Irvington Motors, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1964

147 N.L.R.B. 565 (N.L.R.B. 1964)

IRVINGTON MOTORS, INC . 565
certed activities for the purpose of collective-bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such right is affected by the provisos in Section 8(a) (3) of the Act.
PINKERTON NATIONAL DETECTIVE AGENCY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 731, if they have any question concerning this notice or
compliance with its provisions.
Irvington Motors, Inc. and Retail Clerks Union Local 1049, affili-
ated with Retail Clerks International Association , AFL-CIO.
Case No. 20-CA-1606. June 202, 1964
DECISION AND ORDER
On December 19, 1963, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Decision.
He also found that allegations of other unfair labor practices set forth
in the complaint had not been sustained. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
While we agree with the Trial Examiner that the Respondent, by
unilaterally making payments to salesmen who worked double shifts
and by unilaterally setting minimum quotas on gross profits from
i The Trial Examiner erroneously found that 6 weeks elapsed between the transmission
of Local 1049's written proposals and the first negotiating meeting. The proposals were
transmitted by letter dated November 9, 1962, at most only 11 days before the first meet-
ing. The Trial Examiner also erred in finding that no discussion was directed to double
shifts or payment therefor, since there was uncontradicted testimony by the Union's
secretary-treasurer, Nat Trachman, to the contrary. We correct the Decision accordingly.
However, neither modification would alter the ultimate findings of the Trial Examiner.
147 NLRB No. 71.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sales.of its employees, violated 'the Act, we do not believe that the re-
quirement that salesmen make five truck telephone calls per day was so
clearly beyond a normal management function as to require prior
notice to and consultation with the Union 2 Accordingly, we do not
adopt the Trial Examiner's finding that by this change Respondent
violated Section S (a) (5).
ORDER
Pursuant to Section' 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondent, Irvington Motors, Inc., its officers, agents, successors.
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the-following modifications :
Paragraph 2 (a) is amended by deleting the words "truck sales calls,"
and the first indented paragraph of the notice is similarly amended.
2 For purposes of decision in this case, we find it unnecessary to reach or decide the ques-
tion whether the telephone call requirement is a mandatory subject of bargaining.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard upon the complaint 1 of the General Counsel of the National
Labor Relations Board, herein called the Board, alleging that Irvington Motors, Inc.,
herein called Respondent, had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) and (5) of the National Labor Rela-
tions Act, herein called the Act. Respondent's answer to the complaint admitted
some of its allegations and denied others; in effect, it denied the commission of any
unfair labor practices. Pursuant to notice, a hearing was held before Trial Ex-
aminer Harold X. Summers, at Newark, New Jersey, on September 30, and Octo-
ber 1, 1963. All parties were afforded full opportunity to examine and cross-
examine witnesses, to argue orally, and to submit briefs. Briefs filed by the General
Counsel, Respondent, and the Charging Party, have been fully considered.
Upon the entire record 2 in the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, a New Jersey corporation with principal office and place of business
at Irvington, New Jersey, is, and at all times material has been, engaged in the
retail sale and repair of new and used automobiles, trucks, and related products.
In the course and conduct of its operations during the 12 months preceding the
issuance of the complaint herein, which period was representative of all times mate-
rial herein, it sold and distributed products the gross value of which exceeded
$500,000; and it purchased and received goods and materials, valued in excess of
$50,000, from the Ford Motor Company, which goods and materials, having
originally been received from points outside the State of New Jersey, were shipped,
to Respondent from a Ford Motor Company distribution depot located within the
State of New Jersey.
'The complaint was issued July 10, 1963. The charge Initiating the proceeding was
filed May 22, 1963.
On November 7, 1963, I issued an order to show cause why the transcript of the hear-
ing should not be corrected in specified respects. No good cause to the contrary having
been shown, the corrections Indicated in the order to show cause, which is received in evi-
dence as Trial Examiner 's Exhibit No. 1, are hereby ordered made.
IRVINGTON MOTORS, INC. 567
I find that Respondent is an employer engaged in commerce within the meaning
of the Act.
II. THE UNION
The Charging Party, Retail Clerks Union Local 1049 , affiliated with Retail Clerks
International Association , AFL-CIO, hereinafter called Local 1049, is a labor orga-
nization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
Pursuant to a Board proceeding , Local 1049 was certified as bargaining repre-
sentative for Respondent's salesmen on November 6, 1962. Contract negotiation
meetings were held on November 20, December 4, and December 27, 1962, and on
January 9 and 29, and April 4, 1963. No collective-bargaining agreement had been
reached by the time the last meeting was held nor, indeed , by September 30, 1963,
the date this hearing opened.
The issues as framed by the pleadings and by contentions and defenses put forth
at the hearing were:
(A) whether Respondent , on specified . dates and during specified periods
within 6 months prior to the filing of this charge , had unilaterally changed the
working conditions of salesmen represented by Local 1049 without notice to or
consultation with Local 1049, by
(1) making a change in its policy with respect to paying salesmen for
working "double shifts";
(2) installing a program whereunder salesmen were required to make
a specified minimum number of telephone calls for the purpose of increas-
ing truck sales;
(3) establishing minimum quotas for monthly gross profits from sales;
(4) directing telephone calls from auto sales prospects to members of
management instead of to salesmen; and
(5) requiring salesmen to be at specified places for .the receipt of tele-
phone calls from new sales prospects; and
(B) Whether Respondent; in its . dealings with Local 1049, negotiated in bad
faith and with no intention of arriving at agreement-in effect , refusing to ful-
fill its bargaining obligation.
The General Counsel contends that the available evidence calls for an affirmative
answer to each of these stated issues. Respondent denies that it unilaterally made
changes in working conditions or, in the alternative, asserts that whatever changes
were made in the regular course of business , unrelated to union considerations; and,
further, it denies any refusal to bargain-on the contrary , asserts that it has bar-
gained , and is ready to continue bargaining , in good faith.
B. Pay for double shifts
Under normal conditions , Respondent 's auto and truck salesmen 9 have worked
either of two shifts-from 9 a.m. to 4 p.m. or from 4 p.m. to 10 p.m 4 The.shift
arrangements for any week are fixed by a schedule posted on Friday of the previous
week.
Because of the necessity for keeping the sales floor fully "covered" at all times,
there have been occasions , during the entire relevant period , during which salesmen
were required to work a so-called double shift-i.e., from 10 a.m . to 10 p.m. So far
as this record reveals , such occasions numbered less than one per week per man.
Here again , weekly assignments to double shifts appeared on the schedule posted the
previous Friday.
Prior to the certification of Local 1049 , and afterward until January 1963, sales-
men received no extra compensation for working double shifts. Their weekly salary
(exclusive of commissions ) was $75 for a 6-day week , with no additional compensa-
tion for any double shift worked during the week.
3 Here found to constitute an appropriate bargaining unit represented by Local 1049 at
all times relevant hereto.
* A salesman working on the second shift "reports In" at 10 a .m. but does not actually
begin floor duty until 4 p.m.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1963, a change occurred. Thereafter, at least into July,5 salesmen
were paid an extra $12.50 for each double shift worked.6 The change was put into
effect without advance notice to or consultation with Local 1049.7
Respondent's defense, as I understand it, is that the change was occasioned by
circumstances unrelated to union considerations. Its salesmen were expressing dis-
satisfaction with the pre-January arrangement: they often complained that the double
shift interfered with social plans, and they complained of being asked to work extra
time without compensation. The change made, allegedly, was that, after January,
double shifts would be on a mandatory rather than on a voluntary basis but that
they would carry with them extra compensation.
(To the extent it may be material, I find that, in fact, there was no change in the
"voluntary" nature of the double shift assignment. Prior to January 1963, the
Friday work schedules for the following weeks, including double shift assignments,
were posted without prior consultation with the salesmen ; if it turned out that a
salesman was unable to work an assigned double shift, he would be excused. In
effect, this same procedure was followed after January 1963.)
Whatever the reason, this constituted a change in working conditions, made with-
out notice to or consultation with Local 1049, in derogation of Respondent's
bargaining duty.e
C. The truck telephone calls
On January 2 or 3, 1963, Respondent's salesmen were told by Dennison Ellis,
Respondent's sales manager,9 that Ford Motor Company, Respondent's supplier,
had complained about Respondent's low truck sales, and he informed them that,
thereafter, they would be required to make five daily telephone calls soliciting new
truck business. Failure to comply on the part of any salesman , they were told,
would result in his not being allowed to work during the following workday, with
a resultant ($12.50) loss in pay.
This program was put into effect 10 without notice to or consultation with
Local 1049.
Respondent urges, in justification, that it was the duty of salesmen to sell trucks
as well as passenger automobiles; 11 that truck sales had, in fact, been low, the
subject of complaint by Ford; that, from time to time in the past, various sales
promotional campaigns, involving salesmen, had been instituted; and that, at any
rate, the sanction-suspension for the next working-session-had never been imposed.
As urged by Respondent in another respect, I recognize that the welfare of a sales
enterprise (and of its salesmen) depends upon the amount of business it (and they)
can promote; and I would be less than realistic were I not to recognize that sales
promotional programs, "pep" talks, and sales "gimmicks" are normally manage-
ment prerogatives with which the bargaining representative of the salesmen would
not be concerned. But where, as here, the program in question calls for the per-
formance of certain acts by salesmen under pain of loss of employment, I find no
such lack of concern. Nor does it matter that the sanction was never imposed;
respect for, if not fear of, the sanction must necessarily motivate the salesmen's
conduct, and subsequent leniency dispensed by the employer does not change the
original nature of the employer's action.
I find, in short, that the installation of the truck-call requirement constituted a
change in working conditions, made without notice to or consultation with Local
1049, in derogation of Respondent's bargaining duty.
D. The sales quotas
At the same time-in January 1963-as he announced the establishment of the
policy on truck-sales calls, Sales Manager Ellis decreed that for that month the
5It appears that no double shifts have been worked since July.
8 The basis for arriving at this figure, apparently, was the fact that the normal compen-
sation for each single shift was $12.50 ($75=6).
7 There was some discussion of the hours of work during the negotiations, but these
discussions were not directed to double shifts or payment therefor.
8 N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736;
Smith's Van & Transport Co., 126 NLRB 1059; Rapid Bindery Inc., etc., 127 NLRB 212,
220, enfd. In relevant part, 293 F. 2d 170 (C.A. 2) ; Northwestern Publishing Company,
144 NLRB 1069.
8 Stipulated and here found to be a supervisor within the meaning of the Act.
10 And maintained for approximately 1 month.
u I find this to be so, despite one witness' testimony that he did not recall being hired
as a truck salesman.
IRVINGTON MOTORS, INC. 569
gross profit from each salesman's sales must equal or exceed $2,800; and that for the
month of February, the gross profit must equal or exceed $2,500. This was the first
occasion upon which any such quota or minimum had ever been established; and,
although it occurred while Respondent and Local 1049 were engaged in a series of
meetings, no mention of the subject was ever made to Local 1049.
Clearly, the establishment of such quotas, without notice to or consultation with
Local 1049, was a unilateral act performed in derogation of Respondent's duty to
bargain.12
E. The diversion of telephone calls
The General Counsel asserts that, acting unilaterally and without notice to or
consultation with Local 1049, Respondent, during April and early May 1963, made
a change in its policy of referring telephone calls emanating from new car prospec-
tive customers. Specifically, he urges that, during this period, Respondent caused
such calls, normally referred to its salesmen, to be diverted to members of manage-
ment, or "the house." 13
At all times pertinent, Respondent's salesmen working on the sales floor at the
same time have utilized a rotary system. A customer entering the premises is ap-
proached by the first, or "up," man; the other salesmen, progressively, move toward
the "up" position as more customers came in. Thus, the relative positions of the
salesmen change as the customer situation changes. Those behind the "up" man
at any given time, except for the last one, are known as "middle" men. The last
in line at any time is the "phone" man, who has the responsibility (and privilege)
of receiving incoming telephone calls from prospective customers.14
Testimony adduced at this hearing does not support the General Counsel's position
that during April and early May 1963, sales calls were diverted from salesmen to
management. Making due allowances for the fact that the passage of time may
have dimmed witnesses' memories-no one kept records of the actual number of
sales calls received during this or any other period-I find that the testimony of the
General Counsel's witnesses in this respect 15 is amply rebutted by that of Respond-
ent's witness, the switchboard operator during the period in question.16 Moreover,
records of Respondent's sales, in the record, do not show the increase of "house deals"
for the period which one might reasonably have expected to result from such action.
In short, I find failure of proof with respect to this contention of the General
Counsel.17
F. "Spotting" of sales calls.
The General Counsel contends, and Respondent denies, that Respondent, subse-
quent to the certification of Local 1049 as bargaining agent on November 6, 1962,
established a requirement that the "phone" salesman-see above-be at a specified
place or places to receive the prospective sales calls referred to in the last prior sec-
tion herein.
Although the record in this respect is something less than complete, the credited
and uncontradicted testimony establishes, and I find, that Respondent's rules on the
matter have varied from time to time in the past; that, on occasion, confusion has
resulted from the lack of regularity; 18 and that, to cure the situation, management,
121 make this finding with the knowledge that, although one or more salesmen did not
reach the prescribed quotas, no punitive action was taken. For the reason indicated in
the last prior section herein, I regarded Respondent's failure to "follow through" as
Irrelevant.
"The natural effect of such action, if taken, would be to decrease-by the extent that
such calls resulted in sales-commissions paid to salesmen.
14 I.e., individuals calling in and expressing interest In a new car , but not asking for any
specific salesman or representative of Respondent. Calls from the latter group are re-
ferred to the person named.
15 Typical testimony, paraphrased : "No calls during the period." "We did not receive
any to speak of," "very few, if any . . . maybe two or three," "a lot less."
1e Respondent's witness testified: "There was no change . . . I was never instructed to
divert phone calls and I did not divert."
17 As will be seen infra, the subject of routing sales calls to salesmen had been dis-
cussed at negotiating meetings held earlier-in December 1962. Although a witness pre-
sented by the General Counsel characterized Local 1049's position thereon as a "com-
plaint," it seems obvious that there could have been no complaint of an action allegedly
occurring 4 months later.
18 Salesmen have complained to the switchboard operator about losing their turn ; at
least once, there was an argument on the floor; another time, a pushing- and-shaving
match resulted in a short suspension of two salesmen.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime in the spring of 1963, established a rule that the phone man be available
at a specific spot for the receipt of sales calls. I find further that the rule has on
a number of occasions since its institution , been violated and that Respondent, in
issuing reprimands for such violations , has threatened suspension action.
Eschewing a per se approach, I have given full consideration to the factors which
might throw light on whether such action falls within that area calling for prior
notice to and consultation with a bargaining representative . Without passing on
what might have been the case had Local 1049 asked for a discussion of the rule,
either proposed or already in effect, I am persuaded that no bargaining duty was
violated by Respondent 's action here. It seems to me that this was an alteration of
a day-to-day routine operating procedure, bottomed upon sound reason uncon-
nected with union considerations , which management was entitled to effect as it did.
I do not believe that the effectuation of the principles of the act is furthered by any
remedy herein.
G. Respondent's course-of-bargaining conduct
1. The facts
The General Counsel , in arguments and briefs , contends that Respondent has not
bargained in good faith with Local 1049-on the contrary, has merely gone through
the motions of bargaining with a fixed intent never to reach agreement or to enter
into any final or binding collective -bargaining contract . Respondent , on the other
hand, asserts that it has bargained in good faith at all times and that it is willing to
continue such bargaining.
In order to measure the good faith of Respondent , it becomes necessary , inter alia,
to set forth the bargaining chronology in greater detail than that found in the section
entitled "A. Background and issues," supra.
At the conclusion of a Board-conducted election won by Local 1049 on October
29, 1962, Local 1049 made its first ( an oral ) request for a preliminary discussion
on a bargaining agreement , a request confirmed in writing the next day by counsel
for Local 1049. On November 5, Respondent, through its then attorney, stated
that everything possible would be done to arrange a meeting but that, as of that time,
due to other engagements , a definite date could not be set. Certification of Local
1049 having been issued on November 6, Local 1049 requested a meeting date dur-
ing the following week; 2 days later it sent Respondent 's counsel a list of bargaining
requests-hereinafter called Local 1049's written proposals-for review before the
first meeting. Crossing the last communication was a letter from Respondent's
counsel , dated November 9, suggesting a meeting for November 20.
At this time , brief reference must be made to the written proposals. The docu-
ment, entitled "Bargaining Requests" and not purporting to contain contract language,
noted conditions of work which-Local 1049 believed-should be in the collective-
bargaining agreement about to be negotiated . Many of the conditions constituted
acceptance of conditions then existing ; a number constituted changes. Among the
changes desired were the following:
(1) Work-hours and the work week. Salesmen were to work single shifts
(during the same hours as then in effect ) except on Wednesdays or Saturdays;
salesmen 's work week to be equalized ; one hour off for lunch or supper.
(2) The pay plan. For new cars, the pay scale and method of computation
was to be the same as that then in effect ($75 salary per week, plus 20 percent
of the profit realized ) except that the "get-ready" charge of $67.50 per car
sold was not to be added to Respondent 's cost for the purpose of computing
the profit made on that car. (For used cars, the proposal was that commission
be 4 percent of selling price , with a $15 minimum and no maximum , the same
as the plan then in existence .) Salesmen , collectively , were to receive, from
sales by management-"house deals"-a sum equal to what would have been
the commission had a salesman made the sale. .
(3) Right to purchase own car . Each salesman would be entitled to pur-
chase one car annually at Respondent's cost (instead of at .$25 profit to
Respondent).
(4) Sick leave . Eight days per year ( instead of none).
( 5) Welfare fund. Payment by Respondent of three percent of salesmen's
payroll to Local 1049 Welfare Fund.
(6) Seniority in layoffs.
(7) Severance pay. One week 's pay for each year of service.
( 8) Arbitration of grievances.
( 9) Contract to contain union security and dues checkoff clauses.
IRVINGTON MOTORS, INC. 571
The parties held their first meeting on November 20, 1962. Present for Re-
spondent were William Newman, its then attorney, Otto F. Ploetner, president
(herein called Ploetner, Senior), and Otto H. Ploetner, vice president (herein called
Ploetner, Junior); for Local 1049, Samuel Weitzman, its attorney, Ira Berkeley,
president, and Nat Trachman, secretary-treasurer.19 During the first third of the
11/2-hour meeting, Respondent questioned, and Local 1049 defended, the "propriety"
of that labor organization's representing automobile salesmen . In the course of
this discussion, Local 1049 alluded to the welfare benefits available to its members,
and some time was expended in a discussion of the welfare fund. Copies of the
Union's welfare fund agreement were given to Respondent for review.
For all practical purposes, this was the only one of Local 1049's written proposals
which was discussed at this meeting. Attorney Newman announced early that his
client had not had sufficient time .to review Local 1049's proposals. It soon developed
that this was Respondent's first exposure to the proposals received by its attorney
6 weeks earlier; because, it was explained, he had been out of town, Respondent's
main representatives had not even been told of the existence of the proposals. Local
1049 agreed that Respondent needed additional time to study the proposals.
The second meeting of the parties took place on December 4. At this meeting,
Respondent rejected Local 1049's proposals for sick leave and severance pay. Also
it rejected Local 1049's proposals with respect to work hours and the salesmen's
privilege of buying a new car annually, to the extent that such proposals constituted
a change from existing practices. Finally, it agreed with Local 1049's proposals on
the routing of sales calls to salesmen, vacations, and payment for holidays-none of
which called for changes in existing practices.
Respondent made one counterproposal 20 at this meeting. In answer to Local
1049's wage proposal,21 Respondent counterproposed that the pay system be over-
hauled: that, instead of salesmen receiving a $75 weekly salary plus 20 percent of
the gross profit on new cars sold (after deducting the "get-ready" charge), they
receive instead a straight 25 percent of the gross profit (with no deduction for the
"get-ready" charge). After making calculations based upon sales figures furnished
by Respondent, Local 1049 rejected the counterproposal as constituting a pay
decrease.
Also at this meeting, Respondent requested that Local 1049 submit proposed
contract language contemplated by its "house-deal" proposal.
The third meeting took place on December 27. At this (or-immaterial herein-
the next) meeting, Respondent agreed, in principle, to Local 1049's proposal that
grievances be arbitrated. There were no changes in previously described positions
on sick leave, severance pay, work hours, new-car privilege, or the routing of sales
calls. No progress was made on the pay differences; and it became apparent, at or
about this time, that, although there was agreement, in principle, on holiday and
vacation pay, the actual amount to be paid therefor would be dependent upon the
resolution of the general pay question.
At this meeting, the welfare program was discussed at length. Respondent offered
to make payments into Local 1049's welfare fund of 2 percent of the salesmen's
earnings, up to a maximum of $240 per man per year. Representatives of Local
1049 pointed out 22 that the welfare fund, as already set up, had the approval of the
Internal Revenue Service and that it was impossible to deviate from the 3 percent
payments as approved.
The fourth meeting, held on January 9, 1963, brought the parties no closer to agree-
ment. Although many of the issues were further discussed, none of them was
resolved. At one point, Local 1049 requested Respondent to submit written counter-
proposals, a request which Respondent rejected. Counsel for Local 1049 asked
19 These were the participants in all six meetings held, with the following exceptions:
two salesmen-employees appeared at the third meeting, a third salesman-employee ap-
peared at the fourth meeting, and Edward Schwartz replaced William Newman as Re-
spondent's counsel at the sixth meeting.
20 This finding is based on the testimony of Ploetner, Senior, that this is the only
counterproposal he could recall having been made at this meeting. There was some con-
fusion, in this record, as to whether a counterproposal as to welfare payments was made
at this or the next meeting; based in part in the instant finding, I conclude that the
welfare fund counterproposal, was made at the third meeting.
21 As noted supra, Local 1049 had asked only that the "get-ready" charge not be de-
ducted from gross profit in computing the 20 percent commission.
22I so find on the credited testimony of General Counsel' s witness Trachman, although
Ploetner, Senior, in testifying, did not recall this,
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ploetner, Senior, if he would give the Union a contract containing the conditions
existing at the time of Local 1049's certification; Ploetner's answer: "No, I insist
that the salesmen work on a straight commission basis."
At the fifth meeting, that of January 29, there was no narrowing of the area of
disagreement. If anything, the breach became wider: Respondent, having received
the contract language sought by Local 1049 on "house deals," rejected it.
At the same meeting, Local 1049, upon Respondent's request, turned over a copy
of a contract between Local 1049 and a competitor of Respondent.
The next and last meeting was held on April 4 23 at the office of Respondent's
new attorney, Edward Schwartz. It lasted from 15 to 30 minutes.
For the first time, the union shop and dues checkoff requests of Local 1049, as
contained in its written proposals, were discussed. Respondent took the position
that it would only operate an open shop and that it would deduct and transmit dues
only of members of Local 1049.
There was some consideration of the "competitor" contract given Respondent at
the previous meeting.
When further discussion failed to narrow the issues, representatives of Local 1049
expressed the opinion that "we are getting nowhere." It was suggested that, since
Schwartz was a newcomer to the negotiations, he get together with his client and sub-
mit a written counterproposal, a suggestion with which he agreed 24
Respondent, through counsel, submitted a contract form, hereinafter referred to
as the written counterproposals, on April 29, 1963.25 The written counterproposals
contained Respondent's position, as above detailed, on the union shop and checkoff,
holiday pay,26 vacations, hours and workweek, grievance arbitration procedure,27
salesmen's car-purchase privileges, pay plan, and welfare fund (2 percent) payments.
Insofar as this record reveals, the counterproposals contained a concession not made
in prior bargaining in at least one respect: Respondent agreed to follow seniority
"whenever possible and expedient." In another respect, a new note was injected:
the counterproposals imposed upon salesmen a sales requirement of producing a
minimum of $2,500 gross profit monthly, under pain of possible discharge.
On May 22, 1963, the instant charge was filed.
By letter dated June 24, Respondent's counsel wrote to Local 1049's counsel, noting
that he had heard nothing from Local 1049 (except with respect to the instant charge)
since transmitting the written counterproposals and that his client "is still ready and
willing to bargain in good faith with [Local 1049] with regard to wage and working
conditions covering the employees in the salesroom department of [Respondent]."
The reply of Local 1049's counsel pointed out that it appeared "completely useless
to meet with you further since it is perfectly apparent to us that the employer has
no intention of bargaining in good faith." Up to the date of this hearing, there have
been no other contracts between the parties since April 4, 1963.
2. Concluding findings
I have gone into the facts surrounding these negotiations in some detail because
I am convinced that this case calls for a determination of whether we here have
"hard bargaining" or "bad-faith bargaining," a determination which requires care-
ful consideration of all the circumstances. It has long been settled that an em-
ployer violates Section 8(a) (5) and (1) of the Act if it fails to bargain in good faith
with its employees' bargaining representative or, absent a contractual provision per-
mitting it, takes unilateral action with respect to any term or condition of employ-
x' In the interim, Respondent's then attorney was out of town. He was replaced in
mid-March.
24 The parties consumed an undue amount of hearing time in testimony and argument
upon the question of whether the request was for a "best and final" offer or for a
"counterproposal." Resolution of the question is immaterial herein.
26 Meanwhile, Local 1049, through counsel, had complained of the delay, stating that
Attorney Schwartz had agreed to submit the proposed agreement within a week after the
last meeting and stating that "For sometime my client has had the feeling that [Re-
spondent ] is not bargaining in good faith in this matter." Schwartz, apologizing for the
delay, attributed it to his having failed to receive necessary figures from his client.
26 This counterproposal, as written, specified that the excused holidays would be without
compensation rather than with compensation. On its face, this would appear to be a re-
treat from Respondent's stated bargaining position at the second meeting, but it appears,
and I find, that this was a typographical error of which all parties were aware.
n The written counterproposals named the American Arbitration Association rather
than (as proposed by Local 1049) the New Jersey Board of Mediation.
IRVINGTON MOTORS, INC. 573
ment without affording the union an opportunity to negotiate concerning such
matters 28 This principle is generally embodied in Section 8(d) which defines the
bargaining obligation as requiring, inter alia, that the parties "meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms or con-
ditions of employment, or the negotiation of an agreement . .. . Although the
obligation does not "compel either party to agree to the proposal or require the mak-
ing of a concession," it does contemplate a willingness to enter the discussions "with
an open mind and purpose to reach an agreement consistent with the respective rights
of the parties." 29 Simply entering "upon a sterile discussion of union manage-
ment differences" 30 is not sufficient. Essentially then, the "ultimate issue whether
the Company conducted its bargaining negotiations in good faith involves a finding
of motive or state of mind which can only be inferred from circumstantial
evidence." 31
I take note that, although 6 weeks elapsed between the transmission of Local
1049's written proposals and the first negotiating meeting, no consideration whatso-
ever had been given to such proposals by Respondent. Instead, at this meeting,
Respondent devoted one-third of the time to attacking, and causing Local 1049 to
defend, the propriety of the latter's status as bargaining representative. I take note
that, with respect to substantially all issues, Respondent was only willing to continue
its existing practices,32 and this only if its counterproposal with respect to a pay plan
were accepted 33
As earlier noted, the parties were at complete odds on the pay plan. Local 1049
asked for a continuance of the existing system-a $75 weekly salary plus 20 percent
of the profit realized from car sales-except that the $67.50 "get-ready" charge
would not be added to Respondent's cost in computing the profit. Adoption of this
plan, it will readily be seen , would result in an increase in salesmen 's compensation,
by $67.50 per car sold. Respondent's counterproposal was that salesmen get no
weekly salary but receive 25 percent of the profits produced, without any deduction
for "get-ready" charges. Respondent's pay proposal was rejected by Local 1049 on
the assigned ground that it constituted a pay decrease. Respondent insisted, on
the other hand, that it meant a pay increase. In its brief, Respondent demonstrates
the basis of its contention: the average profit from the sale of a new automobile
is 24 percent of its selling price, or $400; the average salesman sells 150 units per
year; if paid 25 percent of the. profit each salesman would earn $15,000 yearly-
this, as contrasted with (under the percent system) $75 per week salary, plus a
commission of 20 percent of gross income less $67.50 ("get-ready" charge) per unit
sold, totaling $13,425. This explanation is more ingenious than ingenuous. First of
all, none of the salesmen, under the present system, earns $13,425, or anything like
11.34 Either the number of units sold per year or the average profit per car has been
set too high. I prefer to work with facts and figures in the record-the 1962 sales
records of salesmen Miller and Selva. Miller, selling 144 units, earned $9,456.35
under the existing system; under the counterproposed system, he would have earned
28 Cf. May Department Stores d/b/a Famous-Barr Company v. N.L.R'.8., 326 U.S. 376,
384-386; N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 223-226.
2 L. L. Majure Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5) ; see also
N.L.R.B. v. Darlington Veneer Company, Inc., 236 F. 2d 85, 89 (C.A. 4), and N.L.R.B. v.
Herman Sausage Co., Inc., 275 F. 2d 229, 231-232 (C.A. 5).
ao N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 402.
si N.L.R.B. v. Reed cC Prince Manufacturing Company, 205 F. 2d 131, 139-140 (C.A. 1),
cert. denied 346 U.S. 887.
32 Exceptions: arbitration and (belatedly) limited recognition of the principle of seniority.
Also, contrary to the contentions of the General Counsel and the tCharging Party, I do not
consider Respondent's reaction to and counterproposal with respect to welfare fund pay-
ments as to indicating lack of good faith. While it is true that the Internal Revenue
Service had approved only the plan then in existence, Respondent had no reason to be-
lieve (nor do I) that approval of another plan might not be sought and procured.
11 While I do not find that Respondent's refusal to incorporate existing practices in a
collective-bargaining agreement is of itself a refusal to bargain , I note that this has been
held to be indicative of bad-faith bargaining. N.L.R.B. v. Berkley Machine Works, 1$S
F. 2d 904, 906-907 (C.A. 4) ; and see N.L.R.B. v. Knoxville Publishing Co., 124 F. '2d
875,' 883 (C.A. 6) ; Singer Manufacturing 'Company v . N.L.R.B., 119 F. 2d 131, 136
(C.A. 7), cert. denied 313 U.S. 595; and N.L.R.B. v.. Montgomery Ward & Co., 133,,V, '2d
676, 685, 686 (C.A. 9). -
34 Ploetner, Senior, testified that an average good salesman can make $10 ,000, but that
an average good salesman is "a difficult thing to get." .
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$9,375.44.35 Selva, selling 143 units, earned $9,466.21; under the counterproposed
system, he would have earned $9,371.1438 It is true that, the greater the number
of units sold (and the higher the profits therefrom), the better a salesman will fare
under the counterproposed plan; but the parties, it should be pointed out, were
bargaining in the context of current circumstances.
Thus, I find that the pay plan counterproposed by Respondent was, and Re-
spondent knew it was,37 worse than that then existing. And while I do not consider
that collective bargaining need be a "one-way street"-upward-I do believe that
the deception here practiced by Respondent bears upon its state of mind in
bargaining.38
I take note that, at the fourth meeting, Respondent refused to put its counter-
proposals in writing. When it did submit counterproposals, 31/2 months later, it
inserted a new work requirement, a monthly sales quota-an item which had not
previously been discussed but which had been the subject of unlawful unilateral
action heretofore found.39
Bearing upon Respondent's good faith in bargaining are the unilateral acts. As
I have found, Respondent, while these negotiating meetings were being held, uni-
laterally changed working conditions without notice to or consultation with Local
1049 (see sections entitled "B. Pay for double shifts," "C. The truck telephone calls,"
and "D. The sales quotas," supra), in derogation of its bargaining duty.
Having carefully considered all the facts and circumstances above recited, I con-
clude that, on and after November 23, 1962,40 Respondent was engaged in surface
bargaining without the intention of reaching an agreement consistent with the rights
of the parties and, consequently, that it did not bargain with the good faith required
by the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent unilaterally changed working conditions in viola-
tion of Section 8(a) (5) of the Act, I shall recommend that it shall not , in the future,
unilaterally change working conditions without notice to and consultation with
Local 1049 and that upon request , to the extent it has not already done so , it shall
restore working conditions relating to pay for double shifts , truck sales calls, and
sales quotas to their status predating such unilateral changes. Having found that
Respondent has failed to confer in good faith in violation of Section 8 (a) (5) of
the Act, I shall recommend that it bargain collectively, upon request , with Local
1049 as exclusive representative of the employees in the appropriate unit and, if an
understanding is reached , embody such understanding in a signed agreement.
As the unfair labor practices committed by Respondent are of a character striking
at the roots of employee rights safeguarded by the Act, it will also be recommended
that they cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
ss Arithmetically , I compute that the gross profit on cars he sold , not deducting "get-
ready" charges, was $37,501.75.
3° Twenty-five percent of $37 , 484.55.
37 This finding is fortified by.another circumstance : Respondent, at the third meeting,
refused to sign a contract containing existing conditions unless the counterproposed pay
plan were included ; I think I may fairly infer that this Employer was not consciously In-
sisting on a contract better than that which the Union was requesting.
38 As one court so aptly stated : "It is difficult to believe that the Company with a
straight face and in good faith could have supposed that this proposal had the slightest
chance of acceptance by a self-respecting union, or even that it might advance the negotia-
tions by affording a basis of discussion ; rather , it looks like a stalling tactic by a party
set upon maintaining the pretense of bargaining." N.L.R.B. v. Reed & Prince, supra,
at 139:
sB The Board and the courts have held that an employer 's insistence upon reduction of
employees ' benefits may be properly taken Into consideration in appraising the employer's
good faith in bargaining. Cathey Lumber Company, 86 NLRB 157 , 167-168; North-
eastern Indiana Broadcasting Co.; Inc., 88 NLRB 1381 , 1382 ; N.L.R.B. v. Deena Artu,are,
Inc., 198 F. 2d 645, 648 , 650 (C.A. 6), cert. denied 345 U.S. 906.
au The 6 months prior to the filing of the instant charge.
IRVINGTON MOTORS, INC. 575
Upon the foregoing factual findings and conclusions and upon the entire record in
the case, I come to the following'
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1049 is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent's automobile and truck salesmen constitute, and at all times ma-
terial herein constituted, a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Local 1049, on and since November 23, 1962, has been and is the exclusive
representative of all employees in the aforesaid bargaining unit within the meaning
.of Section 9(a) of the Act.
5. On and since November 23, 1962, by unilaterally changing working conditions
relating to pay for double shifts, truck sales calls, and sales quotas without notice to
or consultation with Local 1049, and by failing, within the meaning of Section 8(d)
of the Act, to confer in good faith with respect to wages, hours, and other terms of
employment and with respect to the negotiation of an agreement, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby
issue the following:
RECOMMENDED ORDER
Irvington Motors, Inc., of Irvington, New Jersey, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Making any unilateral changes in working conditions without notice to and
consultation with Retail Clerks Union Local 1049, affiliated with Retail Clerks In-
ternational Union, AFL-CIO, the representative of a bargaining unit consisting of
its automobile and truck salesmen.
(b) Refusing to bargain collectively with the above labor organization over work-
ing conditions governing the employees in the above unit.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or, assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any and all such
activities (except to the extent that the right to refrain may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act).
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Upon request, restore working conditions relating to pay for double shifts,
truck sales calls, and sales quotas, to the extent it has not already done so.
(b) Upon request, bargain collectively with the above labor organization as
the exclusive bargaining representative of all of its employees in the above-described
unit.
(c) Post at its place of business at Irvington, New Jersey, copies of the attached
notice marked "Appendix." 41 Copies of such notice, to be furnished by the
Regional Director for the Twenty-second Region, shall, after being duly signed by an
authorized representative of Respondent, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
41 If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. If the Board 's Order is enforced by a decree of the United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order."
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by Respondent to insure that such notices are not
altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-second Region , in writing , within
20 days from the date of the receipt of this Decision , what steps the Respondent has
taken to comply herewith.42
If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Twenty-second Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we notify our employees that:
WE WILL NOT, in the future, change working conditions relating to pay for
double shifts, truck sales calls, and sales quotas without notice to and con-
sultation with Retail Clerks Union Local 1049, affiliated with Retail Clerks
International Association, AFL-CIO, the bargaining representative of our auto-
mobile and truck salesmen.
WE WILL, upon request, restore such working conditions to what they were
before we made unilateral changes, to the extent we have not already done so.
WE WILL, upon request, bargain collectively with the above labor organiza-
tion as exclusive bargaining representative of the above employees, with respect
to rates of pay, wages, hours of employment, and other conditions of employ-
ment; and WE WILL, if an understanding is reached, embody any such under-
standing in a signed agreement.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to organize; to form, join, or assist a
labor organization; to bargain collectively through a bargaining agent chosen
by themselves; to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; or to refrain from any such
activities (except to the extent that the right to refrain is limited by the lawful
enforcement of a lawful union-security requirement).
IRVINGTON MOTORS, INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 Na-
tional Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Boge Iron and Metal Co., Inc. and Teamsters Union Local 795,
affiliated with The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America . Cases Nos.
17-CA-2253 and 17-RC-4181. June 22, 1964
DECISION AND ORDER
On March 6, 1964, Trial Examiner John P. von Rohr issued a com-
bined Decision and Report on Objections in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease and
147 NLRB No. 73.