Nickey Chevrolet Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1970

180 N.L.R.B. 1079 (N.L.R.B. 1970)

NICKEY CHEVROLET SALES, INC.
Nickey Chevrolet Sales, Inc. and American
Federation of Professional Salesmen. Case
13-CA-8623
February 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On July 14, 1969, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent 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 Trial Examiner's Decision. 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, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations= of the
Trial Examiner.
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
Recommended Order of the Trial Examiner, and
orders that the Respondent, Nickey Chevrolet Sales,
Inc., Chicago, Illinois, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
'These findings and conclusions are based, in part , upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted . The Trial Examiner 's credibility findings are not contrary to the
clear preponderance of all relevant evidence . Accordingly , we find no basis
for disturbing those findings . Standard Dry Wall Products , 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3).
In its exceptions, the Respondent alleges bias and prejudice on the part
of the Trial Examiner . Upon a careful analysis of the whole record, we
find nothing to support Respondent 's allegations . Accordingly, they are
rejected , as lacking in merit.
'Fn. 7 of the Trial Examiner ' s Decision is hereby corrected to read as
follows:
In the event this order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board " shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1079
JOHN M. DYER, Trial Examiner: American Federation
of Professional Salesmen, herein called the Union, on
September 4, 1968,' filed the initial charge in this case
against Nickey Chevrolet Sales, Inc., herein variously
called Respondent, the Employer, or the Company,
alleging that Respondent had refused to meet and
negotiate in violation of Section 8(a)(5) and (1) of the Act.
Subsequently the Union on October 14 filed its first
amended charge, additionally alleging that Respondent
had threatened to discharge its employees because they
were engaged in a strike against it. On October 28, the
Union filed its second amended charge further alleging
violations of Section 8(a)(3), (5), and (1). On January 31,
1969, the Regional Director issued the complaint herein,
which in substance alleges that Respondent refused to
bargain in good faith with the Union since on or about
July 2, 1968, and committed individual violations of
Section 8(a)(5) as well as various 8(a)(1) violations. The
complaint further alleges that the strike which began on
October 6 was caused or prolonged by Respondent's
violative acts. Respondent in its February 10, 1969,
answer admitted the requisite jurisdictional facts and the
status of the Union as well as the appropriateness of the
unit and that the Union, after winning a secret-ballot
NLRB election conducted June 5, had been certified June
13, and was since that time the collective-bargaining agent
of the unit employees.' Respondent denied the commission
of any unfair labor practices and that it had negotiated
with the Union in bad faith, claiming it had met
repeatedly with the Union and attempted to reach a
contract. Respondent while admitting the fact of the strike
denied it was caused or prolonged by unfair labor
practices.
During the hearing Respondent moved to dismiss the
violative allegations of the complaint for failure of proof
and I reserved ruling on Respondent's two motions and
am disposing of them by my findings herein. Upon the
failure of proof, I granted General Counsel's motion to
strike testimony offered by Respondent regarding alleged
property damage, supposedly incurred during the strike,
which Respondent offered on the basis that such would be
tied to the Union and would provide the reason for the
anger of one of Respondent's officers in making remarks
to several pickets.
During the hearing in this matter, held March 25
through 27, 1969, in Chicago, Illinois , all parties were
afforded full opportunity to appear, to examine and
cross-examine witnesses, and to argue orally. General
Counsel and Respondent have filed briefs which have been
considered.
On the entire record in this case, including my
evaluation of the reliability of the witnesses based on the
evidence received, my observation of their demeanor,
some self-contradictory testimony, and on the fact that
some portions of the testimony were not denied, I make
the following:
'Unless specifically stated otherwise the events herein took place in 1968.
'The unit is:
All automobile and truck salesmen employed at the Employer's
Chicago, Illinois location , excluding office and plant clericals,
automobile mechanics , semi-skilled help, parts department employees,
guards and supervisors as defined in the Act and all other employees.
180 NLRB No. 172
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent, an Illinois corporation, has its office and
principal place of business at 4501 West Irving Park Road
in Chicago, Illinois, where it is engaged in the retail sale
and distribution of automobiles, trucks, and related
products. During the past year Respondent sold and
distributed products valued in excess of $500,000, of which
automobiles and trucks valued in excess of $100,000, were
shipped to its place of business directly from locations
outside the State of Illinois.
Respondent admits and I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act
11. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
In 1961 Respondent recognized and signed a contract
with Local 701 of the Machinists for a unit of mechanics,
apprentices, and semiskilled workers employed at its
showroom and garage. At approximately the same time
Respondent recognized and signed a contract with Local
731, affiliated with the Teamsters, for a unit consisting of
polishers, undercoaters, utility employees, washers, garage
attendants and parts department employees. Both unions
are still recognized and their current agreements have
continued to contain union-shop clauses.
In the latter part of 1962 Respondent addressed a letter
to its employees in these two units, advising them they
were free to join or not join the unions and that it felt
their best interest would be served by not being
represented by a union. In a resulting case before the
Board (142 NLRB 23), Respondent's conduct was found
violative of Section 8(a)(5) and (I ).
In an unreported Board case (13-CA-5095 and 5096)
issued in 1965, Respondent was found to have violated
Section 8(a)(3) of the Act, and, before the case was
terminated in 1967, Respondent was found to be in
contempt of the order enforcing that case by the United
States Court of Appeals for the Seventh Circuit
Prior to the June 5 election, Respondent distributed at
least four documents, General Counsel's Exhibits 23
through 26, which made rather clear Respondent's
position that it did not want a union for its salesmen.'
Following its election victory, the Union on July 2
wrote Respondent's attorney asking that bargaining begin
'As an example , G C Exh 25, distributed to the salesmen the day of
the election and signed by Respondent 's President Stephani, read as
follows
Unions (any union ), in my opinion , can only hamper, disrupt, damage
or destroy a business and its members . Unions, to my knowledge, have
never promoted harmony which is an essential ingredient of progress in
business
If a majority of our sales force does not have confidence in
management , it is unlikely we shall be able to profitably serve the
customers Let's try to restore and increase that confidence without
outside involvement . We cannot deal in confidence with an organization
or individuals in any way associated with force or violence, hatred or
suspicion . Literature and statements of the union show an attitude of
belligerence and can do only harm to salesmen , customer and company.
within 10 days and stating the Union was willing to meet
at any time or place Respondent wished.
Nathan Sellers, a salesman for Respondent, testified
that, on a Friday about a week or so after the election
during a company meeting of the employees, President
Stephani told the men his door was open. After the
meeting Sellers went in to see Stephani. Sellers
volunteered to Stephani his opinion why the salesmen
voted for the Union, stating the men wanted a decent
commission, hospital insurance, and assurances they
would not be subject to immediate arbitrary dismissal by
the managers. Stephani replied he did not want a union in
there and outsiders telling him how to run his business.
Sellers reminded Stephani he had a Mechanics union and
a Teamsters union and Stephani said he was forced to
have those. This undenied testimony added to the
foregoing together with other indications of Respondent's
sentiment which appeared during the negotiations
demonstrates conclusively that Respondent was biased
against not only this union but any union at its
establishment
In bare outline form, the parties met first in September
after the Union filed a charge with the Board alleging
Respondent was refusing to meet and negotiate. After
three meetings in September the parties were close to a
contract but no agreement was reached and in October the
Union struck. The men went back to work in the latter
part of October and the parties met for further bargaining
sessions into February 1969 but a signed contract was
never achieved.
Basically the question here is whether Respondent acted
in bad faith and tried to prevent coming to an agreement
with the Union. From the series of events in this
relationship, it will be seen that this question must be
answered affirmatively. In reaching this conclusion I have
considered the testimony of all the witnesses and have
noted the conflicts and contradictions in the testimony of
Respondent's bargaining team of President Stephani and
Attorney Ray Poplett It would appear that either they
were not communicating with one another during the term
of the bargaining negotiations or that one or both of them
were not telling the truth in this hearing In any event, it
seems clear from the context of the bargaining that
Respondent's negotiating team of Poplett and Stephani
were not negotiating and making their claims in an honest
and forthright manner, but, as events will show, they were
negotiating with a view towards not consummating an
agreement with the Union herein.
The Supreme Court of the United States held in
N L.R.B. v. Truitt Manufacturing Co, 351 U.S 149, 152,
that "Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest claims."
B. The Course of Bargaining
Following the June 13 certification the Union by its
then president, Emil Pucci, wrote Attorney Poplett on
July 2 that it wished to commence bargaining for a
contract with Respondent, offering to meet at any time or
place. One week later on July 9, Attorney Poplett
responded to the letter asking that in the future mail be
directed to his other office stating that the Company was
willing to start negotiating but asked what the Union's
terms for collective bargaining would be. On July 10,
Union Secretary-Treasurer Griffith sent a telegram to
Respondent reminding it that it must bargain with the
Union in regards to the transfer of ownership, changes in
employees' hours of work, rates of pay, and better
NICKEY CHEVROLET SALES, INC. 1081
working conditions and asking for a bargaining session.
On July 12, Attorney Poplett responded by letter to a
telephone conversation with Pucci, advising that it was
impossible to start negotiating on July 16 and that he
would be in touch with Pucci during the following week to
set up a time for a meeting. Again, Poplett requested a
memo from the Union about what their initial requests for
terms of a contract would be. On August 3, 1968, Union
Secretary-Treasurer Griffith wrote Attorney Poplett
requesting a meeting stating that the Union had not heard
from Respondent since Poplett called off the meeting in
July. As to Poplett's request for a proposal from the
Union, Griffith stated the Union needed clarification and
information on some of Respondent's present working
conditions before it could give a complete concrete
proposal. Again the Union said it was willing to meet at
any time or place. On August 19, Poplett responded to the
August 3 letter saying Stephani had been out of town and
had not yet returned and that he was leaving for a
vacation and expected to be back by Monday, August 26,
and was sure Stephan would be back by then and would
plan to get in touch with the Union by August 29 to set
up a negotiation meeting. Poplett again asked for a short
memo about the initial requirements of the Union. When
Respondent made no move towards setting a date for
negotiation meetings, the Union on September 3 filed the
first charge in this case, alleging that the Company had
until that time refused to meet and bargain with the
Union. Following the filing and service of this charge,
there were some telephone conversations between the
parties and the first negotiation meeting was set for
September 12.
At the first of three meetings held at the Pick-Congress
Hotel, the Company was represented by Attorney Poplett,
President Stephani, and Vice President Ryan and the
Union was represented by President Pucci,
Secretary-Treasurer Griffith, and union members Golden,
Sergott, and Gresko. Respondent brought a tape recorder
to the meeting and prepared to use it. The Union objected
and, after some discussion, it was not used. The second
topic of the meeting was brought up by Respondent's
questioning of who the union officials were, how much
money they made, etc., with Respondent stating it did not
want to deal with hoodlums. The Union responded that
such information was none of the Company's business, but
gave responses indicating that the union officials were
honorable men engaged in a legitimate union.
After some conversation as to why it took so long to
get Respondent to a meeting, the Union produced a
contract proposal which it gave to Respondent's
negotiating team. The Union then went over the proposal
point by point, and there were discussions on some of the
points. According to Griffith, Respondent made no
counterproposals but Attorney Poplett said that they
would make some counterproposals the next day at the
second meeting.
When the second meeting began with the same
participants, the Union, according to Griffith, asked for
the Company's counterproposal. Poplett replied he did not
have it ready and would try to have a written proposal
following that meeting . The parties again went over the
Union's proposal item by item. Respondent's Vice
President Ryan said the Company would like to have
some of its salesmen work Saturday nights. One of the
Union ' s negotiating team agreed that the Company could
experiment with Saturday nights provided the salesmen's
appearance at the showroom was on a voluntary basis
with no scheduled assignments for that time. Other topics
discussed were vacations, recognition, and holidays and an
agreement on a 60-day probationary period for new
employees was reached with both parties making a
concession. At this second meeting, there was also
discussion of the eligibility period for vacation and the
question of layoffs by seniority. The Company wanted
ability considered as one of the criteria in layoffs instead
of a straight seniority basis. Either at the second or third
meeting the Union agreed that ability could be considered
as one of the determining factors The Union agreed to
accept Respondent's then current procedure on
demonstrator cars, but the parties were not clear whether
there was an open question on whether demonstrators
were to be air conditioned or not. The Union's proposals
concerning a putative health and welfare plan and a
pension plan were dropped by the Union after Respondent
strenuously objected to them as "a pig in a poke." The
meeting ended with Poplett and Stephani stating they
would get together in the near future with the Union and
would have a written proposal for the Union with
everything spelled out.
On September 17, the parties met again at the hotel
with Stephani and Poplett representing the Company.
Poplett stated he did not have a written proposal prepared
but would give some proposals to the Union orally and
they could write them down. Poplett read off proposals on
four or five items and the parties then went over the
Union's proposal The parties reached agreement in
principle on the first two articles of the Union's contract
concerning transfer of ownership of the Company and
recognition of the Union, but Respondent wanted to
rewrite both articles. The parties also agreed to the
sections which provided the Company would not foster a
competing union and that the Union would not
discriminate regarding union membership. The parties
again discussed the hours of work clause with the Union
wanting the hours to remain as the Company had
established them but agreeing that Respondent could
experiment with Saturday evening hours as long as the
salesmen volunteered to man the same salesroom during
those hours.
The Union' s original proposal sought a compensation
plan based on a percentage of the price posted on the
"window" or "sticker" price. On June 1, Respondent had
published its salesmen 's compensation plan effective as of
that date (G C. Exh. 3). According to Griffith the Union
agreed to take the Company's compensation plan and
drop its plan during this third meeting of September 17.
In regard to checkoff the Company stated it did not
want dues collections on its premises nor union officials
bothering employees while they were working, and
agreement was reached that there would be a checkoff
clause.
By the close of the meeting the only issue unresolved
was union security. The Company said it would not agree
to a union shop. When queried why it would not do so
when the other two unions had union -shop clauses in their
contracts with Respondent, the Company responded that
it had been forced to do so. The Union argued that
Respondent was making its members second class citizens
since it was according them less than it did the other two
unions. Respondent maintained that it did not believe in
compulsory unionism . Thus at the close of the third
meeting , according to both parties , all the issues except
union security had been agreed to in principle, although
the parties had not seen or agreed to the language for the
various clauses. The Union wanted to see the Company's
complete proposal in writing so that the language could be
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked, and all could be satisfied as to the agreements
reached. According to Griffith, at the conclusion of the
meeting Poplett agreed to prepare a written contract with
all of the language spelled out with the only exception
being no agreement on union security . On this clause the
Union maintained that it had an open mind and was not
closing the door on the Company's open-shop proposal
and would bargain on the question of union or open shop
but needed the Company's proposal for the wording.
Griffith testified that just before leaving this third meeting
he told Poplett he wanted the Company's proposal
because otherwise they could have some misunderstanding
about their agreements.
Attorney Poplett agreed that at the close of the
September 17 meeting there was substantial agreement on
all terms of the contract except that the Union wanted a
union shop.
Griffith had several telephone conversations with
Poplett following the September 17 meeting and Poplett,
on October 2, wrote Union President Pucci, stating he
was confirming a telephone conversation and understood
that the Union was unwilling to meet for further
negotiations unless Respondent produced a written
proposed contract (G. C. Exh. 3). Poplett maintained that
he would not allow the Union to dictate the terms for
bargaining meetings and professed that the Company was
ready to continue bargaining . The Union telephoned
Poplett that it was willing to meet and this point was
obviated.
Poplett, who stated he did not make notes of the
bargaining sessions until a later date during the
negotiations , said that during the third meeting when
asked about the Company's written proposal he responded
that he did not have one and they were not going to
furnish one until they agreed on all the terms of an
agreement . Poplett also recalled a negotiation meeting on
October 4, where the parties maintained their positions on
the union-security issue and a discussion about a written
company proposal reoccurred.
I believe Poplett is confused as to when Respondent
first took the position that it would not present a written
proposal until there was agreement on all issues. The
context of the September 17 meeting with the concessions
made principally by the Union does not admit of this hard
position by the Company and flatly contradicts Griffith's
testimony which was bolstered by his notes. Further the
squabble as to the setting of the fourth meeting would also
demonstrate that the Union had been told Respondent
would furnish it with a written proposal. I therefore
conclude that it was after the September 17 meeting that
Respondent realizing how close it was getting to a
contract with the Union first adopted the position that it
would not prepare a contract proposal until agreement in
principle was reached on all matters.
Respondent grounded this position on statements that it
would not do the Union's work for it, that preparing a
contract proposal was expensive and time consuming, and
that Attorney Poplett was too busy to take time to do so
unless there was complete agreement.
The Union countered this position by stating numerous
times that it could not tell if there was agreement on all
the items until the negotiated principles were reduced to
writing and that it wanted to consider the contract and
maintain an open mind on Respondent ' s open-shop
proposal but had to see what had been agreed on before it
could determine what its course would be.
The Union held a general membership meeting at which
Griffith reported on the status of negotiations with
Respondent and that the Union had never received a
written proposal from the Company and he recommended
that because Respondent had stalled the negotiations and
did not respond with written proposals the only apparent
way to force the Company to take some action was to
strike. A motion from the floor to strike because of
Respondent's unfair labor practices was passed and at a
second meeting held only for Nickey salesmen the strike
date was changed until after the new-car showing. The
men struck on October 5, and on October 9 the Union by
telegram offered to call off the strike providing they got a
contract from the Company containing all the terms and
conditions agreed upon including checkoff and that
Respondent agree to a 2-year contract containing a
union-shop clause and reinstate the salesmen. Respondent
did not reply.
The next negotiation meeting was held October Il in
Attorney Poplett's office. The principal topic at this
meeting was that at least one of the salesmen still had a
demonstrator automobile and the Company said that since
the men were no longer working or were no longer
employees they wanted the cars returned. On October 9,
Vice President Ryan wrote two letters, one to men who
were covered by insurance and the other to those without
insurance . The basic message was that, since they started
their strike on October 5 and did not report for work, the
Company was taking steps to hire and train people to
replace them and, if they did not report for work by
October 12, Respondent would consider the men had
terminated their employment with the Company. Those
who had insurance were told that if they did not report for
work by that date the Company would consider that they
had terminated their employment and would notify the
insurance carrier of such termination so that the men
would have to contact the insurance carrier if they wished
to continue their insurance coverage.
At this October I1 meeting the Company's October 9
letter was discussed with the Company saying it was
planning to cancel the insurance of those on strike. There
was also a discussion about how the strike could be settled
with the Union again asking for a written proposal from
the Company.
After the Union filed an amended charge in this case
alleging that Respondent violated Section 8(a)(3) and (1)
by its October 9 letters, Respondent on October 16 sent
another letter to the salesmen stating that there might
have been some misunderstanding about the previous
letter and that the men's jobs were protected while they
were on strike until such time as Respondent hired
replacements for them. This letter states that in an
economic strike the Company can protect its business by
hiring permanent replacements for strikers and, though it
had not yet done so, it planned to hire permanent
replacements and that the previous letter did not mean
that the men were subject to dismissal for not having
reported to work by October 12.
During the second negotiation meeting held during the
strike, the Company stated that some of its autos had
been damaged and, according to Griffith, Respondent
indirectly blamed the Union. The Union denied any
responsibility for or knowledge of the damage. There was
some discussion that AF of L Unions were not supporting
the strike because the Union was an independent. The
Union again asked for a written proposal from the
Company and there was discussion about a union shop
before the Union towards the close of the meeting
suggested that the Company consider an agency-shop
clause . Regarding union shop Respondent stated again
NICKEY CHEVROLET SALES, INC.
that it had been forced to agree to a union shop by the
other two unions since they had engaged in a strike that
cut off all automobile deliveries. At this meeting the
Union said that if Respondent provided a written
agreement with its proposal it would take the Company's
proposal including an open shop to its executive board
and would abide by the executive board's decision. Poplett
proposed that if the Union would so agree they would
have a written proposal at the next meeting consisting of
the terms in effect when the Union was selected as the
bargaining agent plus a grievance system, which would
vary from the Union's proposal, checkoff clause, seven
holidays, recognition, seniority, and optional Saturday
evening work. Poplett stated the proposal could be given
to the Union's executive board based on the Union' s notes
and if it were willing to take that proposal then Poplett
would write up the proposal.
The next meeting during the strike was held in the
afternoon at Stephani's office on either October 18 or 25.
Stephani and Poplett represented the Company and
Griffith, Pucci, and Sergott represented the Union. After
some discussion of the strike and the contract, Poplett in
Stephani's presence asked whether the Union would
consider a maintenance of membership clause with a
15-day escape period as a replacement of the Union's
security proposal. The number of days the escape clause
should contain was considered with proposals ranging
from 7 to 15 days. After the discussion had lasted an hour
or more, Stephani said he had to leave to meet someone
at the airport. Griffith objected, urging Stephani to stay,
saying they were getting close to an agreement and
Stephani was needed to give final approval. Stephani
replied that Poplett was his attorney and spoke for him
and left.' Griffith testified that at that point they had
agreed in principle on everything but the number of days
in the escape clause and the Union asked for a recess to
discuss the proposal with the men on the picket line. After
meeting with the picketers for some 10 to 15 minutes,
Griffith and Pucci returned to the meeting and told
Poplett the men agreed to go along with the maintenance
of membership clause with a 10-day escape period. Poplett
said that would be okay. They then went to talk to
Stephani's secretary and asked her to stay late and type
up the contract. She refused saying she would not stay
late for anyone. Poplett said he would give it to her the
next day and she agreed to come in the following morning
(Saturday) and type it. Poplett told Griffith to call him by
noon about the contract and the meeting adjourned.
Griffith told the picketers to keep picketing since nothing
had yet been signed and he did not know what the
Company was going to come up with. Griffith called
Poplett at noon on Saturday but got no answer at
Poplett's office. He then called Nickey Chevrolet and was
informed by the switchboard operator that Poplett was
not there and that no contract had been left for him.
Griffith called Union President Pucci who said he had
talked to Poplett who had said he could not get it done
and might have it Monday.
Poplett testified that he made no notes of the
negotiation meetings until the meeting on October 18, and
at that meeting agency shop was discussed . He said
Stephani opposed it since it was Stephani's position not to
'Contrary to the authority implicit in Stephani 's reply to Griffith that
Poplett was his attorney and spoke for him, both Stephani and Poplett
denied that Poplett could act for Respondent and agree to contract terms.
The occurrences thereafter appear to contradict Stephani and Poplett's
postmortem pronouncements.
1083
force a man to pay any part of his salary as dues to a
union even though he did not have to join it. Regarding
the meeting in Stephani's office, Poplett said he asked
whether the Union would entertain a membership of
maintenance clause for its union security. He stated that
at first Griffith was opposed to it but came around later.
Poplett testified he broached the proposal as follows:
I think the entire meeting was taken up with the
discussion of the union security clause and I proposed
to Mr. Griffith and to Mr. Pucci, I put the proposition
to them whether they would consider a maintenance
membership clause and they - would offer it with a
15-day escape and would they offer it to the company.
And I said - they responded initially they would not
We had a great discussion about the escape clause,
about the length of the escape clause. Finally I said,
"Would you consider a maintenance of membership?
Would you offer it to the company with a 10-day
escape clause?"
At that point Poplett said Stephani had to leave to meet
someone at the airport and the question was raised
whether he could stay and work the thing out. Stephani
said he was sorry he had to meet the airplane and when
Griffith asked him about the negotiations Stephani said
Poplett was his attorney and left. Poplett testified:
We continued to discuss whether the union would
offer the company a maintenance membership with a
10-day escape clause.
I remember that Mr. Griffith or Mr. Pucci talked
about a 7-day escape clause, and I stated that's not
long enough. Seven days can go by and practically
before everybody knows there is one, something to that
effect.
I was hoping to see if they would go 10 days.
Finally, and it was getting late at this point, they
said, "Well, let's caucus," or words to that effect, go
out on the line, I think is the word that was used, and
they went out.
And they came back in and said that, "Yes," they
would offer with a 10-day escape clause, and they asked
me how soon I could get a proposal written up.
Poplett stated he expressly said he was not making a
firm proposal to the Union . . at the very outset I
specifically said I am not offering this as a firm offer by
the company but only asking you if you would consider, if
the union would consider a maintenance of membership
with a 15-day escape clause."
Poplett testified he said he had to get approval of this
and the Union urged him to get it written up in any event.
He states that they spoke to Stephani's secretary asking if
she would stay and type up "the maintenance of
membership clause" and she refused saying she was going
home. He stated that it was agreed that he would get a
maintenance of membership clause prepared the next
morning. Poplett testified that, following some office
appointments, he called Stephani about mid-morning the
following day and discussed whether a maintenance of
membership clause with a 10-day escape clause would be
acceptable, and "he told me that he did not - that even a
maintenance of membership contract was subject to the
same objection: That once the escape clause was passed
the members - the employees were locked into the union
for the balance of the contract and he did not want the -
did not want to dictate to any employee whether or not -
that they had to belong to a union to retain their job, and
the clause was not accepted by the company." Poplett did
not prepare the clause and called Pucci in the afternoon
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and told him the Company would not accept the clause
and explained why to Pucci's question. Pucci asked if they
would have another meeting and he told Pucci it might
take a while for this idea to catch on but the Company
might change its position.
Griffith testified that the clause to his understanding
was an offer from the Company and, when the Union
agreed to it, that the parties had agreed in principle to all
the terms of the contract and all that remained was to
type it up and check the language. Indeed this impression
was shared by Company Vice President Ryan On the
next morning after the meeting Salesmen Sellers and
Sergott were picketing as Ryan came to work He stopped
and asked them "What the hell are you doing here? You
know the contract was signed last night?" Sellers said it
was not as far as he knew. Ryan said he was certain he
understood the contract would have been signed and went
in the building
This version of the event was undenied and I credit it.
Bearing on this meeting and Respondent's attempt to say
that no agreement was reached here is another portion of
Attorney Poplett's testimony He stated that with regard
to the maintenance of membership clause he was looking
for a mid-ground "The men had been out on strike for
some time. It was costing the company money, and the
men money, and I was frankly in a position as sort of
negotiator, to see what I could get the union to offer. I
had successfully gotten them off of the union shop, agency
shop, and then I was trying for maintenance of
membership it was the open shop contract." In essence
Poplett's testimony was that he sought in succeeding
sessions to get the Union to take less, leading them to
propose a maintenance of membership clause then
rejecting it in order to finally extract an open-shop clause.
He stated it was not a surprise to him when the Company
declined the maintenance of membership clause because
he did not know what to expect in that regard since he
had not discussed it or its acceptability with Stephani, and
the Company had never modified its open-shop position.
Stephani who was present in the hearing room during
Attorney Poplett's testimony, gave testimony which
contradicts that of Poplett and leads us in many
directions. He was asked whether he ever offered to sign a
contract with the Union, and though he had seen a
contract proposal prepared by Poplett ( infra) replied.
A I have never seen a contract that I could accept.
Q Never seen any contract that you would accept'?
A No.
Q. Have you ever proposed a contract to the union
that that was acceptable to you'?
A. No
Q. Have you ever told the union what contract would
be acceptable to your
A. Well, I believe that the ability of a sales person is
so variable in the individual and from individual to
individual that I don't think you can put on paper what
the qualifications might be.
Q So you don't think you can negotiate a contract
for sales employees, automobile sales employees?
A. I am certain it is very difficult, so many things
bear on the subject, I don't know how it can be done,
but I am willing to try since this is the law of the land
In regard to signing a contract with the Union Stephani
was asked.
Q Mr. Stephani, have you come close to signing a
contract with this union"
A Yes
Q. And when was this?
A. I would judge it was somewhere about midpoint
of the strike.
Q Was this at the meeting in your office?
A. On the 14th of November.
Q The meeting in your office?
A. I don't know if it was the date, the date of the
meeting I don't relate it to that.
Q. What do you relate it to?
A. About midpoint in the strike.
Q. Was the contract offered, an acceptable contract
to you?
A. Well, it wasn't reduced to documentation, but the
attitude of the negotiators seem to show a great
promise, that we would be able to get together at that
point.
Q What stopped that the parties from getting
together at that poirit'i
A Well, the realization that nothing but the union
shop would satisfy the union.
Q Is that your understanding of the union's
position?
A. Yes.
Q. That was your understanding of the union's
position in the middle of the strike"
A. Yes, that was understood
Q. Mr Stephani, do you know what an agency shop
is as opposed -
A. I am not sure I do, but I believe it involves the
matter of dues being paid by anyone whether they
consider themselves members or not
Q All right. How about the maintenance of
membership, do you know what that means)
A I think I do.
Q What is that`'
A I think it's a situation where a member must
within he must continue to be a member during the
life of the contract.
Q And you are opposed to that"
A. No.
Q. You're not opposed?
A. No.
Q. Would you accept a contract with that term in it'?
A. I could see no objection to it. I would have to
study it further, I suppose, but I see no objection at this
moment
Q You see no objection for a man to sign a card
authorizing the union to be a bargaining representative
during the term of the contract, to pay dues during the
term of the contract?
A No
These contradictory views and versions bear out the
statement supra that Poplett and Stephani either were not
communicating with one another or that either one or
both were untruthful in their testimony. This meeting and
its results will be analyzed further infra
While picketing, Salesman Sergott asked a truckdriver
to honor the picket line and not deliver a shipment of
antifreeze Company Vice President Ryan came up to the
truck and the driver used a two-way radio and asked his
dispatcher's advice. He was told to do what he wanted
and at Ryan's inquiry agreed to make the delivery A
short time later Ryan approached picketers Sergott and
Sellers and asked if they intended to come back to work
To Sellers affirmative reply, Ryan asked when and was
told when Griffith advised them the strike was over and
they could go back to work. Ryan asked Sergott if he
knew what he was doing out there and if he realized that
NICKEY CHEVROLET SALES, INC. 1085
he was going to have to talk with those people inside the
plant when he came back to work. Ryan started to walk
away, turned, shook his fist and said to Sellers "G-d-
you, I'll get you for this. One of these days, it will be
my turn. Don't you ever walk on the service area again."
After walking away again, he came back and pointed at
Sellers and said he realized that he had a right to picket,
but, as far as he was concerned, the letter (of October 9)
took care of him.
Ryan testified that he told Sellers and Sergott on one
occasion that they were interfering with a delivery and had
interfered with customers and reminded them they worked
for him. He testified he did not say anything about firing
them nor threaten any reprisals nor wave a finger or fist
at either Sellers or Sergott. Respondent urged that Ryan
was angry because Sellers and Sergott were interfering
with delivery but the testimony would indicate they were
engaged in normal picket line behavior which was
unsuccessful and should not have caused Ryan to lose his
temper. The outburst appears to be part of Respondent's
overall union animus and an attempt by Ryan to inhibit
normal behavior with a reminder that things could get
tough for them when they returned to work under him.
I conclude and find that Ryan's oral threats to Sellers
and Sergott were violative of Section 8(a)(I) as an attempt
by Respondent to inhibit employees' concerted union
activities.
On Monday, October 28, the salesmen sought to end
the strike and return to work. After twice being asked to
return later in the morning, they, with Griffith as their
spokesman, were admitted into Respondent's conference
room. Vice President Ryan asked why they were there and
was told by Griffith that the strike was called off and they
were returning to work. Ryan, using a check sheet,
determined who was present. A short time later Stephani
entered the office, asked why they were there, and
received Griffith's reply that the strike was called off and
they were reporting for duty.
Stephani said he wanted to consult his attorney about
this but he was not available. He said they would contact
them and pointing towards Griffith began a sweeping
motion toward the door saying they had worn out their
welcome and would please leave by the side door. As the
side door was being unlocked Stephani asked if any of the
salesmen wished to speak privately with him or speak
from themselves regarding this matter Sellers spoke up
and said that Griffith spoke as the head of the Union for
them Sergott affirmed this and the men left They
returned to work on the following 2 days.
The General Counsel alleged that the remarks by
Stephani amounted to an illegal solicitation to bargain
individually in an attempt to undermine the Union and
further amounted to a threat of economic reprisals.
Respondent's prior unfair labor practices in this precise
area plus the responses of Sellers and Sergott make clear
that Stephani was not making idle conversation but was
seeking to drive a wedge between the salesmen and their
bargaining representative by encouraging private
conversations or at least dissension.
I conclude and find that Respondent by this conduct of
President Stephani was soliciting individual bargaining in
an attempt to undermine the Union in violation of Section
8(a)(1) of the Act. However I find no threats of reprisal in
this dialogue and accordingly dismiss that allegation of
the complaint.
The first meeting after the strike took place in Poplett's
office during the first week of November. The parties
discussed the strike with the Union accusing Poplett of
welching on a contract. Poplett maintained he had
negotiated subject to Stephani's approval and that
Stephani did not approve. The Union denied this stating
Poplett's proposal had been concrete and they were sure
they could demonstrate that. Poplett said he did not have
to give the Union a written proposal Griffith asked how
they could know what they had agreed to without a
written proposal. Poplett asked if they wanted to bargain
on open shop because he did not see the need of giving a
written proposal if they did not want to do so. The Union
claimed it had an open mind and was willing to bargain
on an open shop Poplett again said there was no use in
giving the Union a written proposal if they would not
bargain on an open shop. He said that he would give them
a proposal and if they did not accept the open shop he
would declare that they had reached an impasse. That
concluded that meeting.
The next meeting was scheduled for Poplett's office
around mid-November. After waiting a short while for
Poplett, the union negotiating team went upstairs with
him to his office. Poplett handed Griffith and the others a
typewritten document in a blue binder saying it was the
Company's contract proposal and they could look it over
but Stephani had not yet seen it. Poplett went downstairs
to get coffee and a sandwich and came back shortly. In
the meantime the union negotiating team looked over the
document. According to Griffith the hours of work clause
was not worded as it had been agreed and he called
Poplett's attention to the difficulty, saying he had not had
time to carefully look over and check the other sections.
Poplett asked for the documents saying he had to give
them to Stephani. After waiting some time for Stephani
to appear and with one of the negotiating members due at
work shortly, the union negotiating team left. Poplett said
he would have Stephani look the document over and give
it to Sergott at work for transmission to the Union so the
Union's executive board could consider it Sergott never
received it. According to the union committee they
emphasized to Poplett the necessity for moving speedily
since the Union's executive board was due to meet the
following week
Poplett testified that when Stephani came to his office
later that afternoon he gave the document to Stephani but
that it was never given to the Union, since he and
Stephani discussed it and agreed to continue the policy of
not giving a written contract to the Union until agreement
was had on all terms of the contract.
When Poplett was questioned about this company
proposal (G. C. Exh. 15) Poplett said it contained the
agreements worked out by the parties except for union
security and contained an open-shop clause. Poplett was
asked what was in the agreement Stephani had not
approved and whether the document essentially contained
the Company's position. Poplett evaded the question
saying that Stephani had not seen it. He did say there was
not anything in it he felt Stephani might find
objectionable. Poplett was asked why they did not sign the
agreed-on points leaving the union-security question open.
He replied that he and Stephani had decided that, in order
to move the bargaining negotiations along, they would
reduce the contract to writing only after they had
agreement on all issues.
A brief comparison of the Union's proposal and the
agreements Poplett and Griffith state were reached with
the Company's proposal (G. C. Exh. 15) establishes some
discrepancies in that latter document in the areas of the
union checkoff clause and the hours of work clause. There
would appear to be some question about the seniority
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
article . These could either be draftsmanship problems or
possibly could indicate a retreat from the terms.
Stephani contradicted Poplett ' s testimony , testifying
that , when he reached Poplett ' s office , the union
representative had left and his discussion with Poplett
centered on why the union representatives left. Stephani
did not recall any conversation regarding the document
prepared by Poplett but stated he took a copy with him
and reviewed it in detail within the next 2 days. He
testified that he did not recall telling Poplett he had any
objections to the document nor that it should not be given
to the Union, as the Company's contract proposal. He did
not recall that Poplett told him the Union wanted him to
look over the document and pass it on to Sergott . He said
he understood at that time that the document was
unacceptable to the Union because of the open-shop
clause.
The fact remains that, despite the Union's request for
the document for review by its executive board and
Stephani 's professed nonobjection to giving the document
to the Union, the Union never received it. Here again it is
apparent that either Poplett and Stephani were not
communicating with one another or that either or both
were not truthful in their testimony. Further the original
reason advanced for not giving a proposal to the Union,
that it would take too much time and energy to prepare it
and that Respondent would prepare it only if there were
substantial agreement on all issues , no longer held true in
that situation , since here the document had been prepared,
Respondent had copies of it, and there appears to be no
reason why the Union should not have received at least
one copy of it. Poplett's professed reason that Respondent
wanted to "stick to our agreed - upon policy of getting the
agreement on all terms of the agreement before tendering
it in writing" is the antithesis of bargaining in good faith
to secure an agreement in this set of circumstances, since
here the union negotiators wanted to submit Respondent's
proposal to its executive board for their decision on it
after the Union had just lost a strike. The agreed-upon
policy referred back to the reasons for not preparing a
document which were no longer valid since the document
had been prepared. The only evident reasons for not
giving the Union the document are (I) that Respondent
was afraid the Union might accept it; or (2) that
Respondent wanted complete capitulation of the Union
with the Union agreeing to anything Respondent wished
and then accepting anything Respondent drafted. This is
much more than hard bargaining . In the circumstances
here , it is clear that this conduct amounted to bargaining
in bad faith.
On November 30 Respondent was notified by the
Union that Sellers had been appointed the union shop
steward.
The next negotiation session was held December 2 at
Poplett's office. The Union asked why they did not get a
copy of the Company's contract proposal and Pucci
accused the Company of stalling. Poplett said it was no
use giving the Union a proposal because they would not
bargain on an open shop and the Company was not going
to give a union shop. Again the parties advanced the same
arguments regarding their positions favoring union and
open shops and the Union again accused the Company of
stalling and of reneging on the maintenance of
membership clause proposed in the meeting in Stephani's
office. Stephani said he could get along without a union
and did not need one after 39 years . Poplett asked if the
Union would take the open shop saying he had no answer
as to what the executive board decided and Griffith
replied he would let him know when he saw the
Company's proposal in writing. The testimony is clear
that at the prior meeting both parties understood that the
written agreement was to be submitted to the Union's
executive board. On December 19, the Union wrote
Attorney Poplett asking for a bargaining session during
the week of December 30 to consummate the agreement
and requested the Company to present at such meeting a
copy of the proposal the Union was to have received from
Respondent at the last bargaining session . On December
26, an associate of Attorney Poplett wrote that Poplett
was ill and would not be able to receive calls until
Monday, December 30, suggesting that the Union call or
write Poplett on that day to arrange a bargaining session.
The next meeting held January 14, 1969, was devoted
mainly to the increase of Respondent's delivery and
handling charges , herein called D and H , initiated in
November and contained in the new price list issued to the
salesmen by the Company on December 1. This increase
averaged about $20 per car more than the D and H
charges contained in the price list issued to the salesmen
by Respondent for the 1969 models in September.
The Company' s salesmen 's compensation plan which
became effective June 1, 1968 (G. C. Exh. 3), and to
which the parties agreed during the bargaining , in addition
to setting salaries has commission rates for sales of new
and used cars and trucks. For new vehicles the
commission is based on a percentage (20 percent for new
cars) of the sales price of the vehicle over the Company's
invoice cost plus its D and H charge. The price list shows
two columns of figures, one the "window" or "sticker"
price and the other the invoice plus company D and H
figure. The area between these two figures is the area in
which the salesman and the customer dicker to establish
the highest price the salesman believes the customer is
willing to pay. Therefore when the D and H charge was
increased the effect was that the salesman started with a
higher base cost and a narrower field in which to dicker
with the customer, and a sale at a particular figure after
the increase meant $4 less commission than the same sales
figure prior to the increase.
Salesman Nathan Sellers testified that the commissions
on sales for October and November, which are paid on
the 15th of the following month, were based on the higher
D and H charges which were not issued to the salesmen
until December 1. Sellers testified he protested the
decrease in his commission around November 16 or 17
after he received his commission check for his October
sales. Respondent did not advise the Union that it was
revising its D and H charges.
It is the General Counsel's and the Union's position
that this revision was a unilateral change in the salesmen's
pay and, as such, violated Section 8(a)(5) and (1) of the
Act, since it was effected without notice and bargaining on
the subject and had the necessary intent and effect of
undermining the Union's status as the
collective -bargaining agent for the salesmen.
Respondent admitted it did not notify the Union or
bargain with it on this change, with Stephani explaining,
"We had no contract. Since I didn't have a contract there
wasn 't a relationship with them." Stephani from this
statement and despite the Union's telegram in July (G. C.
Exh. 8) determined that he had no obligation to consult
with the Union until a contract was reached. Respondent
claims that this act was not an unfair labor practice since
the purpose in changing the D and H charges had nothing
to do with the bargaining negotiations and the amounts
involved in the change should be considered de minimus.
NICKEY CHEVROLET SALES, INC. 1087
since it said the amounts might mean a difference of $100
a year or so to a salesman who was making a lot of
money. Further , Respondent stated the salesman could
make the same amount of commission he made before by
getting the customer to agree to a higher sales figure.
First of all whether this unilateral change in pay, as I
find this decrease in commissions to be, is an unfair labor
practice does not depend on what Respondent states the
intent of the change to be, but as a unilateral act it had
foreseeable consequences and carries its own intent which
is violative of the Act. Stephani's flat admission
demonstrates that Respondent's action violated Section
8(a)(5). Respondent's compensation plan (G. C. Exh. 3)
bases bonuses on sales of 100 to 150 units, another bonus
rate for the next 50 units, and a further rate for units
above 200. The monthly salary is bottomed on less than
15 units delivered per month and ranges up to a rate of 40
units per month delivered. Testimony was received that
the average competent salesman would sell about 180
vehicles per year. By any or all of these figures it is clear
that at a rate of $4 per car the decrease in commissions
would at the least range between $400 and $1000 per year
per salesman, figures that hardly could be called de
minimus . Respondent 's other contention that the salesman
need only get the customer to agree to a higher sales price
to make the same commission neglects the undenied
testimony that the D and H charge change was made
before the salesmen were told about it so that they could
not have tried to move the figures up to make up for the
reduced compensation. Further automobile purchasers do
shop for prices and it is conceivable and probable that
customers could be turned away by the higher figure the
salesman would try to secure to give him the same
commission he had made before the change. Not only that
but, on each sale made , the salesman would receive less
than what he would have received as commission prior to
the change . Stephani testified that the salesman estimates
the customer and tries to get the highest price he thinks
the customer is willing to pay. Therefore in each instance
since the salesman presumably would sell in this same
manner , the increase in the D and H charge would have
the necessary effect of reducing the commission he would
have received under the old rate. Respondent claims that
the increase was justified because its preparation costs per
car were escalating , but such a reason does not meet or
excuse Respondent ' s unilateral action which I find
violated Section 8(a)(5) and (I) of the Act. (See Peter
Satori Co., Ltd., 175 NLRB No. 6.)
The Union at the January 14, 1969, meeting asked that
the sales be refigured on the former basis and the
salesmen compensated for the decreased commission they
received. Respondent maintained it had a right to raise
the D and H because its expenses were increasing . Griffith
said that the change was at the expense of the men and
was costing them money and vigorously opposed the
change reminding Respondent it had not negotiated with
the Union nor even notified it of the change. Griffith
testified that at one point Respondent proposed restoring
the former D and H charges if the Union would agree to
the open shop. Again there was a question by Respondent
whether the Union would bargain on the open shop and
the Union ' s reply that it would bargain on anything but
wanted a concrete proposal it could take to its members.
The Union raised a question of a health and welfare
program but dropped it.
The next meeting was held February 12, 1969, in
Poplett's office. The increased D and H charges and open
shop were again discussed with Respondent proposing the
Union take the open shop in return for Respondent
restoring the old D and H figure. Poplett testified that the
proposition was in reverse, that the Union had proposed
the Company take the union shop in exchange for the
Union dropping its claim on the D and H charges and
Respondent refused this proposal. I am inclined to doubt
Poplett's version but resolution of this conflicting
testimony is not necessary to our inquiry.
Another meeting took place near the end of February
with union open shop and D and H charges again being
discussed with no progress. The parties later set a date of
March 18, 1969, for another meeting but the date was
canceled by Respondent.
C. Analysis and Conclusions
I have determined that the change in the D and H
charges violated Section 8(a)(5) of the Act and, together
with the threats of Ryan and the solicitation by Stephani
for individual bargaining, violated Section 8(a)(1) of the
Act. I also indicated that Respondent's withholding of its
written contract proposal in November, following the
strike, after Poplett and the Union had made
arrangements for a copy to be given to the Union so its
executive board could pass upon the proposal, appeared to
be bad -faith bargaining . In assessing Respondent's
conduct as a whole, I am convinced that Respondent
bargained in bad faith and in an effort to avoid reaching a
contract with the Union_
From the testimony of the parties it is clear that, by the
third meeting (September 17), the parties had agreed
basically on all the terms of the contract except union
security. It is also clear that through that meeting the
Union had requested and the Company had agreed to
furnish the Union with a written copy of its proposal and
the agreements reached to that time. Approximately 2
weeks after the third meeting, Respondent's attorney
wrote the Union refusing, for the first time, to furnish the
Company's written proposal until there was agreement on
all terms.
In assessing the course of the bargaining negotiations
we start with the fact that the Company did not want and
sought to exclude the Union from its business. This fact is
clear from Respondent's antiunion propaganda put out
prior to the union election; from Stephani's statement
near the conclusion of negotiations that after 39 years he
did not need a union telling him how to run his business;
from Vice President Ryan's threat to the union picketers
that he would get them when they came back after the
strike; and from the conduct engaged in by Respondent at
the first meeting when they questioned the reputations,
salaries, and bona fides of the Union's representatives.
Respondent's animus toward unions is further illustrated
by its previous history of unfair labor practices.
In this context, there are other admitted violations of
the Act. Respondent's change of the D and H charges
without notice to the Union , or even to the salesmen
themselves before effecting the change, reduced the
salesmen 's commissions and had the necessary effect of
undermining the salesmen's confidence in the Union to
protect them from such unilateral action and effect
redress. As found above this act violated Section 8(a)(5)
and (1) of the Act.
Respondent did not agree to meet for bargaining until
some 3 months after the Union had been certified and 2
1/2 months after the Union's first request for a
bargaining meeting. Respondent 's reasons for the delays
do not appear valid from the oral testimony or from the
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exhibits. It was not until the Union filed a charge alleging
that Respondent was refusing to meet that Respondent
finally set a date for a first meeting. Again when the
employees went on strike on October 5, the Company by
its October 9 letters to its salesmen clearly indicated they
would be discharged on October 12, if they did not report
back to work by that date Again it was after the Union
filed a charge alleging that Respondent violated Section
8(a)(3) by this threat that Respondent retreated from its
position and sent a so-called explanatory letter to the
employees saying that they were not discharged but as
economic strikers might be replaced., Respondent's initial
reluctance to reinstate the salesmen on October 28 may
have been blunted by the Union's charge filed that date
and the subsequent reinstatement of the men on the
following 2 days. Delays by Respondent are indicative of
an attempt to stall bargaining and to undermine the
Union's majority status.
After the Union capitulated on a number of its
demands, and the parties by the September 17 meeting
had come reasonably close to a contract, the Company
started its new tactic of refusing to submit a written
proposal or draft of the contract with language changes
Respondent insisted it must have. Respondent was not
explicit as to the language changes it said it needed but
merely said as to a number of clauses it would need
changes in the contract language proposed by the Union
At the September 17 meeting a few of these changes were
given orally to the Union. Thus the Union was left after
the third meeting with its own contract proposal and with
its notes of what it heard Respondent say it agreed to and
some items Respondent said it changed in the Union's
proposed contract. Such tactics by Respondent could not
be said to aid the parties in getting together.
When the Union struck, economic pressure was brought
to bear on both parties At the October meeting in
Stephani's office it is clear to me that the parties agreed
to the terms of a contract. I credit Griffith that what was
to be prepared was the entire agreement and not just one
clause as Poplett testified The preparation of only one
clause would have been contrary to Respondent's previous
method of operation and Ryan's remark the following day
carries the evident understanding that a contract was
agreed on and was to be drawn up. Certainly the drafting
of a maintenance of membership clause with a 10-day
escape period was of no great consequence since the basic
terms of such a clause could be copied from other
documents available to both the Union and Respondent
(as per Griffith's testimony). The main item at the
conclusion of that meeting was the drafting of the entire
agreement so that the parties could consult on the
language of the agreement they had reached. It was in
terms of the entire agreement being prepared that Griffith
and Poplett talked to Stephani's secretary and it was
about an agreement, not a clause, that inquiry was
thereafter made by telephone and at the subsequent
meetings. Respondent's post hoc announcement that
Attorney Poplett did not have the authority to negotiate
and conclude the terms of an agreement had not been
conveyed to the Union prior to the hearing in this matter
'The complaint alleges that the strike was caused or prolonged by
Respondent ' s unfair labor practices Respondent reinstated the strikers
within 2 days of the termination of the strike and there is no allegation
that those employees were not accorded all their rights Therefore there
seems to be no reason germane to any of the issues before me for a
determination that this was an unfair labor practice strike From the
testimony , I would so find it if there was a reason for such a
determination
and is an attempted negation of the clear import of
Stephani ' s statement when he left his office during that
meeting.
Poplett 's explanation that he was merely maneuvering
the Union into making a concession which Respondent
would then reject in order to drive the Union to deeper
concessions is at odds with what occurred at that meeting.
The Union had previously proposed an agency shop as a
concession . At this meeting , with Stephani present,
Poplett raised the question of a maintenance of
membership clause. The raising of the question by
Respondent would seem to be a concession by Respondent
to a limited form of union security . The Union after
initial reluctance began to bargain on the clause as to
extent of the escape period . There was no argument
or discussion on the clause itself with the parties
clearly understanding the meaning and terms of a
maintenance of membership clause. Therefore it was the
contract which was to be drafted the following morning by
Poplett and typed by Stephani's secretary . Moreover it is
clear from Stephani 's testimony that he had no objection
to such a clause in the contract despite Poplett's contrary
testimony . Therefore a contract containing such a clause
and embodying the other agreements reached by the
parties, would have been acceptable to Respondent as it
was indeed acceptable to the Union , and should have been
tendered by Respondent to the Union . Since the contract
was not prepared because according to Poplett the clause
was not acceptable to Stephani , the necessary conclusion
is that either Poplett or Stephani , or both of them,
realizing that an agreement had been reached , began to
avoid it by relying on this stratagem.
I conclude and find that at the meeting in Stephani's
office the parties had come to a meeting of minds on the
terms of a collective - bargaining agreement and that
Respondent reneged on this agreement in violation of
Section 8 (a)(5) and ( 1) of the Act. As I have noted above
Respondent's refusal to give its later drafted contract
proposal to the Union was another attempt to delay any
agreement with the parties and is a further indicia of
bad-faith bargaining It is clear that the Union then as
previously had sought a written proposal to show to its
executive board.
Basically, Stephani confirmed that Respondent
bargained in bad faith by testifying he had never seen an
agreement that he could agree to, despite the fact that he
had seen the document drafted by Poplett, which
according to Poplett contained Respondent ' s version of all
the agreed terms of the contract plus the open-shop clause
Respondent states it wanted. Stephani was apparently not
able to accept even his own contract proposal which
contained Respondent ' s version of the agreements reached
to that time
D Summary
In summary I find that Respondent negotiated with the
Union in bad faith with no intention of entering into any
final or binding collective-bargaining agreement and in
fact negotiated with the purpose of not entering into a
collective-bargaining agreement. I further find that
Respondent unilaterally reduced the salesmen's
commissions for their October 1968 sales and thereafter
by raising the D and H charges and will order hereunder
that the salesmen be made whole for the amounts they
lost by this change. Further, I have found that
Respondent by its then Vice President Frank Ryan
threatened its employees with discharge and other
NICKEY CHEVROLET SALES, INC. 1089
reprisals because they engaged in a strike and concerted
activities.
In regard to the complaint allegation that Respondent
refused to vest its agent or negotiator with authority, it
appears that Respondent sought to make such a showing
in this hearing. However, I find that Respondent
apparently cloaked its agent with authority during the
meeting in Stephani's office and that at that time its agent
Poplett had the authority to enter into a
collective-bargaining agreement.
I have further found that Respondent on the date of the
meeting in Stephani's office failed and refused to enter
into the contract to which it agreed on that date, and
failed and refused to reduce to writing and to sign such
written agreement. In the section of this Decision entitled
"The Remedy" I will set forth a specific remedy for this
and the other unfair labor practices herein found.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above in
section II, and therein found to constitute unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
occurring in connection with Respondent's business
operations set forth above in section 1, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of' commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows-
Respondent, since on or about July 2, 1968, has at all
times refused and still refuses to bargain with the Union
in good faith as the representative of its employees in the
appropriate unit described above. I have found that
Respondent and the Charging Party at the October
meeting in Stephani's office agreed in substance to the
terms of a contract between them, having at that meeting
resolved the remaining question of union security by
agreeing to a maintenance of membership clause with a
10-day escape period. I have also found that Respondent
about that time changed the amount of compensation the
salesmen received by increasing its D and H charges,
thereby diminishing the amount of the salesmen's
commissions from sales of new vehicles, and that such
unilateral action by Respondent violated Section 8(a)(5)
and (1) of the Act.
To remedy these violations I recommend that
Respondent prepare and tender to the Union a written
contract embodying the terms of the agreement reached at
the October meeting in Stephani's office and, if the Union
is willing to accept such contract, Respondent is to sign
such agreement. In such event the terms of that contract
shall be in force and effect retroactive to the date of such
meeting and extend for I year from the date such contract
is actually signed by the parties. If the Union determines
that the terms of said agreement should no longer be
applicable due to changes in various circumstances such as
economic conditions, etc., then Respondent is to enter into
genuine good-faith negotiations with the Union looking
toward a new contractual agreement and in the event that
such an understanding is reached between the parties they
are to embody such understanding in a signed agreement.
The Union's certification in such event shall be extended
for l year from the date such new bargaining negotiations
begin Respondent shall make whole all of its salesmen
unit employees, including those who have since left
Respondent, for the amounts they lost due to
Respondent's change of their compensation as discussed
above.' The amount of commissions due the salesmen are
to be recomputed from the Company's records in the
quarterly manner established by the Board in F W
Woolworth Company, 90 NLRB 289, and interest at the
rate of 6 percent per annum is to be computed on these
amounts in the manner set forth in Isis Plumbing &
Heating Co . 138 NLRB 716. I further recommend that
Respondent make available to the Board, upon request, its
sales records and other records in order to facilitate
checking the amounts due each of the salesmen.
I have also found that Respondent threatened its
employees with discharge and other reprisals for having
engaged in concerted activity including the strike, and
offered to bargain individually with the salesmen in an
attempt to undermine their Union.
Having found that Respondent discriminated against its
employees because they exercised their rights under the
Act, and that Respondent rejected the principle of
collective bargaining and acted to avoid concluding a
bargaining agreement and by such action had invaded its
employees rights, as set forth above in section II, I am of
the opinion that Respondent may commit further unfair
labor practices since its actions detailed herein show its
proclivity for so doing. Since it is part of the purpose of
the Act to prevent the commission of unfair labor
practices, I recommend that Respondent be placed under
a broad enjoinder to cease and desist from in this or in
any other manner infringing upon the rights guaranteed its
employees by the Act.
On the basis of the foregoing findings and the entire
record, I make the following-
CONCLUSIONS OF LAW
1. Nickey Chevrolet Sales, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All automobile and truck salesmen employed at the
Employer's Chicago, Illinois location, excluding office and
plant clericals, automobile mechanics, semi-skilled help,
parts department employees, guards and supervisors as
defined in the Act and all other employees, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since June 5, 1968, the Union has been
and is now the exclusive representative of the employees in
said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. Respondent, by refusing to bargain in good faith
with the Union on and after July 2, 1968, as the exclusive
representative of the employees in the appropriate unit,
and by the course of its conduct and various acts during
and in the bargaining negotiations, has engaged in and is
engaging in unfair labor practices affecting commerce
'It is recognized that at this time of ever increasing costs Respondent
may feel some compulsion to increase its D and H charges in the future if
it desires to do so Respondent should enter into good - faith negotiations
with the Union in seeking accord on such changes.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the Act.
6 . By its unilateral change of its delivery and handling
(D and H) charges in October or November 1968, as set
forth in its rate change sheet of December 1, 1968,
Respondent refused to bargain in good faith with the
Union as the exclusive representative of its employees in
the appropriate unit and engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of
the Act.
7. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by:
(a) Threatening its employees with discharge and other
economic reprisals because they engaged in a strike and
other concerted activity.
(b) Soliciting its employees to bargain individually with
Respondent in an attempt to undermine the Union.
RECOMMENDED ORDER
(c) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all sales
records, payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of commissions
due the salesmen under the terms set forth in the section
of this Decision entitled "The Remedy."
(d) Post at its Chicago, Illinois, location copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be 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 by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
Those parts of the complaint not found violative of the
Act herein shall be dismissed.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case
considered as a whole, it is recommended that Nickey
Chevrolet Sales, Inc., Chicago, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, hours of employment, and other
terms and conditions of employment with American
Federation of Professional Salesmen.
(b) Refusing to reduce to writing and sign at the option
of the Union the agreement reached between the parties at
the meeting held in Respondent President Stephani's
office in October 1968 with such agreement to run for at
least I year from the date of such signing.
(c) Paying commissions based on the price cost list
which included the Respondent delivery and handling (D
and H) charges issued by Respondent in September 1968
(d) Threatening to discharge or taking other reprisals
against employees who participated in the strike and other
protected concerted activities
(e) Soliciting unit employees to bargain individually
with Respondent in an attempt to undermine the Union.
2 Take the following affirmative actions which are
necessary to effectuate the policies of the Act.
(a) Upon request reduce to writing and sign the
agreement reached by the parties in Respondent President
Stephani's office in October 1968 with the term of such
agreement to run for at least I year from the date of such
signing , or, if because of changes in economic or other
circumstances the Union desires to negotiate a new
agreement, Respondent will upon request bargain
collectively in good faith with the above-named Union as
the exclusive representative of all employees in the
aforesaid appropriate unit and embody in a signed
agreement any understanding reached and in such event
the certification period of the Union shall extend l year
from the initiation of such good-faith bargaining.
(b) Make the salesmen whole for the loss of
commissions they suffered by reason of Respondent's
discriminatory unilateral raising of its delivery and
handling (D and H) charges in the document it issued on
December 1, 1968, in accord with the recommendations
set forth in the section of this Decision entitled "The
Remedy "
'In the event that 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 In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 13, in writing , within 10 days from the date of this Order, what
steps 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
Relations Act, as amended, we hereby notify our
employees that:
Following a trial in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered evidence, it has been found
that we violated the Act We have been ordered to post
this Notice and to abide by what we say in this Notice.
WE WILL bargain collectively in good faith and, upon
request, reduce to writing and sign the agreement
reached between the Union and the Company in
Company President Stephani's office in October 1968,
with the terms of such contract to extend for at least 1
year from the date of such signing, or, if because of
changed economic or other circumstances the Union
desires to reach a new agreement , WE WILL upon
request bargain collectively in good faith with American
Federation of Professional Salesmen as the exclusive
representative of all employees in the bargaining unit
described below in respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and, if an understanding is reached, sign a
contract containing such understanding. The bargaining
unit is:
All automobile and truck salesmen employed at the
Employer's Chicago, Illinois location, excluding office
and plant clericals, automobile mechanics,
NICKEY CHEVROLET SALES, INC.
semi-skilled help, parts department employees, guards
and supervisors as defined in the Act and all other
employees.
WE WILL make all the salesmen in said unit whole
for any loss of commissions they suffered when we
changed our delivery and handling charges as set forth
in the cost and price list issued on December 1, 1968.
WE WILL NOT threaten to discharge or take other
reprisals against employees who participate in a strike
or other protected concerted activities.
WE WILL NOT solicit employees in the unit to bargain
individually with the Company in an attempt to
undermine the Union.
1091
All our employees are free to become or remain union
members.
MICKEY CHEVROLET
SALES, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
312-353-7570