Winston-Salem Journal

National Labor Relations Board - Administrative Judge Opinions

Aug 26, 2002

26-CA-020495 (N.L.R.B. Aug. 26, 2002)

JD(ATL)—64—02
Kalamazoo, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
5
LOCAL NO. 6-0682, PAPER, ALLIED-INDUSTRIAL
CHEMICAL AND ENEGRY WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC
10
and CASE GR-7–CB–13325
CHECKER MOTORS CORPORATION
A. Bradley Howell, Esq.,15
for the General Counsel.
Kevin M. McCarthy, Esq. and
Jedd E. Mendelson, Esq.,
for the Company.
Stanley Eisenstein, Esq.,20
for the Union.
DECISION
Statement of the Case25
WILLIAM N. CATES, Administrative Law Judge: I heard this case in Kalamazoo,
Michigan, on October 3, 20021. The case originates from a charge, filed by Checker Motors
Corporation (Company) on May 31, against Local No. 6-0682, Paper, Allied-Industrial Chemical
and Energy Workers International Union, AFL-CIO-CLC (Union). The prosecution of this case was 30
formalized on July 25, when the Regional Director for Region 7 of the National Labor Relations
Board (Board), acting in the name of the Board’s General Counsel, issued a Complaint and Notice
of Hearing (complaint) against the Union.
The complaint alleges the Union violated Section 8(b)(3) of the National Labor Relations 35
Act, as amended, (Act) when between about May 29, and June 13, the Union, by its agent
International Representative David Ferson (Union International Representative Ferson), failed and
refused to bargain with regard to collective-bargaining agreement proposals submitted by the
Company during negotiations, unless such proposals coincided with proposals submitted by the
Union. It is also alleged that since on or about June 13, the Union has refused to engage in any 40
further negotiations toward a collective-bargaining agreement. Finally, it is alleged that by its
overall conduct the Union has failed and refused to bargain in good faith with the Company.

1 All dates hereinafter are 2002, unless otherwise indicated.
JD(ATL)—64—02
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The Union admits the Board’s jurisdiction is properly invoked,2 that it is a labor organization
within the meaning of Section 2(5) of the Act and that Union International Representative Ferson is
it’s agent within the meaning of Section 2(13) of the Act.
The Union denies bargaining in bad faith in violation of the Act. Rather, the Union asserts, 5
it, at the Company’s request, agreed to listen to Company contract proposals months before their
most recent collective-bargaining agreement was to expire, to see if a new early agreement could
be arrived at. The Union contends its willingness to listen to the Company’s proposals did not
constitute a waiver of its statutory, as well as contractual, right to notice if the Company wanted to
terminate the collective-bargaining agreement. The Union notes Article VIII of the parties’ 10
collective-bargaining agreement, as well as Section 8(d) of the Act, sets forth certain notice
requirements the parties must follow. The Union asserts that after early efforts by the parties to
arrive at a new collective-bargaining agreement was unsuccessful it provided the Company with a
“Notice to Amend” the parties’ collective-bargaining agreement. The Union asserts that pursuant to
Article VIII of the parties’ collective-bargaining agreement and their “Notice to Amend,” the 15
collective-bargaining agreement rolled over or extended its effectiveness for another year. The
Union asserts that when it refused to bargain over Company proposals which were not
incorporated in its “Notice to Amend” it was not obligated to do so. The Union correctly asserts the
Company never at any time filed a notice to amend or notice to terminate the collective-bargaining
agreement. 20
I have studied the whole record, the party’s briefs, and the authorities they rely on. Based
on more detailed findings and analysis below, I shall conclude and find the Union violated the Act
substantially as alleged in the complaint.
25
The Facts
The Company for many years produced vehicles widely known as Checker Taxi Cabs. In
more recent years, and at present, it manufactures automotive stampings and assembles such as
fenders, doors, hoods, and other metal automotive parts. The Company’s principle customer is the 30
General Motors Corporation. The parties have had a long term bargaining relationship. From
about 1943,3 and at all times material herein, the Union has been recognized by the Company as
the exclusive collective bargaining representative of the following employees of the Company,
herein called the Unit:
35
All production and maintenance employees employed by the Company at its
Kalamazoo facility; but excluding all watchmen, timekeepers, clerical employees,

2 It is admitted the Company is a corporation with an office and place of business located in Kalamazoo,
Michigan, where it is engaged in the manufacture and non-retail sale of automotive parts. During the
calendar year ending December 31, 2001, a representative period, the Company in conducting its business
operations sold and shipped from its Kalamazoo, Michigan, facility goods valued in excess of $50,000
directly to points outside the State of Michigan. The parties admit, the evidence establishes and I find the
Company is an employer engaged in commerce within the meaning of Section 2(2)(6) and (7) of the Act.
3 Although the complaint alleges “since about 1952” Chairman of the Union’s Bargaining Committee James
Savage (Union Bargaining Chairman Savage), testified, without contradiction, regarding terms in the parties’
1943 collective-bargaining agreement.
JD(ATL)—64—02
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draftsmen, Formen, Assistant Formen, office employees, all experimental
employees in Department 54 and all guards and supervisors as defined in the Act.
It is admitted the unit is appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.5
Since about 1943, the Company’s recognition of the Union has been embodied in
successive collective-bargaining agreements, the most recent of which was by its terms effective
from June 14, 1999 to June 13, 2002. I find, based upon Section 9(a) of the Act, the Union has
been, since 1943, and continues to be, the exclusive collective bargaining representative of the 10
Unit.
Well prior to the expiration date of the parties’ most recent collective-bargaining
agreement, Company Chief Operating Officer Larry Temple, approached Union Bargaining
Chairman James Savage about a need for early negotiations. Temple told Savage the Company 15
was under some pressure from a major customer for price reductions and that “health care cost
were going out of site.” Savage told Temple, at their early December meeting, that Temple would
have to present his request to the entire union bargaining committee because he, Savage, could
not make such a decision on his own.
20
On December 20, 2001, Company Chief Operating Officer Temple called a meeting of the
entire Union bargaining committee. Temple told the Union’s committee the Company wanted to
have early negotiations and added the Company had a short list of concerns to negotiate. Temple
explained that the Company’s concerns centered around escalating health costs, productivity
improvement in order to be more competitive and absenteeism. Temple explained the Company 25
wanted early negotiations to try and work out an agreement before June because it wanted to
avoid the need for “banking parts.”4
The Union agreed to early meetings or negotiations5 but stated they would need to poll
their membership to see what the membership’s concerns were. The Union Committee stated at 30
the December 20, 2001, meeting they were very concerned about money for the employees’
pension fund and job security. The Union and Company agreed to a number of dates for early
negotiations. Company Vice President of Human Resources Marcia Koestner in a January 30
memorandum distributed to certain Company officials and the Union Bargaining Committee set
forth agreed upon dates for negotiations which were February 18, 25, March 1, 6, 7, 8, 12, 13 and 35
14 to be held at an area hotel.

4 Temple explained “banking parts” meant the costly building of an inventory of parts by extended overtime to
meet customer demand in the event of a work stoppage by the Union at the collective-bargaining agreement
expiration in June.
5 Union Counsel at trial objected to the term negotiations in describing the meetings. The Union contends they
agreed to meetings which were more in the nature of discussions. I am using the term negotiations simply to
described the parties’ meetings.
JD(ATL)—64—02
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The Union requested and the Company granted the employees time at 1:30 p.m. on
February 14, for a general membership meeting which was held at an area fairgrounds. The
general membership met to talk about contract concerns and proposals.6
The parties met for their first negotiating session on February 18. The Company was 5
represented by Company Chief Operating Officer Temple, Vice President of Human Resources
Koestner, Company officials Walburn and Markin as well as local counsel Kevin McCarthy.
Attorney McCarthy acted as chief spokesperson for the Company. The Union was represented by
its spokesman, International Representative Ferson, along with Union Bargaining Committee
Chairman Savage and employees Dennany, Norwood and Miller7. The Company explained its 10
purpose in asking for early negotiations namely that its chief customer, General Motors
Corporation, was asking that the Company decrease its prices for the coming year by 4.5 percent.
The Company explained such a decrease or reduction would amount to approximately 1.7 million
dollars in give backs to General Motors Corporation. Company Chief Operating Officer Temple
testified, “[w]e told them our health care costs were really hurting us badly and we reviewed … our 15
labor burden cost [and] … We’re here to try to get a deal done early to avoid having to build banks,
that we had a contract that expired on June 14th.” Union International Representative Ferson told
the Company that any deal done early by the Union would have to contain increases in wages and
benefits. Ferson also explained the Union’s ratification procedure that included a vote by the
membership as well as the signed approval of the International Union before any agreement could 20
go into effect.
The Company presented a 15 point, 4 page initial bargaining proposal to the Union at the
February 18 session. Company Attorney McCarthy, “ran through” each of the Company’s
proposals and explained what the Company was looking for. The Company’s initial bargaining 25
proposal covered health insurance, grievance procedures, pending grievances, employees
returning to the bargaining unit, recall procedures, leaves of absence, holiday shutdowns, disability
benefits, health insurance restoration, vacations, wage rates for new hires, plant relocation/
severance agreement, wages, absenteeism/tardiness and duration.
30
At this first meeting the Union presented a 1-page proposal on “successors and assigns”
and a 44-point 2-page document entitled, “2002 Suggested Contract Discussions.” The Union
noted at the top of its 44 points for discussion; “The Company has approached the Union about the
possibility of reaching an early agreement. The Bargaining Committee has met to review items
that we may want to discuss with the Company in an attempt to reach an early agreement.” Union 35
International Representative Ferson covered with the Company the 44 items on the Union’s
proposal, item by item. Some of the Union’s items addressed temporary transfers, parking lots,
overtime procedures, modification to the incentives system, wages, holiday schedules,
improvement of dental and vision benefits, insurance benefits, improvements in vacation eligibility,
enhanced bereavement pay, modifications to the no-strike clause, additions to the skilled trade 40
classifications, enclosing all break areas and reviewing temporary transfer pay requirements.

6 The Union’s notice of the general membership’s meeting stated in part that “all union members should make
every effort to attend this meeting” adding “the purpose of this very important meeting is to discuss contract
proposals.”
7 The negotiating teams for the respective parties remained, for the greater part, the same throughout their
meetings.
JD(ATL)—64—02
- 5 -
No agreement was reached at the February 18 session.
The parties’ next met on February 25, with the same negotiators. The Union presented the
Company a 2-page proposal on overtime. According to Company Chief Operating Officer Temple 5
the Union was having a “hard time” with the current overtime provisions in the parties’ most recent
collective-bargaining agreement and wanted to change them. Union Bargaining Committee
Chairman Savage testified the Union made several proposals on overtime. Union International
Representative Ferson testified the parties spent the majority of their overall negotiating efforts on
overtime and health care issues. Ferson presented the Company a proposal concerning year-end 10
holiday shut down days with provisions for paid, as well as certain unpaid, holidays. The Company
verbally made its initial wage proposal which “was in the neighborhood of 30 plus cents an hour
[f]or three years.”
Company Chief Operating Officer Temple told the Union at the February 25 session the 15
Union’s proposals would cost the Company $950,000 for the first year and noted the Union had yet
to make a wage proposal. According to Temple, Union International Representative Ferson
responded the Company could save that much by not preparing for a strike. The Union presented
two written proposals regarding job descriptions. The parties discussed all the proposals without
arriving at any agreement.20
The parties met in sessions on March 1, 6, 7 and 8. During these sessions the Company
informed the Union it was looking for a “cost neutral” agreement. Union International
Representative Ferson testified the Union viewed the Company’s proposals as “concessionary” not
“cost neutral.” At the March 7 session the Union presented a 4-page revised non-economic set of 25
proposals. The Union explained each of its revised proposals. Some tentative agreements were
arrived at during the March sessions.
Specifically at the March 8 session, the parties’ agreed on matters such as changing
certain dates in the collective-bargaining agreement, changing certain Union officials names in the 30
collective-bargaining agreement, increasing life insurance coverage for the employees and
agreeing to dates certain when vacation checks would be available. At some point in the March
sessions the Union proposed a 1-year extension of the collective-bargaining agreement with some
language changes but wages and related economic matters would remain the same. The
Company responded it did not see how that would help their financial situation. Union International 35
Representative Ferson made a counter proposal on health coverage in which he proposed splitting
the coverage into bargaining unit and non-bargaining unit categories. The Company explored this
with its insurance carrier, but the parties’ were never able to agree on health insurance changes.
At the conclusion of the parties’ negotiating session on March 8, Company Attorney 40
McCarthy gave the negotiators a synopsis of where he thought negotiations were. McCarthy
explained the Company had put forth proposals toward a cost neutral contract and asserted what
the Union had proposed, without even discussing wages, would cost approximately $950,000 the
first year. McCarthy opined the parties’ were going in opposite directions. McCarthy again stated
costs were escalating and one of its customers was asking for a 1.7 million dollar give back in price 45
adjustments on parts. McCarthy explained that any monies spent to protect the customer between
JD(ATL)—64—02
- 6 -
then and mid-June would not be available for benefits in any new collective-bargaining agreement.
McCarthy admonished the Union, “If you’re prepared to go toward a neutral contract with us, we
need to see meaningful movement on your part addressing some of our proposals and, when
you’re ready to do that, give us a call.” McCarthy summarized saying “unless we can start turning
this ship around and dealing in realities, moving toward a cost neutral contract, we’re going to have 5
to go to June and see if there’s a way to solve this problem then because the contract expires June
14, and what ever money is spent by the Company to protect their customer between then and
June 14 wont be there in June.” Company Attorney McCarthy indicated the Company was
prepared to go forward toward a cost neutral contract but needed meaningful movement on the
Union’s part by addressing some of the Company’s proposals and added the Union; “When your 10
ready to do that give us a call.”
Union Bargaining Committee Chairman Savage recalled Company Attorney McCarthy
telling the Union Bargaining Committee at the March 8 session, “If we weren’t willing to enter into
an agreement like the Company had outlined we were wasting our time.” Savage said the Union 15
negotiators left the session at that time. The Company waited until 4:00 p.m. that day and left also.
Thereafter Union International Representative Ferson wrote, Company Vice President of
Human Resources Koestner on March 18 notifying the Company that pursuant to Article VIII,
“Term of Agreement” of the parties’ collective-bargaining agreement the Union was providing 20
notice of the Union’s desire to amend the parties’ agreement. In his letter Ferson also requested
the Company provide the Union with certain specified information.
Company Chief Operating Officer Temple testified the Company arranged for another
session with the Union for May 9. The same negotiating committee members were present for 25
both sides except the Company added Attorney Theodore M. Eisenberg to its negotiating
committee.
At the May 9 session Company Attorney Eisenberg spoke for the Company. Eisenberg
explained the Company had agreed to General Motors Corporation’s demand for a 1.7 million 30
reduction in cost and added health care costs had escalated not the 15 to 16 percent earlier stated,
but rather 26 percent and added the Company was expending funds to build a parts bank for its
protection upon the collective-bargaining agreements’ expiration in mid-June. Attorney Eisenberg
expressed confusion as to the actual expiration date for the parties’ collective-bargaining
agreement. According to Temple, Union International Representative Ferson responded he was 35
not sure the collective-bargaining agreement would expire. Temple said this was the first time the
Union had expressed an opinion that the contract did not expire but rather renewed or extended for
another year. According to Union Bargaining Committee Chairman Savage, Ferson explained that
to cancel the agreement required a 60-day notice prior to the expiration date of the collective-
bargaining agreement and noted the Company had not provided such notice. Union International 40
Representative Ferson testified he told Company Attorney Eisenberg, “I think the contract has
rolled for another year.” Eisenberg wanted to know how he came to that conclusion. Ferson
responded, it was outlined in the parties’ collective-bargaining agreement. The May 9 meeting
ended immediately thereafter with the parties’ agreeing to get together about future session dates.
45
The parties’ agreed to meet for further sessions on May 29, 30, June 3, 11, 12 and 13.
JD(ATL)—64—02
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Company Attorney Eisenberg wrote Union International Representative Ferson, on May
17, asking that the Union give an unequivocal and definite statement to the Company that the
Union’s position was that the collective-bargaining agreement would not expire on June 14, but
rather extended for an additional year and that the no-strike clause remained in effect. 5
Company Chief Operating Officer Temple met with Ferson on May 21, about Eisenberg’s
May 17 letter. Ferson told Temple he had not seen Eisenberg’s letter, but the Union’s position was
that “the contract rolls over for another year.” Temple provided Ferson a copy of Eisenberg’s letter.
10
Ferson responded to Eisenberg’s May 17 letter. In his May 21 response Ferson indicated
he had told Company Chief Operating Officer Temple that day it was the Union’s position that not
only did the no-strike and no lock-out clauses remain in effect, but that all terms and conditions of
the then current collective-bargaining agreement remained in effect unchanged for 1 more year,
unless modified by mutual agreement. Ferson said the basis for the contract extension was the 15
“Term of Agreement” clause of the collective-bargaining agreement. In his letter Ferson denied
any “rumblings” concerning a strike at the Company. Ferson further noted that negotiations
towards an “early” agreement “failed” on March 8 when the Company’s Attorney, after only 6 of 9
scheduled meetings, issued an ultimatum that the Union call the Company when they were ready
to reach an agreement on the Company’s terms. Ferson asserted in his letter that the Company’s 20
ultimatum resulted in no further discussions concerning an early agreement.
Company Chief Operating Officer Temple credibly denied the Company ever told the
Union to call them whenever they were ready to reach an agreement on Company terms.
25
In a May 24 letter to Union International Representative Ferson, Company Attorney
Eisenberg noted the Union’s position, contrary to the Company’s, that the collective-bargaining
agreement would not expire on June 14, but rather extended for another year. Eisenberg asked to
arbitrate that issue and provided Ferson a Request for Arbitration Panel Form and urged Ferson to
sign it on behalf of the Union. The request form indicated an arbitrator should decide the issue of 30
whether the collective-bargaining agreement between the parties rolled over or extended for
another year.
The parties’ met in session on May 29. Company Attorney Eisenberg asked again if the
matter of whether the contract renewed for another year could be submitted to arbitration. 35
According to Company Chief Operating Officer Temple, Ferson said the Union did not want to go to
arbitration and added there was “no mechanism” for the Company to take that or any issue to
arbitration. Union Bargaining Committee Chairman Savage testified Ferson simple said the
collective-bargaining agreement had “rolled-over” for another year. International Union
Representative Ferson said he told Company Attorney Eisenberg the Union was “considering what 40
[its] position would be as to whether or not [the Union] was going to ultimately arbitrate. . . [but] he
could expect a response by Monday of the following week.”
At the May 29 bargaining session, the Union presented a three-page set of non-economic
proposals to the Company with a notation:45
JD(ATL)—64—02
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Pursuant to the March 18, 2002, Union notification to the Company of the Union’s
desire for amendments to the existing contract the Union hereby tenders the non-
economic portion of these desired changes for consideration to the Company as to
possible mutual agreement to allow for changes to the exiting agreement between
the parties. 5
The Union also presented a 1 page document setting forth its economic proposals with the same
notice referred to above, namely that the economic proposals were presented pursuant to the
Union’s desire for amendments to the existing collective-bargaining agreement.
10
At the May 29, bargaining session, the Company presented 4 pages of economic and non-
economic proposals. According to Company Chief Operating Officer Temple, International Union
Representative Ferson stated the Union was under no obligation to bargain over the Company’s
proposals because the Company had never given a notice to amend or to terminate8 the collective-
bargaining agreement, and as such, the Union did not have to bargain over any of the Company’s 15
proposals. Company Attorney Eisenberg stated, “that it was highly, highly, highly, a whole bunch
of highlys unlikely” the parties would reach an agreement “unless [the Union] changed their mind
about bargaining over [the Company’s] proposals.”
The parties stipulated that during the May 29 bargaining session and continuing through 20
the June 12 session the Union took the position it would only bargain over it’s proposals presented
at the May 29 bargaining session and would only bargaining on Company proposals presented on
that date if such proposals coincided with the Union’s proposals.
In a June 2 letter to the Federal Mediation and Conciliation Service (FMCS), Union 25
International Representative Ferson notified FMCS the Company had no contractual right to submit
for arbitration the issue of whether the parties’ collective-bargaining agreement renewed for an
additional year. Ferson advised FMCS the Union had not, and would not, agree, contractually or
otherwise to submit that issue to arbitration. The Union requested FMCS stop processing the
Company’s “unilateral” demand for that issue be arbitrated. 30
Thereafter the parties held sessions on June 3, 11, 12 and 13.
At the June 3 meeting, Company Attorney Eisenberg again asked if the Union had
changed it’s position regarding arbitrating the issue of whether the collective-bargaining agreement 35
would extend for another year. Union International Representative Ferson explained the Union
was “not going to proceed to arbitration” as the Union considered “there was no responsibility to do
so”; Ferson said, “there was no right for the Company [to] grieve” . . . “that the contract did not
allow the employer to submit to arbitration that it was the Union who had to be the moving party”
and “there was no mechanism for the employer to request arbitration.” 40
At the June 3 session the Union specifically advised the Company it would not bargain with
respect to the following provisions of the Company’s May 29 contract proposals:

8 It is undisputed the Company never at any time gave a notice to amended or to terminate the collective-
bargaining agreement.
JD(ATL)—64—02
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Section I. B. Wages For New Employees
Section II Health Insurance
Section III Pension, paragraphs B and C.
Section IV Grievance Procedure5
Section V. Pending Grievances
Section VI Return to Bargaining Unit
Section VII Recall procedure
Section VII Leaves of Absence
Section X Disability Benefits10
Section XI Vacations
Section XII Plant Relocation/Severance Agreement
Section XIII Excessive Absenteeism and Tardiness Program
After further discussions Company Attorney Eisenberg stated, “If you are not going to 15
bargain over our proposals, there’s no hope of reaching an agreement.”
The parties’ stipulated the Union took the position from the May 29 bargaining session
through the June 12 bargaining session, that it would only bargain with respect to the following
items from the Company’s May 29 contract proposals:20
Section I. A. Wages for Full Time Employees
Section III Pension, paragraph A.
Section IX Holiday Shutdown
Section XIV Term of Agreement-Termination Date25
At the June 12 session the Company presented its final contract proposals, which covered
economic as well as non-economic matters.
According to Company Chief Operating Officer Temple no sessions have been held after 30
June 13, nor has the Company demanded that the Union come to any sessions since that date.
On June 13, Union International Representative Ferson wrote the Company as follows:
Thursday, June 13, 200235
Mrs. Marcia Koestner
Vice President Human Resources
Checkers Motors
2016 N Pitcher Street40
Kalamazoo, MI 49007
Dear Mrs. Koestner:
As you know the Company has provided the Union with a final proposal containing 45
various items that do not coincide with the Union’s items of desired changes
JD(ATL)—64—02
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pursuant to its March 18, 2002 notice of desire for amendments to the existing
contract. That proposal furthers the Company’s failure and refusal to bargain in
good faith by conditioning agreement on the Union accepting proposals which the
Company has improperly tendered, which actions(s) have been made subject of a
charge filed by the Union.5
It has become obvious to the Union that your Mr. Eisenberg’s statement of June
3rd concerning there being “no hope of reaching an agreement” was tragically
prophetic and in hindsight a clear warning as to the extent the Company is willing
to go in engaging in improper and illegal activities to extract concessions from our 10
membership.
The Union has come to the realization that in fact the parties will not be able to
achieve mutual consent to change the existing contract pursuant to the terms of
Article VIII of the agreement unless and until we concede to the Company’s 15
improper demands. Accordingly, effective immediately PACE and its Local 6-0682
withdraw our March 18, 2002 notice of the Unions desire to amend the agreement.
Further by copy of this letter and to the Michigan Employment Relations
Commission the Union withdraws its March 18, 2002 Notice to Mediation Agencies
( FORM F-7).20
PACE Local 6-0682 membership will continue to report to work as usual and be
working under the terms of the automatically renewed agreement. Again, we
would consider any unilateral changes(s) by the Company as a breach of the
contract and or a violation of the law.25
Sincerely,
/Signature/
Mr. Daniel E. Ferson30
International Representative
Copy to Federal Mediation and Conciliation Service
And to Michigan’s Bureau of Employment Relations
Mr. T. Eisenberg 35
The June 13, expiration date for the parties collective-bargaining agreement passed
uneventfully. On July 15, the Union filed a grievance alleging, “the Company is in violation of the
term of agreement language (Article VIII), Article V Section 8 and 22, Article VI Section 18, Article II
and current retiree contract language and/or other Articles and Sections.” Union Chairman of 40
Bargaining Committee Savage testified the grievance was filed because the Company imposed
changes in the current collective-bargaining agreement that the Union contends renewed or rolled
over for another year.
Union International Representative Ferson specifically testified it was the Company’s 45
unilaterally instituted changes to the parties collective-bargaining agreement that triggered the
JD(ATL)—64—02
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grievance and added the Union was “absolutely” prepared to arbitrate the grievance. Ferson
acknowledged some of the changes the Company implemented were contained in the Company’s
final contract proposals.
On August 30, Company Attorney Mendelson wrote Union International Representative 5
Ferson regarding the Union’s demand for arbitration of its grievance. In the letter the Company
proposed the parties consult to see if they could arrive at a mutually agreeable arbitrator. The
Company, however, also advised it was reserving all its rights and defenses in connection with the
grievance, including, but not limited to: “(1) the Union’s refusal to ‘unbundle’ its grievances, (2) the
expiration of the contract, (3) NLRB proceedings, (4) Union bad faith, (5) estopped, and (6) any 10
other defense, whether or not asserted at this time.”
Union International Representative Ferson responded to Mendelson on September 4,
rejecting the Company’s proposal for a mutually agreed upon arbitrator pointing out the contract
specifically called for the selection to be made from an FMCS panel. Ferson also requested 15
clarification of all the Company’s defenses to the grievance except the one labeled “NLRB
proceedings.”
On September 6, Company Attorney Mendelson responded to Ferson’s September 4,
letter saying the Union was wrong insisting on an FMCS alternate striking method to select an 20
arbitrator. Mendelson insisted FMCS encourages parties to reach an agreement on a method for
selecting an arbitrator when the expired labor agreement does not specify a method. Attorney
Mendelson then advised:
Finally, in view of the Union’s bad faith refusal to process or resolve 25
related grievances in a timely fashion before contract expiration, the Union’s bad
faith refusal to define, explain or separate its post-contract termination bundle of
grievances (despite the Company’s repeated requests), the dismissal of the
Union’s spurious unfair labor practice charge and the pending NLRB hearing
concerning the Union’s repeated and blatant violations of the National Labor 30
Relations Act, we do not believe that further discussion of the Company’s
defenses to the Union’s belated bad faith posturing is warranted.
In as much as Article VIII “Term of Agreement” of the parties collective-bargaining
agreement is intertwined with the issues herein it is set forth in full:35
ARTICLE VIII
TERM OF AGREEMENT
THIS AGREEMENT between the undersigned officers of the Company, on behalf
of the Company, and the undersigned officers and members of the Union 40
Bargaining Committee on behalf of Local Union No. 6-0682 of the Paper, Allied
Industrial, Chemical & Energy Workers International Union, shall become effective
June 14, 1999, and shall extend until June 13, 2002, and from year to year
thereafter unless changed by consent of both parties. Should either party desire
to amend or chance this Agreement, such party shall give the other sixty (60) days 45
written notice before the expiration of the contract.
JD(ATL)—64—02
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The Deferral Issue
The Union seeks to have all complaint allegations herein resolved pursuant to the
grievance-arbitration procedure of its collective-bargaining agreement with the Company under 5
Collyer Insulated Wire, 192 NLRB 837 (1971) and United Technologies Corp., 268 NLRB 557
(1984). The Union argues the crux of the dispute herein involves the obligations of the parties
under Article VIII “Term of Agreement” of their collective-bargaining agreement with emphasis on
the parties obligations when a notice to amend the agreement is filed by one of the parties.
10
The Government argues the case should not be deferred under the Collyer doctrine
because before the parties collective-bargaining agreement’s expiration date of June 13, and at a
time when both parties agreed the collective-bargaining agreement containing a grievance
arbitration procedure was in effect, the Union unequivocally refused to arbitrate the issue of
whether the contract expired or automatically renewed for another year. The Government notes 15
the Union rests its claim for deferral on a grievance it filed on July 15, a month after the collective-
bargaining agreement’s normal expiration date, and at a time when the Company disputes the
existence of the collective-bargaining agreement. The Government contends deferral is
inappropriate when the existence of the collective-bargaining agreement containing the arbitration
clause is in dispute. The Government also contends deferral is inappropriate, when, as here, the 20
charging party Company did not have the right to invoke arbitration under the grievance-arbitration
procedure.
The Company takes the position the Union’s argument for deferral is frivolous, and notes
the Union had consistently refused to arbitrate at the Company’s request and did not even raise 25
deferral in its initial answer but only did so after the Board’s dismissal of its Section 8(a)(5) and (1)
charge against the Company. The Company argues, as does the Government, that deferral is
inappropriate when the charging party before the Board does not have the right to trigger
arbitration under the contractual dispute resolution mechanism. The Company specifically points
out the parties collective-bargaining agreement did not empower it to file a grievance or move a 30
contractual dispute into arbitration.9
The parties have sought to have the issue of whether the contract extended or rolled over
for an additional year submitted to arbitration but never at the same time or pursuant to the same
rationale.35
In addressing this issue I first note that after learning from the Union in early May that it
was the Union’s position the parties agreement extended or rolled over for an additional year, the
Company sought to have that issue submitted to arbitration. The Company in late May even
forwarded a Request for Arbitration Panel Form to the Union for its approval. The Union objected 40

9 The Company also advances other reasons that deferral is not appropriate namely; the grievance is
nonarbitrable because of the expiration of the agreement; the Union is estopped from arbitrating this
grievance since it refused to proceed to arbitration when requested to do so by the Company; the Union’s
grievance is really multiple grievances which the Union refuses to unbundled; an arbitrator should defer to a
decision of the Board; and, the Union’s bad faith refusal to bargain precludes arbitrating its grievance. By my
disposition of this issue I need not address all of the Company’s reasons for non-deferral.
JD(ATL)—64—02
- 13 -
to having the issue presented to arbitration contending there was “no mechanism” for the Company
to take that, or any other issue, to arbitration. The Union even notified FMCS on June 2, the
Company had no contractual right to submit for arbitration the issue of whether the parties’
collective-bargaining agreement renewed for an additional year. The Union advised FMCS it had
not, and would not agree, contractually or otherwise, to submit the issue to arbitration. The Union 5
specifically requested FMCS stop processing the Company’s “unilateral” attempt to have the issue
arbitrated.
After June 13, and specifically on and after July 15, the Union changed its position and
sought to have the issue of whether the parties’ agreement expired on June 13 or renewed for 10
another year submitted to arbitration. The Company at that point changed its position and declined
arbitration.
The parties collective-bargaining agreement is clear that employees or the Union may file
grievances but only the Union can initiate arbitration. Stated differently the grievance and 15
arbitration mechanisms in the parties’ contract are one-sided in that the Union alone has the right
to initiate arbitration.
In agreement with the Government and Company, I find deferral is inappropriate in this
case because the parties’ collective-bargaining agreement does not provide the charging party 20
(Company herein) with access to the grievance/arbitration procedure. The Board in
Communication Workers (C & P Telephone), 280 NLRB 78 ft. n. 3 (1956) adopted the judge’s
denial of a motion for deferral to arbitration in a Section 8(b)(3) refusal to bargain case by holding:
In adopting the judge’s denial of the Respondent’s motion for deferral to 25
arbitration, we solely rely on the fact that the parties’ collective-bargaining
agreement does not provide for the Charging Parties with access to the
grievance/arbitration procedure and that to allow Respondent to waive this
procedural defect would fundamentally alter the existing dispute resolution
procedure.30
I am persuaded the Board’s holding in Communication Workers is controlling herein and
I conclude deferral is inappropriate.
I reject the Union’s contention the Board’s decision in Tri-Pak Machinery, Inc., 325 NLRB 35
671 (1998) compels a different conclusion namely a finding of deferral in the instant case. In Tri-
Pak, the Board found no merit to the Government’s broad assertion: “that deferral to arbitration is
inappropriate for questions regarding extensions or renewals of collective-bargaining agreements
as to which the parties are in dispute.” However, the Board went on to add, “if there is no dispute
about the existence of the contract containing the arbitration clause. . .” At the time in July that the 40
Union filed the grievance which it now seeks to have form the basis for deferral to arbitration there
existed a real dispute as to whether the contact continued to exist. The Union’s conversion to the
arbitration route comes too late to be successful because it comes at a time when the Company is
unwilling to go to arbitration because of a dispute over whether the contract continues to exist.
45
JD(ATL)—64—02
- 14 -
The Bargaining and Filings
Did the Union between May 29 and June 13, violate the Act when it failed and refused to
bargain with regard to collective-bargaining proposals submitted by the Company unless said
proposals coincided with proposals submitted by the Union? Additionally did the Union violated the 5
Act by refusing since June 13, to engage in any further negotiations with the Company toward
reaching a collective-bargaining agreement?
The Union contends it was within its contractual rights in refusing to bargain with the
Company over those proposals of the Company that were not encompassed within the Union’s 10
notice to amend. The Union takes the position that if the Company had wanted to negotiate or
bargain over such other items the Company should have sent a notice to amend or a notice to
cancel but did neither. The Union contends the absence of a reciprocal notice to amend or notice
to cancel is fatal to the Government’s and Company’s interpretation of the parties collective-
bargaining agreement. The Union takes the position that the mere fact that in its notice to amend it 15
cited multiple sections of the parties agreement did not transform its notice to amend into a notice
terminate the agreement.
The Government and Company, on the other hand, take the position the Company’s
February 18 comprehensive collective-bargaining proposal for a three-year agreement terminating 20
on June 12, 2005, evidenced the Company’s intention to terminate the agreement and as such was
provided to the Union greater than the required 60 days before the expiration of the contract.
Thus, they argue the Union was not privileged to limit negotiations to its (Union’s) proposals.
Does the Company’s February 18 proposal satisfy the language of the party’s agreement 25
such as to be considered a termination of agreement notice? The termination language of the
parties agreement, as noted elsewhere in this decision, in part reads; “Should either party desire to
amend or chance this Agreement, such party shall give the other sixty (60) days written notice
before the expiration of the contract.”
30
In agreement with the Government and Company I find the Company fulfilled the
requirements of the termination clause of the parties collective-bargaining agreement by the
actions it took and the Union’s reactions and responses thereto. First, the Company made it clear
to the Union when it first approached the Union in December 2001, that it needed a new
agreement because of price reduction requests from its main customer and escalating health care 35
costs. The Company explained to the Union’s entire bargaining committee on December 20, 2001,
that it needed early negotiations to try and work out an agreement before June, with June being the
expiration date of the parties collective-bargaining agreement. Second, the Union held a general
membership meeting on February 14, at which all “union members” were urged to attend “to
discuss contract proposals.” Third, the parties agreed to and participated in bargaining 40
commencing on February 18, and continuing thereafter through March 8, during the first phase of
their negotiations. At the February 18 negotiating session the Company presented a 15 point
contract proposal explaining each item which included health insurance, grievance procedures,
bargaining unit composition, recall procedures, leaves of absence, vacations, wages, absenteeism
and that the Company was seeking a 3-year agreement with a June 12, 2005 expiration date. 45
Fourth, the Union recognized it was negotiating toward a new collective-bargaining agreement in
JD(ATL)—64—02
- 15 -
that it presented its 44 point set of contract proposals at the February 18 negotiating session
covering various items including “agreeable wage increases each year of agreement” as well as
holidays, retiree insurance benefits, overtime, vacations, parking facilities, job descriptions,
modifications to the no-strike clause, pay days, and, temporary transfer pay requirements. Fifth,
during these February and/or March negotiating sessions the parties arrived at a few tentative 5
agreements. The parties continued to make, review and exchange proposals during this time to
include the Company’s making a 30-cent per hour wage increase proposal for each of the three
years of their proposed agreement. The Company’s attorney, on March 8, in summarizing the
parties negotiating status urged moving toward an agreement “ . . . because the contract expires
June 14 . . . ” At one point in the March negotiations the Union even proposed a 1-year extension 10
to the collective-bargaining agreement.
In light of the above actions and responses of the Company and Union I am fully
persuaded the Company, clearly conveyed the essential message to the Union that it wished to
terminate their contract and negotiate a replacement collective-bargaining agreement. That the 15
Union understood that the Company’s actions and February 18 contract proposals constituted
notice to terminate the agreement is self-evident. The Union actively participated in the
negotiations making full contract proposals even proposing a 1-year extension of the parties’
agreement. Absolute perfection is not required to give notice to terminate an agreement. For
example, the Board in The Oakland Press Co., 229 NLRB 476 (1977) upheld a finding by Judge 20
James L. Rose that there had been substantial compliance with the parties termination clause
therein even though the party attempting to terminate the agreement had not followed their contract
language. Judge Rose concluded, with Board approval, that so long as the essential message was
conveyed regarding terminating the agreement, such would be sufficient. In that regard Judge
Rose noted that a collective-bargaining agreement is a total document and changes in one or more 25
of its terms necessarily implies termination of the agreement and emergence of a new one. That
same rationale applies herein, namely, that the Company’s February 18 contract proposals
constituted notice to terminate the agreement, thus the Union was precluded from insisting
bargaining be limited to its proposals. See also: Campaign County Contractors Assn., 210
NLRB 467 (1974).30
Furthermore, the Board has recognized that even when notice is not given, a party, by its
actions, may waive notice requirements and agree to bargain. Industrial Workers AIW Local 770
(Hutco Equipment), 285 NLRB 651 fn. 2 and 654 (1987). Here the Union negotiated over an
extended period making extensive proposals and responded to several counter proposals. For 35
example, as noted, the Union even proposed a 1-year extension to the parties’ agreement. I find
the Union herein by its extended negotiations with the Company also waived any contractual
termination notification requirements. See: Lou’s Produce, 308 NLRB 1194 at 1200 fn. 4 (1992).
Finally, and out of an abundance of caution, I address the contention by the Government 40
and Company that the Union’s March 18, notice to amend the parties collective-bargaining
agreement was so broad that, in reality, it constituted a notice to terminate the agreement.
Again in agreement with the Government and Company I find the Union’s letter was so
broad and non-specific that it constituted a notice to terminate the agreement notwithstanding the 45
fact the Union’s March 18 letter stated, “please accept this letter as written notice of the Union’s
JD(ATL)—64—02
- 16 -
desire to amend the agreement.” The Union in its letter advised, for example, that acceptance by
the membership “of a collective bargaining agreement” was subject to the approval of the Union’s
international president and continued “there will be no collective bargaining agreement between the
Union and [C]ompany until the Company is notified by the International Representative after
acquiring approval of the contract in question under the foregoing constitutional provision from the 5
International President. . .” The Union also made an information request for copies of “all signed
mutual agreements now in effect which amend or otherwise alter or clarify the agreement, which
the [C]ompany intends to no longer honor upon reaching a new agreement.” The Notice to
Mediation Agencies Form the Union submitted to FMCS and attached to its March 18 letter reflects
the contract expiration date as June 13. As alluded to the Union made an extensive information 10
request in its letter asking for; wage rates and dates of hire for all bargaining unit employees;
hourly straight time earning reports; cent-per-hour costs of all fringe benefits; copies of pension and
health insurance plans, stock options, and profit and gain sharing plans for unit employees;
insurance experience data for unit employees; copies of various government required filings such
as IRS-5500 and EEO-1 forms; and, current job evaluations for each job and classification of 15
employees represented by the Union. It is clear from the above references to a collective-
bargaining agreement, as well as the all encompassing information request, that the Union was
asking, although labeled otherwise, to terminate the parties collective-bargaining agreement and
negotiate a new replacement agreement. The Board has held that a notice to amend that is
broadly framed, as was the notice herein, is tantamount or equivalent to a notice to terminate. 20
See: Bridgestone/Firestone, Inc., 331 NLRB 205 at 208 (2000).
In summary, and for all the above reasons, I find the parties collective-bargaining
agreement did not, as contended by the Union, “roll over” extend or renew for an additional year.
The Union was not privileged to bargain only about those proposals of the Company that coincided 25
with the proposals it submitted. The Union by bargaining, between May 29 and June 13, only on
proposals of its choosing, and refusing to bargain concerning mandatory subjects of bargaining
advanced by the Company, violated Section 8(b)(3) of the Act and I so find. The Union also
violated Section 8(b)(3) of the Act by its refusal to bargain further with the Company after June 13.
The Union by its overall conduct on and after May 29, has failed and refused to bargain in good 30
faith with the Company in violation of Section 8(b)(3) of the Act.
Conclusions of Law
1. Local No. 6-0682, Paper, Allied-Industrial Chemical and Energy Workers 35
International Union, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the
Act.
2. Checker Motors Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. 40
3. By refusing between May 29 and June 13, to bargain with regard to collective-
bargaining agreement proposals submitted by the Company during negotiations unless such
proposals coincided with proposals submitted by the Union; and, since June 13 refusing to engage
in any further negotiations toward a collective-bargaining agreement with the Company, the Union 45
has refused to bargain in good faith with the Company in violation of Section 8(b)(3) of the Act.
JD(ATL)—64—02
- 17 -
4. These unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
Remedy5
Having found that the Union has violated Section 8(b)(3) of the Act, I order it to cease and
desist therefrom and to take certain affirmative action designed to effectuate the purposes of the
Act.
10
I recommend the Union be ordered to meet and bargain in good faith with the Company
upon request. I also recommend the Union be ordered, within 14 days after service by the Region,
to post an appropriate Notice to Members for a period of 60 days.
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended:10
ORDER
The Union, Local No. 0682, Paper, Allied-Industrial Chemical and Energy Workers 20
International Union, AFL-CIO-CLC, its officers, agents, and representatives, shall:
1. Cease and desist from refusing, as the exclusive bargaining representative of the
Company’s employees in the appropriate unit, to bargain in good faith collectively with the
Company.25
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) On request by Checker Motors Corporation, bargain in good faith, as the
exclusive bargaining representative of the Company’s unit employees, with respect to wages, 30
hours, and other terms and conditions of employment and, if an agreement is reached, embody it
in a signed contract.
(b) Within 14 days after service by the Regional Director for Region 7 of the
National Labor Relations Board post at its business office, meeting places and on any Company 35
provided bulletin boards where union materials are posted, copies of the attached Notice to
Members marked “Appendix.”11 Copies of the Notice to Members, on forms provided by the
Regional Director for Region 7, after being signed by the Union's authorized representative, shall

10 If no exceptions are filed as provided by §102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in §102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
11 If 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.”
JD(ATL)—64—02
- 18 -
be posted by the Union upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are customarily posted. Reasonable steps
shall be taken to ensure that the notices are not altered, defaced, or covered by any other material.
(c) Within 21 days after service by the Region, file with the Regional Director for Region 7 of 5
the Board a sworn certification of a responsible agent or representative on a form provided by the
Region attesting to the steps that the Union has taken to comply.
Dated at Washington D. C.
10
___________________________
William N. Cates
Associate Chief Judge
JD(ATL)—64—02
- 19 -
APPENDIX
NOTICE TO MEMBERS
Posted by the Order of the5
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.10
WE WILL NOT refuse, upon request, to meet and bargain in good faith with Checker Motors
Corporation with respect to wages, hours and other terms and conditions of employment affecting
the employees in the appropriate unit.
15
WE WILL, on request by Checker Motors Corporation, bargain collectively, as the exclusive
bargaining representative of the employees in the appropriate unit, with respect to wages, hours,
and other terms and conditions of employment and, if an agreement is reached, embody it in a
signed contact.
20
LOCAL NO. 6-0682, PAPER, ALLIED-INDUSTRIAL
CHEMICAL AND ENEGRY WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC
(Employer)
25
Dated: By:
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether 30
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office set
forth below. You may also obtain information for the Board’s website: www.nlrb.gov.
35
477 Michigan Avenue - Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF 40
POSTING AND MUST NOT BE ALTERD, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244
45