritten or xeroxed in the same
form
1, [employee's name ] , DO NOT FEEL THAT I NEED THE LOCAL
1060 TO NEGOTIATE FOR ME.
Since no proper foundation had been laid, these slips were not received in
evidence, thus not reaching the more fundamental question of whether by
reason of these slips Respondent could at the time and under the
circumstances here disclosed assert as a defense to its bargaining obligation
under two outstanding Board bargaining orders that the Union had "lost"
its majority status. Union Representative Bold, while testifying that he was
unaware of the signing of any such slips, readily conceded that by April
1974 - after the described history - his Union no longer had any members
among Respondent's employees, service or sales But if Respondent's
described actions were in violation of the Act, as they on two separate
occasions in two different Decisions were found to be, the "loss" of majority
status is of no legal significance Franks Bros Company v N L.R B, 321
U.S 702, 704-705 (1944), N L R B v. P Lorillard Company, 314 U S 512,
513 (1942), and see, infra, sec C, 7 (Furthermore, as to the service
department unit, the Union's exclusive bargaining representational status
arose through the Board's bargaining order of September 19, 1972, in Beyerl
I, supra, as to the sales department unit, the Union's exclusive bargaining
representational status arose through the Board's certification of December
6, 1973 The Union's representative status as to the service unit at material
times here remains unrebutted, its like status as to the sales unit - absolute
for a year following December 6, 1973, and presumptive thereafter at
material times here - is likewise unrebutted - regardless of its admitted
loss of members by April 1974 Moreover, as to both units, Respondent's
continuing and unabated unfair labor practices in the face of two previous,
and now this third, unfair labor practice cases , estop Respondent from
asserting that the Union no longer represents its employees, to hold
otherwise would be to sanction nullification of the Act through violation.
See Franks Bros. and Lorillard, supra
17 Although the cassette transcript of the parties' May 23, 1974, meeting
does not show what, if any, pension information was furnished by
Respondent to the Union at that meeting, a letter was placed in evidence
here by Respondent dated May 10, 1974, shortly before this meeting, from
MacKinnon Company to McTigue, concerning Respondent's existing
"P A.A Pension Plan GA-645," undertaking to "advise you [i e, McTtgue ]
of the benefits available to your employees through, the above-mentioned
group annuity of which you are a participant," indicating no more than that
the method of calculation of benefits, "based on future [unexplained]
service from the date of coverage [unexplained] to the date of
retirement" is to multiply the "benefit option" (unexplained) by the
years of service to a maximum of 25 years (so that, for example, a $3 option
times 20 years would result in a monthly pension of $60, whereas a $5
option for 20 years would result in a $100 monthly pension), and the letter
ends with, "I trust that this information is helpful to you in determining the
status of your plan" (Emphasis supplied.) it is clear that the information
provided in this May 10, 1974, letter in no way satisfies Bold's repeated
requests for information concerning the funding and other data desired by
him relating to the Company's existing "pension plan " Respondent's
witness, Stockman conceded on cross-examination that Bold asked for
information as to what "assets" were in the Company's "pension plan " (I
reject Stockman's variation of this on redirect examination to "what assets
Prudential Life Insurance had" as a quite incredible tailored redesign of
what Bold had asked for)
718 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
final service department proposal sent to you," (emphasis
supplied) and that when Bold denied receiving it 18
Menaker furnished him with a copy, which Bold thereupon
perused; and that then the following interchange occurred-
BOLD: You say, this is your final proposal?
MENAKER: Yes Sir.
BOLD: Well, why, I mean, it seems to me that it is
rather short notice to be giving a final, proposal?
MENAKER: No it's not. We have been bargaining for
two years.
BOLD. Well, what type of bargaining?
MENAKER: Good faith bargaining
BOLD. I ,think the Labor Board found that you were
not bargaining in good faith.
- MENAKER: For certain technical reasons, they found
that we had not reached an impasse on certain issues a
year ago.
BOLD: Is this this the same proposal that you have
given-me previously?
MENAKER: There are certain changes-in this proposal
as contrasted to the previous proposal.
BOLD:... Is the Company going to deviate in any
manner at all from this proposal?
MENAKER: We do not intend to modify any of the
terms or conditions-in that final proposal. However, the
entire proposal is open for discussion at this meeting.
That is the purpose of this meeting as I understand it.
BOLD: You don't intend to modify any of the - any
of the, articles in this proposal?,
MENAKER: It is not our present intent to modify
those articles or conditions. That's right. We are
perfectly willing to discuss any objections or criticisms
or suggestions that you have.
BOLD: Well, I dust want to be clear on this point. Are
you telling me that you are not going to deviate from
this proposal?
MENAKER:, We wouldn't have submitted, it as a final
proposal if we intended to deviate from it . . . If we
have made mistakes or there should be changes, you
can attempt to persuade us on that. We feel that this is
an adequate proposal. It's a generous proposal and that
it is a final proposal.
BOLD: When are you going to give me a proposal for
the salesmen?
iH Menaker's covering letter to Bold, dated May 21, 1974, enclosing the
document in question was misaddressed to Bold in Philadelphia instead of
Pittsburgh (Joint Exh 8 )
is In a very few respects it is more liberal, thus, it provides a $5,000
"term" life insurance policy for "permanent. full time" employees who
MENAKER: Let's finish up the service department
first.... We have been bargaining over the service
department for two years.
BOLD: I don't see where there is any^need'to finish
up anything first.
BOLD: Don't you have any anything that would
describe in detail the pension program, such as vesting
rights, minimum service? .. .
MENAKER: All we have, Mr. Bold, is the booklet,that
we gave you. We don't know any more about it than we
gave you.
*
BOLD: Well, I would like some additional information.
MENAKER : We don't know any more about it
than we have given you.
BOLD: Well, when can I hope to receive your
proposal regarding the salesmen?
MENAKER: You've got it.
BOLD: Is that your final proposal regarding the
salesmen?
MENAKER: No.
BOLD: Well, why don't you give me a proposal.
MENAKER. Well, alright, we will make it final.
BOLD: That's your final proposal?
MENAKER: Yes.
The document supplied 'by Respondent to the Union at
the May 23, 1974, meeting -(Joint Exh. 5) is captioned
(emphasis supplied):
(Employer's Final Service Department Proposal
Presented 23 May 1974)
COLLECTIVE BARGAINING AGREEMENT.
A comparison thereof with Respondent's "Proposal No. 1
presented 21 December 1972" (Joint Exh. 6), a year and a
half earlier, is illuminating. It is substantially identical to
the Company's first proposal of 1972, although in some
respects more stringent 19 than the earlier draft. "Article 1
- Recognition" is still limited to "full time and perma-
nent" employees., "Part time" employees, still defined as
"those regularly working fewer than 31' hours in a single
workweek," are still explicitly excluded from coverage; as
are also "temporary and summer employees," who,
however, are now defined as those "employed for fewer
than 13 consecutive weeks." The $1,,000,- and $750-per-
hour liquidated penalties provision against the Union is the
same, with only one exception - in case of nonpayment
qualify, a $10 weekly increase in accident and sickness indemnity; and an
increase from a $3 to a $5 option in the Company's existing "pension plan."
as well as "to make it optional for employees to v,oluntaril3contribute to the
Beyerl Chevrolet Pension Program [undescribed 1 "
BEYERL CHEVROLET, INC.
by the Union of the stipulated liquidated penalty within 24
hours, the "entire [collective] agreement", is to be,
"suspended and void until such payment is effected" (1974
version) instead of "null and void" (1972 version). The
1974 "final" version limits grievances to those filed within
the contract term and precludes any arbitrator from
"assess[ing] monetary penalties or fines against the parties,
other than those provided, by this agreement" ( i.e.,
liquidated penalties against the Union). The 1974 version
also limits funeral leave to "24 hours after the funeral."
The 1974 version also has an_apperided job classification
and wage rate schedule'(which had been omitted from the
1972 proposal) but with an open-end proviso that they
shall- be "no less"than those set forth - with no provision
that there be any bargaining as to any increase beyond the
stipulated floors; plus a provision that the "agreement does
not apply" to classifications or wages not listed on the
appended schedule. And the- 1974 "final" proposal is for a
term of I year only (automatically renewable subject to
prior 60-day terminability) to May 31, 1975. The "final"
proposal has a page attached stating that "The Company
reserves the right to add to, subtract from, change or
modify the above proposal until such time as a complete
agreement has been reached, ratified by the Union
membership , and executed."
When the above "final proposal" (18 pages in all) was
given by Respondent to Bold under the - described
circumstances just before noon on May 23, Bold at the
conclusion of the described cassette-recorded discussion at
or shortly after noon stated, "I need additional time to look
this thing over." Menaker .answered, "You can take more
time and we will come back this afternoon at 1 o'clock."
Bold replied , "I think I need more time than that" and
turned the recorder off. At this point,. the parties agree,
Menaker - notified Bold that Respondent was placing into
effect on June 1 a wage increase consisting of the proposed
wage rates and classifications it had just handed to Bold as
"Appendix A" to its "final proposal" just described -
thus, essentially a replay of what had transpired the
previous year (1973) resulting in the aforedescribed 1973
unfair, labor practice charges and case (Beyerl II) tried-
before Administrative Law Judge Ordman, except that this
time it was a 6-percent, wage rate increase plus some
"merit" increases . Bold angrily left. On May 29, Respon-
dent 's counsel negotiator mailed to Bold, once again
misaddressed to him in Philadelphia instead of Pittsburgh,
a half dozen additions to the classifications/wage rates list
it had notified him on May 23 it was placing into effect on
June 1. With the 6 added names, 64 employees are this time
listed . The letter states that "all but Campbell received the
6% across-the -board increases as of June 1, and Campbell
received 6%, because ofslightly increased responsibilities It
is still our intention to put this Appendix A wage increase
into effect on June 1 along with the other, economic
increases we have submitted to you. Should you wish to
discuss this offer with us, we are still available for that
purpose and will remain available through the rest of the
week." May 29, 1974 (the date of this letter), was a
Wednesday;' June 1 was 3 days later, on Saturday. It is
stipulated that this misaddressed letter was received on
June 1 . The charges here bad been filed and served the day
719
before (May 31) and were received by Respondent on June
1. It is stipulated by the parties that on the same. day, June
1, Respondent did in fact place into effect a general wage
increase of 6 percent to its employees, and, further, " merit"
increases to certain employees - as set forth in "Appendix
A" (Joint Exh. 3) to its "Employer's Final Service
Department Proposal Presented 23 May 1974" (Joint Exh.
5) as supplemented by its May 29 letter (Joint Exh.- 4)
received June 1, 1974. Once again in the instant case
(Beyerl III), as in the case before Administrative Law
Judge Ordman (Beyerl II), no meetings have been held
during the pendency of the unfair labor practice case.
C, Resolution and Rationale
The events here under consideration had their origin in
1970 - almost 5 years ago - when Respondent's service
department employees, seeking to exercise rights guaran-
teed to them by Congress in^ the Act, engaged in
organizational efforts so as to bargain collectively with
Respondent through IAM District 63 as their bargaining
representative. When the- Union approached Respondent
to bargain with it, it was rebuffed and its subsequent letters
were not accepted from the postal authorities. Instead,
Respondent engaged in a broad spectrum of violations of
the Act so extensive and substantial as to be preclusive of
the holding of a statutory representation election, thereby
frustrating a basic purpose of the national labor-manage-
ment relations policy as declared in the Act. Respondent's
unlawful actions eventuated in a Board Order on Septem-
ber 19, 1972 - after charges filed on March 29, 1971, and
a hearing before Administrative Law Judge Boyls in
January 1972 - finding Respondent guilty of numerous
unfair labor practices and, under authority of law declared
by the Supreme' Court in N. L. R. B. v. Gissel Packing
Company, 395 U.S. 575 (1969), an order requiring Respon-
dent to bargain with the Union (Beyer! I). The nature of
Respondent's compliance with that order may be gauged
from the fact that by the middle of the following year (June
1973) unfair labor practices charges were again filed
against Respondent, resulting in a second hearing, this
time before Administrative 'Law Judge Ordman, in October
1973, again eventuating in findings of violation of the Act
and a second Board Order in March 1974, again requiring
Respondent to bargain with the Union (Beyerl 'II).
Respondent is now here again, for the third time (Beyerl
III), again charged (May 1974) with failure to bargain in
accordance with the Act's command.
Whereas there was only one collective-bargaining unit
involved in Beyerl' I and Beyerl II, namely Respondent's
service department' employees, in the instant case (Beyerl
III) a second collective-bargaining unit, consisting of
Respondent's salespersons,` has been added, arising out of
the Board's certification of the Union on December 6
following,a statutory election on November 28, 1973. With
regard to the service department unit, it is fair to say that
Respondent's final proposal, (May 23, 1974) is substantially
the same as its first proposal (December 21, 1972), more
specifically in. respects hereafter discussed. With regard to
the sales "department unit, Respondent has not even
submitted a, contract, but only, as shown above, a
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comprehensive set of proposed strictures against its
employees seeking to bargain collectively.
In this state of affairs, Respondent claims that it has
fulfilled its obligation to bargain in good faith with the
Union and that it is no longer obligated to do so since-the
Union has "lost" its 'fnajority representational status.
Specific issues and contentions in this regard will -now be
considered.
1. Definition of bargaining unit
Notwithstanding the Board's definition of the service
department bargaining unit in its September 19, 1972,
bargaining order in Beyerl I, from the inception of
"bargaining" in November 1972 - when McTigue
announcedsthat he was "dealing from a position of strength
because he doubted that a majority of the employees were
supporting the Union" and declared his "moral issue -
until the present time, as shown above; Respondent has not
deviated from its insistence upon restricting the collective
agreement -to, a different and less extensive unit than the
one defined, and, required by the Board - namely, so as to
exclude what Respondent regards as ,"part-time" employ-
ees, although they were neither in fact nor in law excluded
from the Board's specified unit.
Although parties may, by mutual agreement, under
certain circumstances alter a unit originally established by
the, Board "if the process of alteration involves no
disruption of the bargaining process" (Douds v. Internation-
al Longshoremen's Association, 241 F.2d 278, 282 (C.A. 2,
1957), it is a violation -of Section 8(a)(5) for one party over
the opposition of the other, to, insist that employees
included by the, Board in the unit be excluded (Steere
Broadcasting Corporation, 158 NLRB 487, 488, fn. 2, 506-
507 (1966)), or that bargaining be restricted to less than all
members of the established unit. Salt River Valley Water.
Users' Association, 204 NLRB 83 (1973).
Non-full-time employees, having a community, of interest
with full-time employees (such as by regularity of employ-
ment), are regarded, by the Board as regular, -part-time
employees' includable in the bargaining unit. Sears,
Roebuck and Co., 172 NLRB 1266 (1968); Booth Broadcast-
ing Company, 134 NLRB 817, 820 (1961) (radio technician
who worked, only Saturdays, included in unit). Aside from
the fact that the unit here was already defined and
established, the so-called "more than 50% rule," which
Respondent here may be seeking to invoke, has been
applied only to dual function employees, who split their
time between, working in the bargaining unit and working
for the same employer outside of the bargaining unit
(Coca.Cola Bottling Company of St. Louis, 94 NLRB 208,
210-211 (1951)) - as distinguished from part-time employ-
ees, who to the extent they work for the employer work for
20 1 reject, as hardly worthy-of comment, the argument Respondent now
advances that its continued insistence on the described exclusion of "part-
time" employees from the bargaining unit did not continue a refusal to
bargain concerning the "part-time" employees since they could have been
covered by a separate and different collective agreement To begin with,
there is a total absence of any indication that such a position, offer;
suggestion ,, or contention was at any time advanced or raised by
Respondent Furthermore, there is no reason why - if Respondent,really
desired to take that position at any time during the past years - it could not
have included in its proposed contract whatever special provisions it desired
him only in the bargaining unhand are, as shown above,
includable in the unit; and the "more than 50%o rule" has
itself been whittled down to 40 percent (Berea Publishing
Company, 140 NLRB 516 (1963)). Herein not only were
part-time employees not excluded from the unit, but they
clearly meet the basic community of interest test. In Sears,
Roebuck and Co, '193 NLRB 330 (1971), part-time
employees who regularly averaged as little as 4 hours per
week were held to meet that test. In Leland Stanford Jr.
University, '194 NLRB 1210, 1214-15 (1972), the Board
included in a nonacademic bargaining unit employees
working only 20 hours per week:
Herein, Respondent has not only consistently from first
to last insisted on excluding "part-time" employees but
has,, further, insisted upon an arbitrary and unreasonable
definition of that category of employees - thereby flying
in the face of the Board's orders in Beyer] I and Beyerl II
and seeking to change the nature (and presumably the
arithmetical proportion for representational calculation,
purposes) of. the established bargaining unit. Such insistent,
boggling over a representational recognition provision and
insistence upon modifying the nature of the,unit specified
by the Board in a fresh, as well- as renewed,, bargaining
order is so unusual as itself to indicate intention to erect
roadblocks to-agreement. Cf. Montgomery Ward & Compa-
ny, 37 NLRB 100, 121, (1941), enfd. 133 F,2d 676 (C.A. 9,
1943). These are unfair labor practices clearly violative of
Respondent's obligation under Section 8(a)(5) to bargain
in good faith.20
It is accordingly found and concluded that the complaint
allegation that Respondent has violated Section.,8(a)(5) and
(1) by insisting that bargaining unit employees working less
than 31 hours per week be excluded from the coverage of
the recognized unit and the collective agreement has been
established.
2. Denial of pension fund information
Likewise, from inception to end of the - "negotiations"
here, Respondent has failed and refused to provide' the
Union with requested informatioh'concerning the funding,
asset picture, and other data ' essentia l to informed and
intelligent bargaining concerning Respondent's existing
"pension plan" (applicable to both units)'or any proposed'
substitute therefor.21 Certainly a knowledge as to the cash,
investment,' and possibly other equities of Respondent,
and/or its employees in the "pension fund" maintained by
Respondent for its employees, was and , is of vital
importance to any representative seeking to bargain'
concerning the employees' wages and other 'terms and
conditions of employment; indeed, it is difficult to
to offer in relation to "part-time" employees Under the circumstances, I
can only regard its current argument as advanced tongue-in-cheek and as a
further indication of its continuing purpose not really to engage in good-
faith bargaining but rather to frustrate it.
21 On the other hand, the Union early supplied Respondent with
comprehensive data on its own proposed pension plan and also the funding
thereof, as well as its asset and investment picture in detail Respondent's
statements at its final May 23, 1974, negotiation session that the Union had
failed to provide such information are simply incorrect
BEYERL CHEVROLET, INC. 721
understand how a bargaining representative could conduct
negotiations without such information.22
Since pensions, like insurance and health and welfare
benefits, are mandatory subjects of bargaining (T. T.P.
Corporation, 190 NLRB 240 (1971); Peter Satori Co., Ltd.,
175 NLRB 36 (1969)), information concerning them -
including actuarial data - must be furnished in collective
bargaining. Cone Mills Corporation v. N.L.R.B., 413 F.2d
445 (C.A. 4, 1968); N.L.R.B. v. Feed & Supply Center, Inc.,
294 F.2d 650 (C.A. 9, 1961); N.L.R.B. v. John S. Swift Co.,
Inc., 277 F.2d 641 (C.A. 7, 1960); Curtiss-Wright Corpora-
tion, 193 NLRB 940 (1971); Industrial Welding Company,
175 NLRB 477 (1969); International Association of Machin-
ists and Aerospace Workers, AFL-CIO, 172 NLRB 2086,
2103-05 (1968); The Rangaire Corporation, 157 NLRB
682 (1966); Sylvania Electric Products, Inc., 154 NLRB
1756 (1965), enfd. 358 F.2d 591, 592-593 (C.A. 1, 1966),
cert. denied 385 U.S. 852; N.L.R.B. v. General Electric
Company, 418 F.2d 736, 750, fn. 6 (C.A. 2, 1969), cert.
denied 397 U.S. 965 (1970); The Electric Furnace Co., 137
NLRB 1077, 1080-81 (1962), enforcement denied on other
grounds 327 F.2d 373 (C.A. 6, 1964). Summaries of the
plans themselves do not fulfill this obligation. Beverage-Air
Company, 164 NLRB 1127, 1141-42 (1967), enfd. 402 F.2d
411 (C.A. 4, 1968). In Bastian-Blessing Division of Golconda
v. N.L.R.B., 474 v. N.L.R.B., 474 F.2d 49 (C.A. 6, 1973),
the identity of the carrier of an employee health insurance
plan was held to be a mandatory subject of bargaining-(but
cf. Connecticut Light & Power Co. v. N.L.R.B., 476 F.2d
1079 (C.A. 2, 1973) - at any rate where the carrier could
not be separated from the benefits; and in Curtiss-Wright
Corporation, 193 NLRB 940 (1971), and Phelps Dodge
Copper Products Corporation, 101 NLRB 360 (1952), a
pension fund's portfolio breakdown was required to be
disclosed. It has further been held to violate the Act for an
employer to refuse to furnish information to a union
concerning the employer's contractual obligation to con-
tribute moneys to a designated fund. Murray Bagdasarian
d/b/a Michael Rossi Carpet Co., 208 NLRB 748 (1974).
If a union bargaining representative is entitled to the
information it seeks concerning a "pension plan" which the
employer maintains for its employees; it is no answer for
the employer who has not supplied that information to
claim that it does not "have" it. The response to this is that
if it does not have it it should obtain it. Nor is it an answer
to failure to provide proper information that an insurance
or other company administering "the plan" into which the
employer has paid and is paying moneys has not or will not
release the information to the union or to the employer 23
Assuming this is true - not here established - among the
remedies open to an employer in such a situation is to
enforce its demand,upon the insurance company, cancel its
22 I reject as somewhat preposterous the suggestion advanced by
Respondent that the Union insisted on a full disclosure of all of the assets of
Prudential Insurance Company, the supposed administrator of the fund in
question. All that the Union has been consistently requesting, and properly
so, is a disclosure of the assets and funding of the particular pension fund
here in question. At no time has that information, or anything even
remotely resembling that information, been furnished to the Union.
23 Even burdensomeness of compliance - not established here - does
not annul the necessity to carry out the disclosure obligation. Cf. Universal
Atlas Cement Division of United States Steel Corporation, 178 NLRB 444, 450
(1969); Rybol Heater Company, 165 NLRB 331, 332-333 (1967), enfd. 408
"coverage," or bargain with the union concerning an
alternative (perhaps cheaper as well as better) pension plan
open to the light of day so that the union, and through it
the employees, will know exactly what they may be getting,
the likelihood that they will get it, and what they are
willing to bargain off for it in the way of present wages or
otherwise. A party to good-faith collective bargaining -
whether it be employer or union - cannot reasonably
expect the other party to buy a pig-in-the-poke; and a
union entering such a blind deal might well be subject to
suit and surcharge by its members for failing properly to
carry out its fiduciary obligations.24 It is not to be assumed
that an employer represented by knowledgeable counsel is
ignorant of this.
Under all of the circumstances, it is accordingly found
and concluded that by its persisting failure and refusal to
provide or make provision for supplying the Union with
the requested data concerning its "pension plan," Respon-
dent has engaged and is engaging in a further violation of
Section 8(a)(5) and (1) of the Act.
3'. Liquidated damages penalty provision
Likewise, from inception of "negotiations" until its "final
proposal," Respondent insisted upon inclusion in the
collective agreement of a liquidated damages penalty
provision requiring the Union to pay to Respondent $1,000
for the first hour or fraction thereof and $750 for each
succeeding hour of "any strike or slowdown," failing which
the entire collective agreement would be void or at least
suspended until payment thereof.
It is an unfair labor practice for a party to a labor
negotiation to insist upon negotiating regarding, or to
condition agreement upon, or to create an "impasse" by
seeking to "trade off" against a mandatory bargaining
subject (i.e., wages, hours, and other terms and conditions
of employment), a nonmandatory bargaining subject. Cf.
Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S.
157, 178 (1971); N.L.R.B. v. Wooster Division of Borg-
Warner, 356 U.S. 342, 349, 350 (1958), "As to other matters
[i.e., not relating to `wages, hours, and other terms or
conditions of employment' ] . . . each party is free . . . not
to bargain...: .; Industrial Union of Marine & Shipbuild-
ing Workers [Bethlehem Steel Company] v. NL.R.B., 320
F.2d 615,'618-19 (C.A. 3, 1963), cert. denied 375 U.S.' 984
(1964); Fall Tank Company, 214 NLRB No. 154 (1974);
Covington Furniture Mfg. Corp., 212 NLRB 214 (1974);
Carpenters' District Council of Detroit (Excello Dry Wall
Co.), 145 NLRB 663 (1963); Radiator Specialty Company,
143 NLRB 350,,372-373 (1963). A performance bond is
nonmandatory bargaining subject. N.L.R.B. v. American
Compress Warehouse, 350 F.2d 365, 369-370 (C.A. 5, 1965),
F.2d 888 (C.A. 6, 1969) Nor would the fact that a "pension plan" includes
nonumt employees be an answer to the disclosure obligation. The Electric
Furnace Co., 137 NLRB 1077 (1962), enforcement denied on other grounds
327 F.2d 373' (C.A 6, 1964)
24 Cf. B. L Montague Company, 116 NLRB 554, 562 (1956). This is true
even if the pensions are nonvested. As is well known, formal trusts are
subject to numerous limitations, conditions, defeasances, and terminations,
depending upon the terms of the particular trust indenture. See Bogert,
Trusts, chaps 2, 9, 17, and passim (3di ed., 1952). There is absolutely no
justification for withholding such information from the employees and their,
bargaining representative
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cert. denied 382 U.S. 982 (1966); N.L.R.B. v. Davison d/b/a
Arlington Asphalt Company, 318 F.2d 550, 555-558 (C.A. 4,
1963); Carpenters' District Council of Detroit, supra at 664-
668. As far back as 1940 the Board held that an employer
may not insist upon a union's posting of a performance
bond to indemnify the employer against a breach of the
collective agreement, as a condition to the employer's
entering into the agreement. Jasper Blackburn Products
Corporation, 21 NLRB 1240, 1254 (1940). See also Scripto
Manufacturing Company, 36 NLRB 411 (1941); Interstate
Steamship Company, 36 NLRB 1307 (1941); Benson
Produce Company, 71 NLRB 888, 898-899 (1946).25 Board
law is the same in regard to a legal liability or indemnity
provision for violation of a no-strike provision.26 N.L.R.B.
v. Tower Hosiery Mills, Inc., 180 F.2d 701 (C.A. 4,,1950),
cert. denied 340 U.S. 811; Radiator Specialty Co., 143
NLRB_ 350, 363, 370-371 (1963), reversed in this respect
336 F.2d 495 (C.A. 4, 1964); North Carolina Furniture, Inc.,
121 NLRB 41 (1958).
It is found and concluded that, in the circumstances here
shown, Respondent's insistence , including in its "final
proposal" of May 23, 1974 - with regard to both the
service department unit and the sales department unit -
upon its liquidated damages penalty provision, a nonman-
datory bargaining topic, also constituted bad-faith bargain-
ing, in further violation of Section 8(a)(5) and (1).
4. Unilateral wage increase
As in Beyerl II, also in the instant case Respondent
placed into effect, on a scant few days' notice, wage
increases to unit employees without giving the Union a
meaningful opportunity to bargain concerning the same.
As indicated by the Supreme Court in N.L.R.B. v. Katz,
d/b/a Williamsburg Steel Products, 369 U.S. 736, 747
(1962) (as well as in innumerable other cases), such an
action "must of necessity obstruct bargaining, contrary to
the congressional policy," constitutes a violation of Section
8(a)(5) even "without . . . finding the employer guilty of
over-all subjective bad faith," and "will rarely be justified
by any reason of substance." See also N.L.R.B. v.
Crompton-Highland Mills, Inc., 337 U.S. 217, 223-225
(1949); N.L.R.B. v. J. H. Allison & Co., 165 F.2d 766 (C.A.
6, 1948), cert. denied 335 U.S. 814.
Although an exception to the foregoing exists in case of
impasse in negotiations, the impasse must - unlike here -
be genuine and also not the result of the Respondent's
unfair labor practices. A unilateral wage increase,, within a
bargaining context, is unlawful where - as here - no
genuine impasse has been reached. Katz, supra; Supak and
Sons Manufacturing Corporation, 192 NLRB 1228 (1971),
enfd. 470 F.2d 998 (C.A. 4, 1973). "Impasse" is not
available as a justification for unilateral action by an
employer where, as here, it is the result of the employer's
own unfair labor practices or bad faith. N.L.R.B. v.
Herman Sausage Co., Inc., 275 F.2d 229 (C.A. 5, 1960). Nor
25 A union may similarly not insist upon a performance bond from an
employer. Local 164, et al, Brotherhood of Painters [Cheatham Painting Co]
v N L.R.B., 293 F 2d 133 (C.A.D.C, 1961), cert denied 368 U S. 824.
26 In this connection, it is to be kept in mind that some strikes are lawful
even in the presence of a no-strike provision in the collective agreement. Cf,
e.g, Mastro Plastics Corp v. NLRB, 350 US 270, 283-284 (1956);
is "impasse" available to justify unilateral action where,
also as here, it results from an employer's failure to supply
required data (pension plan information) to the bargaining
representative for bargaining purposes. Palomar Corpora-
tion and Gateway Service Company, 192 NLRB 592 (1971),
enfd. 465 F.2d 731 (C.A. 5, 1972). Nor, finally - also as
here - is "impasse" available to justify unilateral ,action
where the employer has not afforded the bargaining
representative sufficient advance notice to permit reason-
able opportunity for meaningful collective bargaining with
regard to the intended action. Servis Equipment Company,
198 NLRB 266 (1972) (5.5-percent wage increase, after
only two bargaining sessions).
Defining, as I do, an impasse under Board law to be a
breakdown in bona fide negotiations, not brought about
(unlike herein) by a party's own unfair labor practices, it is
clear that an impasse does not exist through mere
announcement by a party; nor through his insistence upon
inclusion of or insistent bargaining about a subject on
which the other party is not obliged to bargain; nor by
unsuccessfully insisting on the "trade off" of a bargainable
against a nonbargainable subject. Under the circumstances
here disclosed and found, it is evident that no bona fide
impasse existed, but, on the contrary, only an "impasse"
directly brought about and declared by Respondent, and
utilized by it for its unilateral' increase of its employees'
wages without affording reasonable or meaningful oppor-
tunity to its employees' collective-bargaining representative
to bargain concerning the same. It is hardly indicative of
good-faith collective bargaining for !,an employer, after only
three contract "bargaining sessions" following a second
Board, bargaining order - while persisting in refusing to
provide the Union with necessary bargaining information
and while throwing the "negotiations" into a tailspin by
insisting on "bargaining" about nonmandatory topics - to
announce on Wednesday (or a few days before that) that it
is placing into effect a general wage increase and also some
"merit" increases on Saturday and then proceeding to do
so, when no genuine bargaining' impasse has occurred
other than an "impasse" of its own 'making designed to
serve its own persisting purposes ' of disrupting and
avoiding collective bargaining.
It is accordingly found and concluded that through its
wage increase of June 1, 1974, Respondent further failed to
bargain in good faith, in violation of Section 8(a)(5) and
(1).
5. Sales department bargaining unit
With regard to the sales department bargaining unit -
for which the Union was officially certified by the Board as
bargaining agent on December 6, 1973, following a
statutory secret ballot election on November 28, 1973, no
meaningful bargaining whatsoever has taken place. As the
transcript of the cassette-recorded "bargaining" session of
May 23, 1974, will disclose, Respondent continued to insist
N LR B v Buitom Foods Corporation, 298 F 2d 169, 175 (C.A. 3, 1962). So
also would 'be a strike against an employer who simply does not pay the
agreed wages under the collective agreement; it would be preposterous to
unpose a liquidated damages penalty against the employees in such a
situation, while permitting the employer not to pay wages.
BEYERL CHEVROLET,, INC.
that it wanted to "finish up the service department first,"
and then claimed to have submitted a "proposal" concern-
ing the sales department unit, which on May 23 it
announced was its "final proposal," when in fact it had
submitted no proposal but only a long list of strictures
against employees in the event they wished to bargain
collectively. And herein, although its answer was inter-
posed within the 1-year period following the Board's
certification of the bargaining representational status of the
Union for that unit, Respondent denied in its answer that
the Union has that status even though it holds the Board's
official certificate.
This is by no means the good-faith bargaining contem-
plated by the Act's purposes or required by its terms. It is
found and concluded that Respondent has likewise
violated Section 8(a)(5) and (1) in relation to the sales
department collective-bargaining unit.
6. Totality of respondent's behavior
It is further clear that, as reviewed and found above, the
totality of Respondent's bargaining behavior here displays
a continuation of a resolve on its part to frustrate the good-
faith collective-bargaining process contemplated by the
Act and to foreclose agreement with the Union, against
which Respondent continues to display a marked animosi-
ty as the collective-bargaining representative of two units
of its employees. Thus, agamst a background of numerous
and substantial unfair labor practices and two prior unfair
labor practices cases and two Board bargaining orders,
Respondent has here (1) continued to insist on not
accepting the service department bargaining unit as
established by the Board; (2) persisted in not supplying the
Union with required data concerning its "pension plan,"
essential to proper, collective bargaining; (3) continued to
insist upon bargaining about a nonmandatory subject
(liquidated damage penalties against the Union) for
inclusion in the collective agreement; (4) failed and
declined to enter into meaningful bargaining concerning
the sales department employees' unit; (5) again unilaterally
placed into effect wage increases without affording the
Union reasonable opportunity to bargain concerning, the
same ; and (6), as will be shown, now seeks to justify its
actions and refusal to bargain "further" upon the specious
ground that,- , agamst this background and no less than
three separate unfair labor practices proceedings spanning
the years 1970-75, during which it has been engaged in
continuing unfair labor practices against the Union, in
violation of the Act - the Union has now "lost" its
majority status.
The total , circumstances disclosed and found clearly
warrant the further conclusion, hereby made, that Respon-
dent's overall conduct has been such as to demonstrate no
real purpose or intention,to arrive at agreement or bargain
in good faith toward that end, and continuing bad faith
designed to frustrate' and preclude consummation of
agreement with the Union, consistent with and in continu-
ation of what was characterized by Administrative Law
27 A variety, of other contentions is raised by Respondent in its
posthearing brief Thus, Respondent contends that it is the Union, and not
Respondent, which has been guilty of bad-faith bargaining, as well as of
dilatory tactics and ]aches to the alleged, prejudice and detriment of
723
Judge Ordman in Beyerl II as "a predisposition to violate
the Act." Such a pattern of conduct constitutes further
violation of Section 8(a)(5) and (1). Cf., e.g., N.LR.B. v.
American National Insurance Co., 343 U.S. 395, 404 (1952);
United Steelworkers of America, AFL-CIO [H.K. Porter
Company, Inc.] v. NL.R.B., 363 F.2d 272 (C.A.D.C., 1966),
cert. denied 385 U.S. 851; N.L.R.B. v. Fitzgerald Mills
Corporation, 313 F.2d 260, 268 (C.A. 2, 1963), cert. denied
375 U.S. 834; N.L.R.B. v. Herman Sausage Co., Inc., 275
F.2d 229, 232 (C.A. 5, 1960); N.L.R.B. v. Reed & Prince
Mfg. Co., 205 F.2d 131, 134, 139-140 (C.A. 1, 1953), cert.
denied 346 U.S. 887; Singer Mfg. Co. v. N.LR.B., 119 F.2d
131, 134-139 (C.A. 7, 1941), cert. denied 313 U.S. 595;
Continental Insurance Co., 204 NLRB 1013 (1973), enfd.
495 F.2d 44 (C.A. 2, 1974); Ramona's Mexican Food
Products, Inc., 203 NLRB 663 (1973); John Zink Company,
196 NLRB 942 (1972); "M" System, Inc., 129 NLRB 527,
548 (1960); Tower Hosiery Mills, Inc, 81 NLRB 658, 660-
662 (1949), enfd. 180 F.2d 701 (C.A. 4, 1950), cert. denied
340 U.S. 811.
7. "Loss" of union majority status
Respondent insists it is under no obligation to bargain
with the Union since the Union has by now "lost" its
adherents among Respondent's employees and conse-
quently its representational status. It would be small
wonder if it had not, after all that has taken place.
It is, however, amply settled that an employer cannot
escape its statutory bargaining obligation by ousting its
employees' bargaining representative through unfair labor
practices in violation of the Act. The opposite result -
which Respondent is pressing for here after two genera-
tions of contrary legal history under the Act - would
reward instead of remedy violation of the Act.
As will be recalled, with respect to the service depart-
ment unit, the Board's Gissel.bargaining order was issued
on September 19, 1972, in Beyerl I. The intervening period
since then has largely been taken up by continued unfair
labor practices, Beyer! II, and Beyerl III So far as the sales
department bargaining unit is concerned, the complaint
here was issued within the 1-year period following its
certification by the Board following a statutory election.
Barring extraordinary circumstances not here present, a
certified union must be recognized and bargained with for
a full year following certification even if it has lost its
majority. Ray Brooks v. N.L,R.B., 348 U.S. 96 (1954). But,
in any event, "loss of majority" is not available as a defense
to a, refusal or failure to bargain where, as here, it is
attributable to the employer's unfair labor practices.
Franks Bros. Co. v. N.LR.B., 321 U.S. 702,704-705 (1944);
Massey-Ferguson, Inc. v. N.LR.B., 78 LRRM 2289, 66 LC
¶ 112,060 (C.A. 7, 1971); N.L.R.B. v. Pepsi-Cola Bottling
Company of Miami, 449 F.2d 824 (C.A. 5, 1971), cert.
denied 407 U.S. 910 (1972); N.L.R.B. v. Little Rock
Downtowner, Inc., 414 F.2d 1084, 1091, fn. 4 (C.A. 8,
1969).27
Respondent. The record does not warrant such a conclusion , but rather, as I
find, the precise opposite. If Respondent was of the view that the Union was
engaiging in bad-faith bargaining, it could readily have filed such a charge
and presented' it for adjudication The prompt filing of charges by the Union
(Continued)
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By insisting that bargaining unit employees working
less than 31 hours per week be excluded from collective
agreement coverage; by failing and refusing to provide or
make provision for supplying information to its employees'
collective-bargaining representative concerning assets and
funding of Respondent's pension program covering bar-
gaining unit employees and thereby precluding informed
and proper collective bargaining by said representative; by
insisting that any collective agreement include a liquidated
damages penalty provision against the Union in case of
breach thereof; by unilaterally placing into effect wage
increases to bargaining unit employees; and by bargaining
in such manner as to frustrate and preclude consummation
of an agreement, as set forth and found in section III,
supra, Respondent has engaged and is engaging in unfair
labor practices in violation of Section 8(a)(5) of the Act,
and has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in
Section 7 of the Act, and is continuing so to do, in violation
of Section 8(a)(1) of the Act, substantially as alleged in the
complaint, with regard to the following appropriate
collective-bargaining units:
a. All service department employees at Respondent's
Monroeville, Pennsylvania, dealership including
all auto mechanics, body and fendermen, appren-
tices, helpers, lubricators, lot boys, recondition-
ers, partsmen, parts truckdrivers and car jockeys;
but excluding all office clerical employees , sales-
men, watchmen and guards, professional employ-
ees and supervisors as defined in the National
Labor Relations Act.
b. All new and used car salespersons employed at
Respondent's Monroeville, Pennsylvania, facility;
excluding all other employees, service department
employees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the National Labor Relations Act.
and the extensive litigation engendered by Respondent in the three unfair
labor practice cases against it do not bespeak dilatoriness or laches on the
Union's part, but the opposite . For Respondent now to assert that the real
culprit is the Union reverses the gears of Beyerl I, II, and III in quite a
startling fashion Respondent complains that Bold walked out on one of the
few bargaining sessions , when Respondent had one of its agents there taking
what appeared to be "verbatim" or extensive notes and refused to agree to
supply Bold with a copy . Respondent's McTigue had likewise walked out on
earlier bargaining for apparently lesser if any reason. While Respondent
was entitled to take notes , so was the Union. Under the particular
circumstances disclosed, within the frame of reference of the background
and situation as a whole, it was not unreasonable for Bold at the particular
pass to interrupt or postpone a bargaining session in order to make
arrangements for his own note-taker or note-taking since he was alone.
Respondent had a number of people there and declined to desist from
further note-taking or to give Bold a copy, and Bold had reason to fear that
facts might be distorted concerning the matters discussed . I find that under
the circumstances presented Bold's action did not constitute a failure or
refusal to bargain , nor did Respondent evidently so regard it, since it met
with Bold thereafter on May 23, at which time Bold had a recorder with him
(at the use of which Respondent , in turn, expressed dissatisfaction). As for
Respondent's current contention that its May 23 proposal, labeled by it on
its face as "final" (and even thus referred to repeatedly in Respondent's
beef) was not really final, the document itself and the uncontroverted
3. Said unfair labor practices have affected, are
continuing to affect, and unless permanently restrained
and enjoined will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Respondent, having been found to have violated Section
8(a)(5) and (1) of the Act in the respects enumerated,
should of course be required to cease and desist from
continuing further such violations or, in view of its past
history, from violating its employees' rights under the Act
in any like way, to bargain in good faith in accordance
with the Act's provisions, and to post yet another notice to
employees.
However, this being no less than the third similar
proceeding against Respondent in about as many years, I
am persuaded - particularly in reviewing the details of its
actions and "negotiations" since 1970 as shown above -
that another routine bargaining order here would do no
good, but would instead be regarded by Respondent, who
has already violated two such Board Orders, as only "more
of the same" and as an invitation to further persist in its
old ways. I am therefore convinced that somewhat stronger
medicine is now required. There is no reason to believe
that the purposes of the Act will be fulfilled by issuance of
a third conventional bargaining order when two previous
such orders have -not sufficed. Escalating caseloads are
encouraged further to escalate, public funds are needlessly
committed, the human resources of the Board are strained
and overtaxed, and rights and economic interests of
employees and their bargaining representatives are given
only lip service, by mere addition of yet another appendage
to a procession of ineffectual proceedings. National policy,
the law's processes , and the Board as an institution are
mocked by repeated noncompliance with remedial orders.
Under these circumstances, repetition of the ineffective
invites renewed challenge, and makes predictable still
further proceedings like Beyerl I, II, and III, unless
increasingly stronger medicine is administered.28 Since I
believe that point'has come, in addition to the usual cease-
and-desist and bargaining order, I shall recommend that
cassetted recording , in essential part set forth above, will have to govern,
within the frame of reference of the preceding as well as subsequent facts
covering a history since 1970. If Respondent did not really intend what it
labeled and described as "final" to be final, it should not have so labeled it
The Union was entitled to take Respondent at its word in this regard In the
serious conduct of business affairs such as the collective bargaining required
by the law of the land, when an employer = particularly one who by its
recent adjudged violation of the Act in placing into effect unilateral wage
increases (Beyerl 11) had shown that it means what it says - after a degree
of resumed "bargaining" again interrupted by renewed litigation resulting in
a second bargaining order, states on a formal document that it is "final," it
may be reasonably construed to mean what it says; nor is there any
persuasive showing here that it did not. Ifis late in the day for Respondent
now, after such a history, to urge otherwise
28 That, in fashioning an appropriate remedy, a Respondent's history
should be taken into account, see, e g., N L.R.B. v. Gissel Packing Co, Inc,
395 U.S. 575, 614 (1969); N.LR.B. v. Seven-Up Bottling Co, 344 U S 344,
348-349 (1953); Truck Drivers & Helpers Local Union No 728, Teamsters v.
N,LR.B., 332 F.2d 693, 695, 697 (C.A. 5, 1964), cert. denied 379 U S 913;
Local 138, Operating Engineers v. NLRB, 321 F.2d 130, 138 (C.A. 2,
1963); N.LR B v. Springfield Building & Construction Trades Council, 262
F 2d 494, 498-499 (C A 1, 1958), cited with approval in N.L.R.B. v. Ochoa
Fertilizer Corp, 368 U S. 318 at 322 (1961); Jaffe, The Judicial Enforcement
of Administrative Orders, 76 Harv. L Rev 865, 892 (1963).
BEYERL CHEVROLET, INC.
the certification period be explicitly extended for 1 year
from the date when Respondent commences to bargain in
good faith-.29 In view of the defection of the union
membership brought about as a direct result of Respon-
dent's continuing unfair labor practices programmed
toward that end, Respondent should be required to furnish
the Union with lists of the names, addresses, job classifica-
tions, and wages of all employees in the bargaining units
and to, keep such lists current for said 1-year period, so as
to facilitate the carrying out of the Union's representation-
al 'responsibilities and its reclaiming of the allegiance of the
units"employees.30 Respondent should also be required`to
allow reasonable access by the Union to bulletin boards on
Respondent's premises for the purpose of reenlisting its
defected members into active membership and into such
full organizational participation as the Act guarantees 31
Finally, since this is the third similar case in as many years,
it is only fair that Respondent, and not the Charging Party,
should bear the expense thereof. I` shall therefore recom-
mend that Respondent shall reimburse the Charging Party
for its out-of-pocket litigational expenses in this proceed-
ing,32 as well as for the new organizational expenses
Respondent has necessitated,33 in a reasonable amount.
There should come a time when a lesson is learned and
further recidivism discouraged. It would seem that regard
for and economical administration of the Act's commands
warrant the conclusion that three cases are enough for this
purpose. No novel question of law or significant question
of fact is presented by this case, which may,therefore
hardly be considered to raise "debatable" issues within the
policy clarification recently announced by the Board in
Heck's, Inc., 215 NLRB No. 142. Payment of the
litigational and organizational expenses of the .party which
has been subjected, to the necessity of three similar
proceedings to date will not only make whole a wronged
party vindicated for the third time, but should hopefully
also serve to discourage a fourth and further such
proceeding.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this consolidat-
ed proceeding, and pursuant to Section 10(c) of the Act,
there is hereby issued the following:
29 That such a provision is by no means unusual, see, e g, N L R B v
Bradenton Coca-Cola Bottling Company, 402 F 2d 84, 85 (C A. 5, 1968),
N L R B v. Miami Coca-Cola Bottling Co, 382 F.2d 921, 924 (C A 5, 1967);
N L R B v. Commerce Company, 328 F 2d 600, 601 (C A 5, 1964), cert
denied 379 U.S 817, John Singer, Inc., 197 NLRB 88, Bona Allen, Inc, 195
NLRB 786, 788 (1972), enfd 472 F 2d 1406 (C A 5, 1973), The Hartford
Fire Insurance Company, 191 NLRB 563, 572 (1971), enfd. 456 F 2d 201
(C.A. 8, 1972), Mar-Jac Poultry Company, Inc, 136 NLRB 785, 786-787
(1962) In legal contemplation, the "certification year" is not deemed to
start running until the employer commences bargaining in good faith as
required. W B Johnston Grain Company v N L R B, 365 F 2d 582, 586-587
(C A 10, 1966), Poole Foundry & Machine Co v NLRB, 192 F.2d 740,
742-743 (C A 4, 1951), cert denied 342 U S 954, Fred Tuck Buick, 199
NLRB 876 (1972), Mar Jac, supra
19 Such a requirement is likewise far from novel See, eg, Tudee
Products, Inc, 194 NLRB 1234, 1236 (1972) enfd. as modified 502 F2d 349
(C A D.C, 1974), cert denied 417 U S. 921 (1974), and 421 U S 891 (1975),
John Singer, Inc, 197 NLRB 88 (1972); Hecks, Inc, 191 NLRB 886, 887-
888 (1971 ), modified 476 F 2d 546 (C A D C), modified 417 U S 1 (1974),
and 215 NLRB No 142 (1974); American Enterprises, Inc, 191 NLRB 866,
870-871 (1971)
31 Cf Tiidee Products, Inc, supra, fn 30 Apropos is the Board's reminder
in The Wm. H Block Company, 150 NLRB 341, 342 (1964), that "Our
ORDER 34" _,
725
Respondent Beyer] Chevrolet, Inc., Monroeville, Penn-
sylvania, its officers,, agents, successors, and, assigns, shall:
1. - Cease and desist from:
(a) Failure and refusing to bargain . in good faith with
International Association of Machinists and -Aerospace
Workers, District No. 63, AFL=CIO, as the exclusive
bargaining representative of'-Respondent's employees in
the appropriate collective-bargaining units set forth, below,
and to-embody in' a, signed -contract any understanding,
reached. The appropriate collective-bargaining units are:
a. All service department employees at Respondent's
Monroeville, Pennsylvania, dealership including
all auto mechanics, body and fendermen, appren-
tices, helpers, lubricators, lot boys, recondition-
ers, partsmen, parts truckdrivers and car jockeys;
but excluding all office clerical employees, sales-
men, watchmen and guards, professional employ
ees and supervisors as defined in the National
Labor Relations Act.
b. , All, new and used car salespersons employed at
Respondent's Monroeville, Pennsylvania, facility;
excluding all other employees, service department
employees, office clerical employees and guards,
professional employees and supervisors as de-
fined in the National Labor Relations Act.
(b) Insisting that bargaining unit employees working part
time be excluded from collective agreement coverage,
(c) Failing or refusing to provide or make reasonable,
provision for providing information to said Union -con-
cerning assets and funding and other appropriate and
necessary information concerning Respondent's pension
program or proposed pension program covering, employees
m either of the aforesaid bar-gaining units.
(d) Insisting that any collective- agreement -include a
liquidated damages penalty provision against the Union to
indemnify Respondent against breach thereof.
(e) Placing into effect any wage increase or other change
in terms or conditions of employment of employees in
function under the Act, the Supreme Court has said [N.LR B v.
Steelworkers ofAmerica, CIO [NuTone, Inc], 357 U S. at 364] requires us to
avoid `mechanical answers ' in seeking a `solution of this non -mechanical,
complex problem in labor-management relations' Thus, the evaluation of
the various factors bearing on the validity of the [solicitation] rule must
relate to the `actualities of industrial relations' " Likewise , the Supreme
Court has instructed us that, in our type of society, exercise of that function
"is not a problem of always open or always closed doors for union
organization on company property. . Accomodation between the, two
must be obtained with as little destruction of one as is consistent with the
maintenance of the other " N L R B v Babcock & Wilcox Co, 351 U S. 105,
112(1965)
32 Cf Tudee Products, Inc, 196 NLRB 158, 159 (1972), and reference
supra, fn 30
33 Design of such a remedy was invited by Chief Justice (then Circuit
Judge) Burger in Local 57, ILGWU [Garwin Corp] v N L R B, 374 F.2d
295, 304, fn 22 (C A D C., 1967), cert denied 387 U S 942
34 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order which follows herein shall, as
provided in Sec 102 48 of those Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either of said bargaining units without bargaining in good
faith in regard thereto with the employees' bargaining
representative , or, without giving' reasonable advance
notification to and affording said representative adequate
opportunity to bargain concerning the same; but without
prejudice to any wage increases or economic betterments
heretofore placed into effect.
(f) Engaging in surface bargaining, or other collective
bargaining not in - good faith, without real intention of
reaching agreement with said Union as the collective-
bargaining representative of Respondent's employees in
the aforesaid collective-bargaining units.
(g) In any like or related manner interfering with,
restraining , or coercing ,employees in the exercise of their
right of self-organization ; to form, join, or assist any labor
organization ; to bargain collectively through representa-
tives of their own choosing; to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection; or to refrain from any and all
such activities, except to the extent that such right may be
affected by an agreement lawfully requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Upon request ; bargain in good faith with Internation-
al Association of Machinists and Aerospace Workers,
District No . 63, AFL-CIO, as the exclusive collective
bargaining representative of Respondent's employees in
the aforesaid appropriate collective bargaining units, and
embody in a signed contract or contracts any understand-
ing reached . The required collective bargaining period shall
commence from the date when Respondent commences to
bargain in good faith; and the said Union's certification
with regard to the aforesaid salespersons unit is hereby
extended for a period of 1 year35 from the date when
Respondent commences to bargain in good faith with said
Union in respect thereto.
35 King Radio Corporation, Inc., 172 NLRB 1051, 1080 (1968), enfd. 416
F.2d 569 (C.A. 10, 1969), cert. denied 397 U S. 1007
36 Cf. John Zink Company, 196 NLRB 942 (1972).
37 In the event this Order is enforced by a Judgment of a United States
(b) Upon request, promptly furnish to said Union lists of
all persons currently employed in each of the aforesaid
collective-bargaining units, consisting of their full names,
residence addresses, job classifications, dates of hire, and
rates of pay; and keep said lists current monthly for said 1-
year period.
(c) Upon request, furnish reasonable and adequate
access to said Union to all bulletin boards in Respondent's.
business premises where said unit employees are employed,
upon which notices to employees are normally posted, for
a period of 6 months, for the purpose of posting and
communicating to said employees lawful union organiza-
tional materials and matters.
(d) Upon request, reimburse said Union for its reason-
able legal expenses and disbursements in this proceeding
(Beyerl III) and for its reasonable organizational expenses
incurred in connection with reconstituting the membership
of the aforesaid 'collective-bargaining units, disrupted and
dispelled through Respondent's unlawful actions in viola-
tion of the Act. In the event the parties are unable to agree
upon the amounts thereof, application to determine the
same may be made to the Board (which hereby retains
jurisdiction of this proceeding for that purpose) upon
notice with supporting proof 36
(e) Post m Respondent's Monroeville, Pennsylvania,
premises, both in its service department and in its `sales
department, copies of the attached notice marked
"Appendix." 37 Copies of said notice, on forms provided by
the Board's Regional Director for Region 6, shall, after
being signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where"notices to
employees are, customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the` Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
Court of Appeals, the words in the notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United Slates Court of Appeals Enforcing an Order of the National Labor
Relations Board "