Frontier Dodge, Inc

National Labor Relations Board - Board Decisions

Oct 9, 1984

272 N.L.R.B. 722 (N.L.R.B. 1984)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frontier Dodge, Inc and International Association
of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No 115, Local Lodge
1528 Case 32-CA-4779
' 9 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 September 1983 Administrative Law
Judge Harold A Kennedy issued the attached deci
sion The General Counsel filed exceptions and a
supporting brief to which the Respondent filed an
opposing brief The Respondent also filed cross ex
ceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Frontier
Dodge Inc Modesto California its officers
agents successors and assigns shall take the action
set forth in the Order
' The General Counsel and the Respondent have excepted to some of
the judge s credibility findings The Board s established policy is not to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 In dismissing the 8(a)(5) bad faith bargaining allegation the judge
found relying on Continental Nut Co 195 NLRB 841 (1972) that the
Union s conduct precluded a test of the Respondent s good faith Howev
er in adopting the judge s finding that the Respondent did not violate
Sec 8(a)(5) and (1) we find no evidence of bad faith bargaining on the
Respondent s part irrespective of the Union s intentions or conduct at or
away from the bargaining table Like the judge Chairman Dotson and
Member Dennis find Mar Len Cabinets 243 NLRB 523 (1979) chstin
guishable Member Hunter however does not find Mar Len Cabinets chs
tinguishable from the Instant case and would overrule Mar Len Cabinets
to the extent it Indicates that insistence on the elimination of a union se
curity clause without more evidences an intent to bargain in bad faith
We also find it unnecessary to rely on the judge s discussion of Atlas
Metal Parts Co v NLRB 660 F 2d 304 (7th Cir 1981) Also in his ex
ceptions the General Counsel contends that the judge in dismissing the
bad faith bargaining allegations failed to consider the Respondent s over
all conduct particularly the various statements found by the judge to be
8(a)(1) violations As we find no evidence that the Respondent failed to
bargain in good faith we find no basis for concluding on the strength
alone of the Respondent s statements away from the bargaining table that
otherwise lawful conduct was converted into a violation of Sec 8(a)(5)
and (1) Baldwin County Electric Membership Corp 145 NLRB 1316
(1964) Finally at par 4 under the section of the decision entitled Con
elusions of Law the judge inadvertently stated that the Respondent had
acted in violation of Sec 8(b)(1) rather than Sec 8(a)(1) of the Act
DECISION
j STATEMENT OF THE CASE
HAROLD A KENNEDY Administrative Law Judge
The International Association of Machinists and Aero
space Workers AFL-CIO District Lodge No 115
Local Lodge No 1528 (Local 1528 or as the Union)
filed charges on August 17 and September 3 1982 1 As a
result of the charges the Regional Director for Region
32 of the National Labor Relations Board issued a corn
plaint on November 12 charging Frontier Dodge Inc
currently d/b/a Fireside Dodge with violating Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act) 2 The main charge is that Respondent refused to
bargain in good faith making and adhering to regres
sive bargaining proposals Additionally Respondent is
alleged to have caused and prolonged an unfair labor
practice strike Violations of Section 8(a)(1) are also al
leged The trial of the case took place in Modesto Cali
forma on Apnl 5 and 6 1983
A Undisputed Matters
Respondent in its answer admits that it meets the
Board s applicable discretionary jurisdictional standard
and is an employer within the meaning of Section 2(6)
and (7) of the Act The answer admits that Respondent
is a California corporation engaged in the retail sale and
service of motor vehicles at its place of business in Mo
desto California Respondent grossed in excess of
$500 000 during the 12 months preceding issuance of the
complaint During the same period Respondent pur
chased and received from out of state goods or services
valued in excess of $5000 Respondent also admits that
the Union is a labor organization within the meaning of
Section 2(5) of the Act I therefore find that it will effec
tuate the policies of the Act for the Board to assert its
jurisdiction herein
Additionally Respondent admits and I find that
Keven Sosinsky Respondent s executive vice president
and Norris Jones Respondent s service manager were at
all material times supervisors and agents within the
meaning of Section 2(11) and (13) of the Act and that
David Strimling and August Sommerfeld collective bar
gaining representatives from Sequoia Employer s Coun
cil were at all material times agents of Respondent
within the meaning of Section 2(13) of the Act
The complaint does not refer to the original charge of August 17
1982
Frontier Dodge Inc has operated under different trade names but
has existed as a corporate entity at least since 1979 It is not disputed that
Kevin Sosinsky who became the executive vice president and general
manager in January 1981 and later its president and Jim Brooks now
own all of its stock Sosinsky testified
Bill Hughes Dodge is who Joaquin Enterprises bought the Dodge
agency from back in 1979 I believe the corporation has always been
the same the corporation is Frontier Dodge Inc and It was Fron
tier Dodge Inc d/b/a Bill Hughes Dodge and then Joaquin Enter
prises bought it and it was Frontier Dodge and then I bought it and
it became Frontier Dodge Inc d/b/a Fireside Dodge
Changes in the transcript requested by the General Counsel and not
objected to by either Respondent or the Charging Party are noted and
made
272 NLRB No 114
FRONTIER DODGE 723
It is also undisputed that since about 1949 Respondent
has recognized the Union as the exclusive collective bar
gaining representative for an appropriate unit described
as follows
All mechanics frame and/or front end machine
men auto electricians parts department employees
lubricators used car lot and parts pick up employ
ees employed at Respondent s Modesto California
facility excluding all other employees guards and
supervisors as defined in the Act 3
Respondent has entered into a series of collective bar
gaining agreements with the Union over the years the
most recent being for the period July 1 1979 through
July 1 1982 Respondent was owned by Bill Hughes at
the time the last agreement was executed In 1979 Joa
gum Enterprises purchased Respondent and in January
1981 Joaquin Enterprises sold a 10 percent interest in Re
spondent to Kevin Sosinsky and his wife 4 Sosmsky
became the executive vice president and general manager
of Respondent in January 1981 and unlike the other
principals of Joaquin Enterprises became involved in the
day to day operation of the Company Prior to acquiring
the 10 percent share (with his wife) Sosinsky was an em
ployee of Chrysler Corporation and had no interest in
Respondent During the time period material relevant to
the proceeding—from April to September 1982—So
sinsky continued to be a 10 percent owner (with his
wife) and an officer of Respondent Joaquin Enterprises
was the other owner of Respondent Brett Speers was
the majority stockholder and president of Joaquin Enter
prises In August 1982 Joaquin Enterprises filed for bank
ruptcy and in January 1983 the sale of Joaquin Enter
prises 90 percent Interest in Respondent to Sosinsky and
Jim Brooks was approved After Sosinsky and Brooks
acquired the stock of Respondent Sosinsky was named
president Although the corporate entity has remained
the same Respondent changed its trade name from
Frontier Dodge to Fireside Dodge in January 1983
There is no successorship issue in the case and Re
spondent does not deny responsibility for any unfair
labor practices that may have occurred during the rele
vant time period April to September 1982 5
B Contested Allegations
k. 1 The alleged failure to bargain
The complaint alleges Respondent refused to bargain
in good faith in violation of Section 8(a)(1) and (5) Spe
cifically paragraph 11 alleges
(a) From about April 21 through September 15 Re
spondent made regressive bargaining proposals includ
3 Kevin Sosinsky who was executive vice president and general man
ager at the time testified that in April 1982 Respondent had around 25 or
30 employees Approximately 12 or 14 of such employees worked in the
service and parts departments and belonged to the bargaining unit
4 A purchase agreement dated January 2 1981 and in evidence as R
Exh 1 gave Sosinsky and his wife the right to buy additional shares He
testified he would not have bought the original 10 percent share if he
could not buy the remaining 90 percent of Frontier s stock
All dates used herein are for the calendar year 1982 unless otherwise
stated
mg inter aim elimination of the union security clause in
favor of an open shop and a more limited senionty
system
(b) Respondent proffered the proposals described in
subparagraphs 11(a) without tendering any legitimate jus
tification in support of such regressive modifications of
the employees working conditions and adhered to said
proposals for the duration of the bargaining 6
Paragraph 12 avers that the acts and conduct of Re
spondent alleged in paragraph 11 in the context of the
acts and conduct described above in paragraph 6 con
stituted failure to bargain in good faith with the Union
Finally the complaint alleges that the strike against Re
spondent was caused and has been prolonged by the
unfair labor practices of Respondent described above in
paragraphs 6 11 and 12
The Charging Party Union wrote two letters to Re
spondent in April The first (R Exh 2) dated April 5
requested a meeting with Respondent for the purpose of
negotiating a new collective bargaining agreement to re
place the one that was due to expire on July 1 The
second letter (R Exh 3) dated April 14 also recited the
expiration date of the collective bargaining agreement
and requested a meeting with Respondent no later than
May 14
The parties stipulated that bargaining sessions were
held on the following dates April 23 May 3 6 12 and
24 June 2 9 and 30 July 12 and 21 and September 15
The Union s principal spokesman during the negotia
lions was Business Agent Robert Elsholz He was assist
ed during the negotiations by Shop Steward Bruce
Olson a partsman in the employ of Respondent Re
spondent was represented by David Stnmling and
August (Auggie) Sommerfeld employees of Sequoia Em
ployers Council (SEC) which had been retained by
Frontier Dodge Executive Vice President Sosmsky in
April 7 Herbert Thorne a mediator in the employ of the
State of California attended the June 9 bargaining ses
sion and subsequent meetings
The first bargaining session was short and took place
at Respondent s place of business in Sosinsky s office
with him in attendance All subsequent meetings with
the possible exception of the last one 8 were held at the
Sundale Motor Lodge Unit membership meetings were
held at the union hall on June 30 and July 22 At the
June 30 meeting the membership voted to reject a corn
pany sponsored flat rate system for mechanics but
voted nevertheless not to strike A bargaining session
v as held in the evening of June 30 (the second one that
day) following the membership meeting at the union hall
and a number of employees attended along with Union
Representatives Elsholz and Olson and company repre
sentatives Strimling and Sommerfeld Thereafter the em
6 Par 11(c) of the complaint alleges direct dealing with employees in
violation of Sec 8(a)(1) and (5) Counsel for the General Counsel con
cedes in his brief that there is no evidence to support this allegation and
it is accordingly being dismissed
7 Elsholz testified It wasn t really established who would talk for
them but David Stnmling was the main spokesman
8 Strimling indicated that the September 15 meeting took place at a
place called the Western House presumably a place different from
Sundale
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees decided to try the flat rate system and the par
ties thereafter resumed negotiations (on July 12) 9 The
membership did vote to go on strike (6 to 1) later at the
July 22 membership meeting Some employees went on
strike and others did not 10 The strike was still in
progress at the time of the trial
The Union presented its proposal (in evidence as G C
Exh 3 and in the form of a one page document) at the
first bargaining session recommending
1 New Holidays language
2 New Sick Leave language
3 IAM Dental Plan
4 IAM Vision Care Plan
5 Increased Pension Plan contribution
6 Cost of Living adjustments
7 Payroll dates (for Parts Department Employ
ees)
8 Increase in wages (50 cents per hour in each of
the next succeeding years)
The Union s proposal was discussed at the first two or
three bargaining sessions The Company presented its
proposal (in evidence as G C Exh 4) either at the May
6 or May 12 meeting 11 The Company s proposal served
primarily as the basis of all discussions that followed
after it was presented 12
By July 12 the parties had agreed on nearly all sub
jects except union security and the flat rate system
which subjects were discussed at virtually every bargain
ing session 13
The principal witness for the General Counsel was
Robert Elsholz the Union s chief spokesman during the
1982 negotiations David Stnmling chief spokesman for
the Company was the principal defense witness A sum
mary of their testimony follows 14
Elsholz sad he was stunned at a 11 to 1 no strike vote on June
30 as the membership had voted 12 to none at the same meeting to reject
the flat rate plan which the Company had proposed for mechanics It put
him in kind of a bind because it was up to the company whether they
wanted to keep the negotiating or not Elsholz said He got in touch
with the Union s Grand Lodge vice president in Long Beach and was
told to try to get back into negotiations Elsholz went on to say
that it came back through the shop not by me that people were willing
to try the flat rate system
A nonstriking employee Ted Jackson who attended the June 30 mem
bership meeting and the bargaining session the same evening agreed that
employees had voted both against the Company s proposal and a strike
He also stated that the employees decided to give the flat rate system a
trial No vote was taken he said It was just an agreement mouth to
mouth
I ° Norris Jones Respondent s service manager testified that three or
four employees did not go on strike and that he hired about three men as
replacements within 3 or 4 days after the strike began
Elsholz thought the Company presented its proposal on May 6 but
the Company s negotiator Stnmling thought the Company s proposal
was not presented until May 12
12 The copy of G C Exh 4 in evidence was Elsholz copy and the
written notations thereon (e g no ok open ) are his
2 The Union s bargaining representative maintained that no seniority
provision was ever agreed to but I find otherwise relying on the more
credible testimony of Dave Stnmling the Company s negotiator
14 The General Counsel also called Shop Steward Olson and three
other employees of Respondent Wilburn Lee Dorman Roy Wayne
Nightengale and Leroy Robertson Jr The testimony of Dorman Night
engale and Robertson dealt primarily with the 8(a)(1) charges Respond
ent called General Manager Kevin Sosinsky Service Manager Jones
James Mattison (an insurance representative) the Company s two negoti
According to Robert Elsholz the (first) April 23 bar
gaining session was held at Respondent s place of busi
ness and was attended by Shop Steward Bruce Olson
General Manager Kevin Sosinsky Service Manager
Norris Jones and the Company s two bargaining repre
sentatives from Sequoia Employers Council August
Sommerfeld and Dave Stnmling The meeting which
was held in Sosinsky s office was a short haphazard
one with a lot of phone calls and other interruptions
It was decided that all later meetings would be held else
where and they were—at the Sundale Motor Lodge El
sholz presented at the first meeting the Union s proposal
(G C Exh 3) which the parties read through and briefly
discussed Sommerfeld according to Elsholz was ada
mantly opposed to a union security clause Sommerfeld
said he was also against the hourly rate of pay and inch
cated he would propose a flat rate or piecework rate El
sholz said he responded that there would be some prob
lems in negotiations if Sommerfeld were to propose
elimination of the union security clause
The same group except for Sosinsky met next on
May 3 and again reviewed the Union s proposal With
Stnmling speaking for the Company Elsholz stated that
the Company said no to every part of the [Union s] pro
posal Sommerfeld stated that at that time he felt for
the betterment of the people and everything else that it
should be an open shop Elsholz said his response was
that we weren t even going to discuss the union secun
ty clause
Elsholz stated that the flat rate of pay was discussed
at the second bargaining session as well as at the first
and every meeting Elsholz said he did not initially
totally understand the Company s wage flat rate pro
posal which was to apply only to mechanics but he
thought it involved the use of three different rate books
as follows
[T]hey have a rate for new cars they have a rate
for motor homes and heavy vehicles and they have
a rate for regular service work so there are three
different rates you go by
Elsholz said he asked the Company to present a formal
ized proposal and it did so at the next bargaining ses
mon held on May 6 in the form of a seven page draft of a
complete Agreement which had attached to it a
check off authorization form and a one page Schedule
A listing various classifications and rates of pay
Elsholz said he readily agreed to the minimum wage
scale language (art III) and the apprentices provision
(art IV) on May 6 He thought agreement was reached
on vacations (art VI with the Company paying under
its flat rate system so much per hour ) but something
further in writing was to be furnished by the Company
Elsholz was uncertain about what was said about sick
leave (art VII) but he said it was not approved
ating representatives Strimling and Sommerfeld and two employees Ted
Jackson and Donovan Higginbotham The General Counsel recalled
Olson as a rebuttal witness and Respondent recalled Sommerfeld as a
surrebuttal witness
FRONTIER DODGE

725
Elsholz testified that union security seniority and flat
rate were discussed on this occasion The biggest prob
lem with regard to the flat rate system Elshoz said was
that the parties never could come to any kind of agree
ment what books they were going to take the flat rate
out of Norns Jones maintained for the Company that
big bucks could be made Elsholz said but the Union s
position was in opposition to it
As for union security Elsholz stated
No the union security clause was never brought up
by the Union until after Auggie Sommerfeld said he
was adamantly against the union security clause
His feelings were the people in the shop should
have the choice
Elshoz agreed that the company representatives made
other proposals— I think it was agency shop and some
other proposal which I did not know about Elsholz
said nothing was ever written up to show him the differ
ence between what the Company was proposing and
what was in effect Said Elsholz
The 38 contracts I service in this area we have a
union security clause we do not have any other
kind
Elsholz said the Company wanted an open seniority
clause one that would keep the employees on proba
tion from day 1 He agreed that Strimlmg asked for
some contract language and the Union later provided it
he said
Elsholz said he agreed to State Mediator Herbert
Thorne meeting with the parties in June on June 9 he
thought because we weren t getting anywhere As he
recalled the meeting only old proposals were reviewed
At the June 30 morning meeting as Elshoz recalled it
the Company was maintaining that the Union had agreed
to a lot of' the Company s proposal and asked for fur
ther review of the Company s proposed contract Elsholz
said he then brought up the subject of union security and
asked Are you going to come through with this are
you going to stay with where you were at before and
they said we are going to stay where we were at no
union security
The main concern at that time Elsholz said he was
clarifying seniority He was not sure but Elshoz thought
the Union had presented its seniority proposal (G C
Exh 5) much earlier on June 9 he thought We made
some changes in seniority proposals but they never did
0 K them Elsholz said 15
Elsholz testified concerning the June 30 unit meeting
held at the union hall at which he reported to employees
on the status of negotiations and advised what the Corn
pany was proposing He said he was stunned that the
membership rejected the Company s proposal that day
following lengthy discussion of the flat rate system but
also voted not to strike Elsholz said he got in touch
15 I credit Strimling s more credible testimony that the Union s propos
al on seniority G C Exh 5 was not presented until later and that the
parties did ultimately agree as indicated on the Union s proposal itself as
modified in Elsholz hand Elsholz testimony is equivocal and inconsist
ent His affidavit indicates he submitted G C Exh 5 on July 21
with his Grand Lodge vice president in Long Beach and
then got the Company back into negotiations The word
was passed to the Company but not by him that the em
ployees were willing to try the flat rate system
Elsholz stated that he told company representatives at
a later meeting presumably on July 12 in response to
their inquiry what it would take to get a contract signed
as follows
[T]here were quite a few things we had to sort out
and one of them was the union security clause the
sernonty clause and the flat rate of pay was the big
hang up with the people the flat rate
The Company would not yield to union security clause
he said
It was kind of mutually agreed that we were at a
stalemate when the parties met again on July 21 El
sholz said He acknowledged that the Company made a
counterproposal on union security however He testi
fled
I think they discussed an agency shop and I told
them I didn t really understand that and they ex
plamed what an agency shop was and I told them
at that time that I wouldn t recommend it to the
people
Vacation pay was again discussed with Stnmling saying
then the Company would raise the sit down pay to $7
Seniority was discussed but he denied any agreement
was reached
Following the July 21 meeting Elshoz met with the
unit membership and explained status of negotiations as
to the flat rate of pay (noting that the Company had
raised the sit down pay and offered a little bit more
on motor homes) union security seniority and generally
highlighted the Company s proposed contract The
unit voted 7 to none to reject the Company s proposed
contract and voted 6 to 1 to strike which began the fol
lowing morning
The September 15 bargaining session was set up after a
phone conversation took place between Elsholz and
Stnmling According to Elsholz Stnmling agreed to
come to the meeting but indicated no agreement would
be reached because a decertification election had been
scheduled At the meeting itself seniority and union secu
nty were discussed but no agreement was reached on
either issue Elsholz was asked if employees might accept
the flat rate system and Elshoz replied that the mechan
les could not live with it the way it was 16
6 Elsholz impressed me as an uncertain and at times equivocal and
inconsistent witness On cross examination he agreed that there had been
agreement on the recognition clause and on other topics He was uncer
tam as to when subjects were discussed and when agreements were
reached He said he thought there had been no agreement on no strike
no lock out provision He had no recollection of the sick leave discus
sion Surprisingly Elsholz claimed there had been no discussion at the
bargaining table about Respondent s financial condition or its desire to
improve efficiency He agreed that different types of union secunty pro
visions were proposed and that none was acceptable to the Union He
also agreed that you could say that he tried to get Sosinsky to term'
Continued
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dave Strunhng who identified himself as a labor rela
lions representative testified that he met with General
Manager Sosinsky three or so times prior to the start of
negotiations on April 23 Subjects discussed included the
Company s financial condition and what proposals the
Company would want to make
Stnmling agreed that the first bargaining session was
brief and that the Union s proposal was discussed El
sholz stated at the start of the meeting according to
Stnmling that he supposed we were going to propose
an open shop Sommerfeld responded yes and I sup
pose you are going to propose a closed shop Elsholz
indicated he would not consider an open shop according
to Stnmling Strimling denied that Sommerfeld indicated
at the first meeting or at any other time that he was
adamantly or totally opposed to a union security
clause Strimling said he never uses the word adamant
ly or a word similar to it (Sommerfeld later testified
under cross examination that he had a personal convic
tion against compulsory unionism ) Strimling said he ex
planted at the first meeting that the Company had lost a
lot of money ( around $800 000 ) and that the Company
was thinking about cut backs and/or ways of making
money rather than raising our costs We talked about
possibly going on an incentive flat rate system for me
chanics and the need for more productivity Strimling
said Strimling stated that the Company agreed to the
Union s proposed language for holidays (Item 1) and in
dicated there would be no problem on Item 7 (change of
paydays for the parts department) although the book
keeper would need to be consulted However no agree
ments were reached as to Items 2 3 4 5 or 6 (sick
leave dental vision care pension and cost of living ad
justment) as they involved cost factors
On May 3 according to Stnmling the parties met and
discussed the Company s economic conditions and all
items involving cost factors—health and welfare dental
visual and pensions Agreement on holiday language
was reaffirmed and an agreement was reached on sick
leave (Item 2 with the Company not having to pay
when workmen s compensation and disability insurance
program did) The Company indicated it would propose
new plans for dental visual and health and welfare but
the Union wanted to keep JAM coverages The Compa
fly suggested an IRA type of plan on pensions and dele
ton of the cost of living factor The Company s new
flat rate system was referred to and explained as follows
[T]he books have a time alloted III just use an ex
ample a particular job is three hours and if the
man can do it for two and a half he is paid for two
and a half hours and still has half an hour to do an
other job so theoretically at the end of the day he
could produce ten hours a day and that the work
would be better quality because of comebacks they
would have to do a better job watch their work
much better take more pride in their work and
therefore it would be less burden on the company
nate the services of his bargaining representative SEC He said he went
to the Company s office and told Sosinsky that you don t want a stnke
and we don t want a strike and we could come to an agreement both
of us could agree to and live with
and that if it did come back they would have to
repair it again
The Union asked about pay for employees when there
was no work and the company side responded that it
would look into it Deletion of old language having
no application any longer was proposed by the Compa
fly but opposed by the Union
Union security was brought up again at the May 6
meeting and Elsholz again said it was unacceptable
Sommerfeld asked if the Union would consider a clause
similar to what Lockheed Aircraft had at one time
whereby
Those that were members upon signing of the
agreement or that those subsequently become mem
bers stay a member and those that weren t didn t
have to be
Elsholz said he would not consider it Elsholz also stated
that the flat rate system was not acceptable to the Union
Company representatives distributed a new health plan
(Plan 6d R Exh 11) which they proposed The Union
put the health plan on hold The Union also put the
Company s proposed IRA plan on hold with the
Union asking that the Company contribute more than the
$30 a month it had been offering The Company also
proposed deletion of the cost of living proposal at the
May 6 meeting The flat rate system was discussed fur
ther as Mr Elshoz didn t know how it worked [where
as] Mr Olson did The Company agreed to review its
flat rate system on the basis that a book used in perform
ing certain work (e g warranty work on motor homes)
did not allow sufficient time The Company also agreed
to modify its flat rate proposal so as to include a mini
mum guaranteed wage of $6 70 per hour
Stnmhng said the Company presented its written pro
posal (G C Exh 4) on May 12 and certain agreements
were reached Stnmling stated that agreements were
reached on article I section 2(b) under recognition arti
cle II hours of work for certain jobs article III mini
mum wage scale article IV apprentices article V holi
days (already agreed to although Saturdays had been in
advertently omitted from G C Exh 4) article VI vaca
tons article XII stewards and article XIII special re
quirements Stnmling stated that other articles were dis
cussed but were not agreed upon as follows article VII
health and welfare and sick leave article IX dental arti
cle X vision care and article XI pension In testifying
concerning this meeting Strimling indicated that other
articles were discussed and agreed to later on including
article VIII bereavement leave (grandfather and grand
mother added as being in immediate family with 3 addi
tional days without pay being given by the Company al
though the Union wanted to go from 3 paid days to 8)
article IV no strike no lockout article XV grievances
(with plaintiff' being given the right to pick an arbitra
tor from a panel of three rather than the employer
having the right to designate the arbitrator)
The flat rate system was discussed again on May 12
with the Company indicating that it should stick more
money into it on the basis that work on motor homes
FRONTIER DODGE 727
could take more time than what the book called for 17
The Company proposed the $6 70 minimum rate but of
fered no change in wages for nonmechanics
Stnmling testified that James Mattison attended the
next bargaining session held on May 24 and explained
the details of the Company s proposed health plan After
hearing the presentation the Union agreed to accept it
over its own health plan 18
Stnmling testified that he suggested at the May 24
meeting that a state mediator attend the next bargaining
session and help us iron out some of these things El
sholz said he saw no need for it however according
to Strimling
When the parties met again on June 2 Elsholz com
mented that the Company s health plan looked better
than what the Union had proposed Elsholz also indicat
ed that the IRA pension plan would be all right but
he wanted a bigger contribution from the Company The
Company offered to increase the amount of money (50
cents per hour to $9 75) to pay for work on motor
homes and raised the guaranteed wages from $6 70 to
$680
Stnmling said he brought up the union security at the
June 2 meeting (as he said he did at every bargaining ses
mon) but Elsholz stated that anything other than a
union security clause is a no no his exact words were
no no Maintenance of membership was brought up
and rejected Stnmling also asked if the Union would
consider a plan whereby the Union would have a vol
untary meeting on company time to solicit membership
but Elsholz would not consider it according to Striml
ing
State Conciliator [sic] Herbert Thorne met with the
parties at the June 9 meeting by agreement of the parties
Strimling offered at that meeting for the Company to
pay vacation pay to current employees at their present
rate of pay and $6 80 an hour to new employees El
sholz agreed to the former but raised the issue again
three or four more times until reminded (even by Shop
Steward Olson) that it had been settled According to
Strimling Elsholz wanted an impasse declared on union
security but later agreed to discuss other issues Elsholz
agreed to present a proposal on seniority at the next
meeting Agreement was reached on a no strike clause
and on pensions with the Company paying more money
The parties met in the morning of June 30 and at the
Union s request again in the evening (when several
members of the bargaining unit appeared and asked ques
tions)
At the July 12 bargaining session seniority was dis
cussed but without any agreement being reached The
Union failed to present any proposal on seniority The
issue of missing tools was clarified
On July 21 the parties met in the last bargaining ses
sion before employees went on strike Elsholz made a
1
" Strimling maintained that Olson was familiar with the manuals in
use under the fiat rate system Stnmling said warranty work was done
according to the Chrysler manual The Mitchell manual was to be used
predominantly however
8 Mattison an employee of the J D King Corporation and administra
tor of the Western Employers Trust Fund appeared and testified as a
witness for Respondent
proposal with respect to the flat rate system and Som
merfeld made a counterproposal ($11 an hour for war
ranty work $10 an hour on motor homes and a $7
hourly guarantee) Stnmling testified that the parties
agreed to implement the flat rate system at the July 21
meeting Stnmling said he stated that it was the Compa
ny s understanding that the wages and classifications
here were minimum and that the Employer could pay
over or they could receive more money as long as they
got their minimum their wages Elsholz agreed saying
He didn t care what they did as long as they got their
minimum for their time that they made their time for the
day or the week Elsholz presented the Union s propos
al on seniority and it was agreed to in principle—with
modifications even though not reduced in writing (G C
Exh 5) With respect to union security the Company of
fered to give the Union 1 hour s time to solicit member
ship Elsholz said he would not consider it according to
Strimling and offered no alternative
The last bargaining session was held on September 15
with Stnmling Sommerfeld Bob Lee ( from our asso
elation ) Elsholz Olson Bill Lopez a gentleman named
Crawford and Thorne in attendance Everything had
been agreed upon by that time he said except union
security clause or lack of it flat rate system the amount
of money for the flat rate system the amount of the
guarantee and an hourly wage for a lube man 19 The
Union presented a letter dated September 14 (R Exh
14) captioned FINAL PROPOSAL and stating
RE NEW COLLECTIVE BARGAINING
AGREEMENT THAT WAS IN EFFECT JUNE
30 1982 IN ITS ENTIRETY
COLLECTIVE BARGAINING AGREEMENT
TO BE OPEN JULY 1 1983 FOR WAGES
ONLY
COLLECTIVE BARGAINING AGREEMENT
TO OPEN JULY 1 1984 FOR WAGES ONLY
Stnmling inquired if everything agreed to during the ne
gotiations was out and Elsholz replied No no ev
erything we have agreed on is fine It was not ex
plamed however according to Strimling how the agree
ments already reached would be included in such final
proposal The Union caucused for over half an hour
at the end of which Lopez stated that it was over with
we were finished Stnmling said he stated at the meet
ing it might be improper to consummate anything any
agreement at this time because of representation ques
tions but we would be happy to consider anything and
come to an agreement on it
On cross examination Strimling agreed that Elsholz
was cooperative and an able negotiator Strimimg also
testified on cross examination that he explained during
negotiations why the Company was proposing an alter
native to the union secunty clause He asserted that such
a provision interfered with hiring of qualified people and
18 Apparently the length of the contract was never agreed on Strunl
mg said the Company wanted a 1 year contract and the Union wanted
one covering a 3 year period
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that many employees did not wish to maintain member
ship in the Union Also Sostnsky believed in employees
having a free choice as to whether they should join a
union or not 20 Strimling disagreed with the Union s
contention that the Company was proposing to keep em
ployees on endless probation by proposing deletion of
60 days from the provision dealing with judging of
employees qualifications (art I sec 3) According to
Stnmling the provision only came into play if there was
a reduction in force and seniority began from day
one With respect to the last bargaining session held on
September 15 Stnmling reaffirmed that he understood
that Elsholz in presenting the Union s final offer meant
that anything already agreed upon would be given effect
Stnmling denied that he would have refused to sign an
agreement on September 15 because of the pendency of
a decertification petition He indicated that the Company
would have executed an agreement if the parties had
reached an agreement even though he had admittedly
told Elsholz that it may not be proper to do so and
could be set aside
With respect to the bad faith bargaining charge the
General Counsel states
General Counsel s theory is that a coalescence of
many factors produced a violation in this case Re
spondent s insistence upon an open shop without
good and stated reasons its regressive proposals in
wages and fringe benefits seniority and selection of
an arbitrator its insistence upon its own health
dental vision and dental plans and all of this in
contrast with the Union s concessions including the
detested flat rate system within the context of So
sinsky s pre and post bargaining violations of Sec
tion 8(a)(1) revealing strong anti union views all
warrant a conclusion that Respondent embarked
from the beginning upon a course of conduct which
would frustrate bargaining and cause a strike 21
Such recital does not comport with my view of the
relevant credible facts that can be gleaned from the
record or my opinion of the legal consequences of Re
spondent s conduct
20 Sosinsky testified that he had met with SEC representatives before
negotiations began and that among his major concerns were employees
being able to remain neutral with respect to union membership and
holding the line on costs because of the extremely poor financial condi
ton of the Company His position on union security grew out of his ex
perience as a brewery worker As for the Company s financial condition
he said Frontier Dodge lost $698 000 in 1980—more than any other
Dodge dealer in the United States Under questioning of union counsel
Sosinsky acknowledged that two accounting systems had been set up
one for Kevin Sosinsky Dodge and another for Frontier Dodge whereby
the latter would be held responsible for carrying over bad debts repos
sessions this kind of thing Nevertheless I have no doubt about the fact
that Respondent continued to be in a serious financial condition when it
commenced negotiations in 1982 Sosmsky explained how he thought the
flat rate system of compensation for mechanics would improve the Corn
pany s financial condition
Sosmsky said he appeared at the first and the June 30 bargaining set
mons and did so each time only to give support to Sequoia
2 Speaking to this aspect of the case at the trial the General Coun
sel s attorney suggested that the illegality lay in the Employer s clinging
to its proposed change in the status quo with respect to union security
especially in light of the amount of movement that was coming from the
Union s side
Section 8(d) of the Act defines the duty to bargain col
lectively as the mutual obligation to meet at rea
sonable times and confer in good faith with respect to
wages hours and other terms and conditions of employ
ment or the negotiation of an agreement Such
obligation does not compel either party to agree to the
proposal or to make a concession NLRB v American In
surance Co 343 U S 395 (1952) The essential element in
the bargaining principle is the serious intent of the par
ties to reach a common ground Romo Paper Products
Corp 220 NLRB 519 (1975)
A determination of whether a respondent has met the
good faith bargaining standard requires consideration of
the totality of respondent s conduct MR & R Trucking
Co 178 NLRB 167 (1969) enfd in part 434 F 2d 689
(5th Cir 1970) NLRB v Insurance Agents 361 U S 477
(1960) Quoting from the court s decision in NLRB v Al
terman Transport Lines 587 F 2c1 212 221 (5th Cir 1979)
As we have observed before probably in few
other instances is the task of judging so difficult
than determining whether a party has fulfilled its
duty to enter into discussions with an open and
fair mind and a sincere purpose to find a basis of
agreement The truth is that objective stand
ards are generally either unavailable or unavailing
And conduct done at one time judicially ascertained
to manifest good faith may under other circum
stances be a mere pretense NLRB v Herman Sau
sage Co 5 Cir 1960 275 F 2d 229 231
The Supreme Court in American Insurance supra re
jected (as did the U S Court of Appeals for the Fifth
Circuit) the position of the Board that the employer in
the case had committed a per se violation by seeking to
bargain for a management functions clause ( listing mat
ters such as promotions discipline and work scheduling
as the responsibility of management and excluding such
matters from arbitrations ) The Court noted that the
Board considered such a clause a condition of employ
ment and that it had found illegal an employer s effort
to bargain for such a clause for the duration of a con
tract although the Board would permit an employer to
propose such a clause The Court rejected the Board s
reasoning Noting that the Act does not compel any
agreement whatsoever but imposes on labor and man
agement the mutual obligation to bargain collectively
(emphasis added) the Court stated
But the Board would forbid bargaining for any such
clause when the Union declines to accept the pro
posal even where the clause is offered as a counter
proposal to a Union demand for unlimited arbitra
tion Ignoring the nature of the Union s demand in
this case the Board takes the position that employ
ers subject to the Act must agree to include in any
labor agreement provisions establishing fixed stand
ards for work schedules or any other condition of
employment An employer would be permitted to
bargain as to the content of the standard so long as
he agrees to freeze a standard into a contract Bar
gaining for more flexible treatment of such matters
FRONTIER DODGE 729
would be denied employers even though the result
may be contrary to common collective bargaining
practice in the industry The Board was not em
powered so to disrupt collective bargaining prac
tices [343 U S 395 408]
In NLRB v Borg Warner 356 U S 342 (1958) the Su
preme Court made it clear that parties may bargain over
permissive subjects if they wish but the Act does not re
quire them to do so Mandatory subjects are a different
matter however Reading Sections 8(a)(5) and 8(d) to
gether the Court said
[T]hese provisions establish the - obligation of the
employer and the representative of its employees to
bargain with each other in good faith with respect
to wages hours and other terms and conditions of
employment The duty is limited to those
subjects and within that area neither party is legally
obligated to yield Labor Board v American Insur
ance Co 343 U S 395 As to other matters howev
er each party is free to bargain or not to bargain
and to agree or not to agree [346 U S at 349 1
In H K Porter Co v NLRB 397 U S 99 (1970) the
Supreme Court held that the Board did not have the
power to order an employer to agree to a union s pro
posal calling for a union dues checkoff—even though the
employer had violated the Act by repeatedly refusing to
bargain in good faith on the checkoff issue The compa
ny s refusal to bargain on the issue was based solely on
the ground that the company was not going to aid and
comfort the union The court of appeals had upheld the
Board s order directing the employer to agree to the
checkoff clause on the basis that it may be the only
means of assuring [the employer] no longer harbors an
illegal intent (389 F 2d 295 at 299 (D C Cir 1967))
The Supreme Court reversed After discussing the 1947
amendment to Section 8(d) of the Act (which added the
words but such obligation does not compel either party
to agree to a proposal or require the making of a conces
sion ) the Supreme Court stated
It is implicit in the entire structure of the Act that
the Board acts to oversee and referee the process of
collective bargaining leaving the results of the con
test to the bargaining strengths of the parties
In reaching its decision the Court of Appeals
relied extensively on the equally important policy of
the Act that workers rights to collective bargaining
are to be secured In this case the court apparently
felt that the employer was trying effectively to de
stroy the union by refusing to agree to what the
union may have considered its most important
demand Perhaps the court fearing that the parties
might resort to economic combat was also trying
to maintain the industrial peace that the Act is de
signed to further But the Act as presently drawn
does not contemplate that unions will always be
secure and able to achieve agreement even when
their economic position is weak nor that strikes and
lockouts will never result from a bargaining im
passe It cannot be said that the Act forbids an em
ployer or a union to rely ultimately on its economic
strength to try to secure what it cannot obtain
through bargaining It may well be true as the
Court of Appeals felt that the present remedial
powers of the Board are insufficiently broad to
cope with important labor problems But it is the
job of Congress not the Board or the courts to
decide when and if it is necessary to allow govern
mental review of proposals for collective bargaining
agreements and compulsory submission to one side s
demands The present Act does not envision such a
process [397 US 99 107-109]
In 1972 the Supreme Court in NLRB v Burns Security
Services 406 U S 272 287 (1972) after restating its hold
ing in H K Porter said
Preventing industrial strife is an important aim of
federal labor legislation but Congress has not
chosen to make the bargaining freedom of employ
ers and unions totally subordinate to this goal
When a bargaining impasse is reached strikes and
lockouts may occur This bargaining freedom means
both that parties need not make any concessions as
a result of Government compulsion and that they
are free from having contract provisions imposed
upon them against their will
And see US Gypsum Co 94 NLRB 112 (1951) amend
ed 97 NLRB 889 (1951) enfd in part and denied in part
206 F 2d 410 (5th Cir 1959)
The conduct of the Charging Party Union here must
also be taken into account Continental Nut Co 195
NLRB 841 (1972) A union violates Section 8(b)(1)(B)
and 8(b)(3) by restraining and coercing an employer in
the selection of a collective bargaining representative
Quoting from NLRB v Carpenters Local 964 447 F 2d
643 (2d Cir 1971)
We have held that the right of employees and the
corresponding right of employers see section
8(b)1(B) to choose whomever they wish to
represent them in formal labor negotiations is funda
mental to the statutory scheme General Electric
Co v NLRB 412 F 2d 512 516 (2d Cir 1969)
See also NLRB v Laborers Local 264 529 F 2d 778 (8th
Cir 1976) Truck Drivers Local 705 210 NLRB 210
(1974) Food & Commercial Workers Local 1439 262
NLRB 309 (1982)
The failure to bargain charge against the Respondent
Employer presupposes that it had no intention of reach
ing an agreement whereas the Charging Party Union was
willing to do so I am persuaded however that the
Union here had no intention of reaching an agreement
unless a union secunty clause was included
The parties had moved toward settlement during the
negotiations held between April 23 and July 21 By the
latter date union security and wages were the only sig
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nificant issues outstanding 22 It is true that the Union
had agreed to a number of proposals that the Company
had advanced but it can hardly be said that all the issues
settled were agreed on only because of concessions made
by the Union in the face of inflexible positions taken by
the Company The company made a number of conces
sions (e g on wages holidays bereavement leave pen
sions seniority) Indicative of Respondent s good faith
was its willingness to consider the Union s proposals as
well as its willingness to explain and if necessary
modify its own proposals True the Union had raised ob
jections to the flat rate system of compensation for me
chanics Elsholz had indicated that he did not fully un
derstand the proposed new method of compensation and
the Company indicated a willingness to give it more
study and possibly make changes It appeared in July
that the Union had accepted the concept but the Union s
final proposal presented on September 15 indicates the
flat rate system was being rejected by the Union There
was movement during negotiations from the Company in
the way of compensation and I am persuaded that the
failure to reach agreement did not occur only because of
the Company s failure to offer higher wages
With respect to union security the Company admit
tedly did not want to retain a union security clause in
the contract It proposed its deletion at the outset in
favor of an open shop But during the course of negotia
tons it offered different options with respect to union se
cunty and the Union would not consider any of them 23
Union security is a mandatory subject of bargaining
and an employer has a right to propose during negotia
tons that it be deleted from a new contract Such fact is
evident from the Supreme Court cases previously dis
cussed 24 It was the Union not Respondent which was
22 As previously indicated I generally credit Dave Stnmling Re
spondent s chief spokesman over Robert Elsholz the Union s spokesman
Strimling impressed me as a forthright witness and one having better
recall of the relevants events
Stnmling testified that the Company offered a proposal something
like the Lockheed Aircraft had at one time whereby those that were
members upon signing of the agreement or that those that subsequently
become members stay a member and those that weren t didn t have to
be Later at the June 2 bargaining session the Company proposed a
maintenance of membership plan that allowed a union representative to
meet with an employee on company time to solicit membership On July
21 the Company Increased the time for the Union to meet with an em
ployee to 1 hour The Union would not consider any of such proposals
24 And see Atlas Metal Parts Co v NLRB 660 F 2d 304 308 (7th Cir
1981) Quoting from the court s decision reversing the finding and order
on Bad Faith Bargaining
The board s emphasis on Atlas having agreed to union security
and checkoff in prior contracts suggests the view that those provi
sions thus became sacrosanct and not subject to negotiation in future
contracts A once in forever in concept however has no basis in
logic or law Indeed the board s position would encourage employ
ens to oppose union security checkoff and similar union desired pro
visions in initial contracts fearing that once in such provisions
would be forever in
An employer is entitled to advance a position sincerely held not
withstanding the employer s having taken a different position at an
earlier time NLRB v Pacific Grinding Wheel Co 572 F 2d 1343
1348 (9th Cm 1978) Union security and checkoff are mandatory
subjects of bargaining and [a] party is entitled to stand firm on
a position if he reasonably believes that it is fair and proper or that
he has sufficient bargaining strength to force agreement by the other
party [Citations omitted ]
inflexible and refused to discuss the issue The Union s
insistence that any contract negotiated must contain the
union security clause was the major factor leading to a
deadlock in the negotiations in my view Elsholz the
union bargaining representative frankly acknowledged
that he would not consider any change in the union secu
rity clause He stated that his response to Dave Strimling
was when the latter proposed an open shop at the May
3 bargaining session we weren t going to discuss the
union security clause Elsholz claimed on cross exami
nation that the Union considered everything the Compa
ny proposed but he then acknowledged that with re
spect to the options the Company offered on union secu
nty the consideration was limited to saying they are
not acceptable
In addition to taking a rigid position on union security
the Union maneuvered to circumvent and eliminate Re
spondent s bargaining representative Sequoia Employers
Council in violation of the Act In June 1982 Elsholz
came to Respondent s place of business and threatened to
strike unless Sosmsky would terminate SEC s services as
the Company s bargaining representative Both Sosinsky
and Jones Respondent s service manager testified credi
bly that Elsholz made such a threat and suggested So
sinsky and Elsholz sit down together and negotiate a
contract and thereby avert a strike Elsholz acknowl
edged that he went to see Sosinsky and told him that an
agreement could be reached and a strike averted if So
sinsky would call SEC and terminate its services
Two employees witnesses called by Respondent Ted
Jackson and Donvan Higginbotham testified credibly
concerning efforts of the Union to have Respondent ter
minate SEC s services
Two employee witnesses called by Respondent Ted
Jackson and Donovan Higginbotham testified credibly
concerning efforts of the Union to have Respondent ter
minate SEC s services
Jackson testified that Shop Steward Olson and Elsholz
had told employees at a meeting held in the union hall
that it would cost Sosinsky a lot of money if the negotia
tons were dragged out and Sosinsky would have to ter
minate the services of SEC Both Jackson and Higgin
botham stated that employees were instructed to attend
the bargaining session held in the evening of June 30 and
keep the meeting going so nothing would be resolved
Higginbotham recalled that Olson had asked Elsholz
during a meeting in the union hall sometime prior to
June 30 whether Elsholz had contacted Brett Speers (at
that time the principal owner of Respondent) about put
ting pressure on Kevin to get the Sequoia people out of
the picture
Testifying as a rebuttal witness Shop Steward Olson
acknowledged that employees attending the June 30
meeting at the union hall were informed of an open
bargaining session that was to be held later that evening
The employees were told according to Olson that they
were just there to watch He denied that any derogato
ry comments were made about the Sequoia Employers
Council I do not credit such denials however Olson
did acknowledge on cross examination that company
FRONTIER DODGE 731
representatives were not told that employees would be
attending the evening bargaining session.25
Speers was obviously contacted by the Union as he ar-
ranged for Sosinsky to come to a meeting with Speers
and union officials at the Oasis Restaurant sometime in
August (after the employees had gone on strike). So-
sinsky came to the meeting reluctantly, and only after
calling the Company's collective-bargaining representa-
tives, Strimling and Sommerfeld, and asking that they
meet him there. When Sosinsky arrived at the restaurant,
he saw that Speers' brother (Pat) and two union repre-
sentatives, Eric Hoffman of the Machinists Union and
Bob Scott of the Carpenters Union, were there. 26 So-
sinsky told Hoffman that the Union was circumventing
the Company's bargaining agent, but Hoffman responded
that "that was a bunch of bullshit." Hoffman stated that
"we could work this thing out." Hoffman referred to
SEC as "just a bunch of union busters" and turned to
Speer to say, "no one was supposed to know about this
goddamned meeting." When Strimling and Sommerfeld
arrived, Hoffman stated, "Get these sons-of-bitches out
of here, they are just a bunch of pncks." Hoffman con-
tinued, as Sosinsky credibly explained:
From that point on Mr. Hoffman was using every
four-letter word he could. He had been told by Pat
Speers to shut up, that there were families present
in the restaurant. He was very excited and he told
me that as long as Sequoia was there they would
strike forever, and that he was going to bury me.
He said he was going to put ads in the newspaper
telling people not to buy in my place, and he says,
we're going to do everything we can to run you out
of business. . . . 27
In early September Elsholz telephoned Sosinsky and,
after asking about Sosinsky's new baby and "how the
strike was doing," stated that he could get along with
Sosinsky but not "those guys," referring to Strimling and
Sommerfeld.
Also, for a period that began shortly after the Union
struck Respondent on July 22 and continued until Octo-
ber or later, Respondent utilized a picket sign that read:
"LET'S NEGOTIATE IN GOOD FAITH, GET RID
OF SEQUOIA EMPLOYERS' COUNCIL" (R. Exh.
9).28
I do not agree with the General Counsel that Re-
spondent's conduct involved "at best, some angry and ir-
relevant rhetoric" on the part of Hoffman or "at worst
• . . some kind of 'skip counsel' tactics . . . largely of an
25 Stnmling testified that Elsholz had requested that an evening session
be held on June 30 but had not informed him that employees would also
be attending Strimling stated that when he and Sommerfeld arrived that
evening Elsholz and Olson were there with 8 or 10 employees Questions
were posed during the meeting, he said, "mostly" by the employees
28 Hoffman's connection with the Charging Party Union is not in dis-
pute See his August 9 letter to the SEC (R Exh 12)
27 Both Strimling and Sommerfeld testified that on an earlier occasion
in 1982, prior to the time Sosinsky had employed them to represent the
Company, Hoffman had stated to them that he was going to make them
'famous'
28 The Union also used a picket sign that read, "Everyone Walks till
the Bossman Talks" and "On Strike by Machinists, Please Do Not Pa-
tronize" (R Exh 8)
academic nature." Contrary to the General Counsel's ar-
gument, the facts in Continental Nut Co., supra, were not
so dissimilar to those in the case at bar. The union there,
unlike the Charging Party here, undertook to repudiate a
number of agreements previously made and insisted that
the company sign an agreement written by the union.
But the union in Continental Nut, which threatened a
strike (and later struck at a critical time for the compa-
ny), also refused to discuss the company's proposal of a
maintenance-of-membership provision. The judge repeat-
ed the words of the union's negotiator in that case (195
NLRB 841 at 845):
"No, don't waste your time. Don't bother us with a
maintenance membership provision . . . we know
how to handle companies like Continental Nut."
Goldblatt [the negotiator] concluded with a threat
in vulgar terms to teach the Respondent a lesson
"when it comes to the processing season."
Thus, the Union's refusal to bargain in the case at bar,
as in Continental Nut, removed the possibility of negotia-
tion of an agreement and precluded the existence of a sit-
uation wherein Respondent's good faith could be
tested. 29
I find that Respondent did not refuse to bargain in
good faith with Union. I further find that the strike
which began on July 22, 1982, was neither caused nor
prolonged by any unfair practice of Respondent.
2. The 8(a)(1) charges
Paragraph 6 alleges Respondent, acting through Gen-
eral Manager and Executive Vice President Sosinsky,
violated Section 8(a)(1) of the Act by:
1. Requesting an employee in April to circulate a peti-
tion to decertify the Union as the collective-bargaining
representative (par. 6(a)).
2. Telling an employee in approximately April that Re-
spondent intended to get rid of the Union irrespective of
the desire of the employees (par. 6(b)).
3. Interrogating in April an employee concerning the
degree of employee support for the Union (par. 6(c)).
4. Telling an employee on or about July 23 that Re-
spondent intended to get rid of the Union and threatened
him with unspecified reprisals because of his support for
the Union (par 6(d)).
5. Telling an employee that in May or June that Re-
spondent would get rid of the Union even if it cost
$10,000 to do so (par. 6(f)).
6. Telling an employee on or about July 23 that Re-
spondent was engaged in "busting the Union." (Par.
6(g).)
Paragraph 6 (subpar. (e)) also alleges that Respondent
violated Section 8(a)(1) on or about July 23 when Serv-
29 Nor do I agree with the General Counsel that Mar-Len Cabinets,
243 NLRB 523 (1979), is applicable here In that case the union had
counterproposed an agency shop in response to the employer's proposal
to delete a union-security clause In any event, I am not persuaded on
this record, as the administrative judge was in Mar-Len, that Respondent
entered into negotiations with the preconceived thought that the Union
would never accept any dilution of its representative authority
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ice Manager Jones encouraged an employee to withdraw
from membership in the Union
a Paragraphs 6(a) (b) and (c)
Wilburn Lee Dorman testified that he had been em
ployed by Respondent as a mechanic for almost 10 years
He stated that on a Friday in early April Sosinsky Re
spondent s executive vice president and general manager
approached him while at work and asked to speak to
him According to Dorman Sosinsky asked Dorman to
have employees sign a petition to get the Union out
Dorman said Sosinsky stated that he really wanted to
get the petition signed because it would cost him $10 000
to get rid of the union Sosinsky also told
Dorman according to Dorman that the Company
would continue to pay the same wages if the workers
were to sign the petition Sosinsky wanted an answer
from Dorman by the following Tuesday Dorman said
Dorman indicated to Sosinsky that Sosinsky might be
stretching friendship a little far but would speak to the
guys Dorman said he approached other employees in
dividually and asked them if they would be willing to
get rid of the Union Dorman claimed he did not tell
other employees that Sosinsky had spoken to him about
a petition 30 The employees were opposed to getting rid
of the Union Dorman said
Dorman reported back to Sosinsky the following
Monday Sosinsky said he was sorry to hear the employ
ees were unwilling to get rid of the Union and he got
mad and walked off
Donovan Higginbotham a defense witness who was
hired by Respondent Service Manager Jones in Febru
ary testified that Dorman never contacted him about So
sinsky wanting to get rid of the Union 31
Sosinsky denied telling Dorman that it would cost
$10 000 to get rid of the Union and denied having any
conversation with Dorman about the Union
The General Counsel relies on the testimony of
Dorman as proof of the charges contained in subpara
graphs (a) (b) and (c) of paragraph 6 Even though
Dorman s transcribed testimony seems somewhat illogi
cal in part and not entirely consistent I credit his testi
mony as establishing the essential allegations of these
subparagraphs Dorman s reference to the $10 000 is a
little perplexing—i e He told me he really wanted to
get the petition signed because it would get rid of the
Union and that he didn t have $10 000 Dorman
claimed that he did not tell other employees that So
sinsky had asked him to speak to them yet he said he
told them Mr Sosinsky wanted to get rid of the
Union The fact that he did not know what a decertifi
3° Dorman said he did tell fellow employee Leroy Robertson of his
conversation with Sosinsky because Robertson had seen Sosinsky and
Dorman conversing Robertson testified that he did see Dorman and So
sinsky talking and that Dorman thereafter stated that Kevin was want
mg to get a petition around to see if we would get rid of the
Union
3 Ted Jackson another defense witness who said he was employed by
Respondent as a mechanic on June 1 and attended a union meeting at
which employees were urged to get rid of Sequoia Employers Council
Respondent s negotiating representative by dragging out the negotia
ttons stated that Dorman had a petition to consent to Kevin getting rid
of Sequoia Respondent s negotiating agent
cation petition was to say is of no significance I believe
and find Sosinsky communicated the message to
Dorman that he wanted the Union out as the bargaining
representative of the employees and that he desired Dor
man s help in that endeavor by circulating a petition
among the employees I also believe and find that So
sinsky later interrogated Dorman about how successful
Dorman had been in contacting his fellow employees
about getting rid of the Union Such statements and in
quiry on the part of Sosinsky were coercive and in viola
tion of the Act 32
b Paragraph 6(d)
Statements of Bruce Olson a striking employee obvi
ously provide the basis for this charge Olson testified
concerning a conversation he said he had with Sosinsky
and Service Manager Norris Jones around 7 a m on July
23 the day after the strike began Olson said he was on
the picket line in front of Respondent s premises and had
been engaged in a conversation with another striker
Leroy Robertson when Sosinsky and Jones approached
them Jones asked Olson according to Olson if he knew
it was a Federal offense to commandeer a common car
rier Olson said he thought Jones was kidding and testi
fled that he did not recall commandeering or driving any
trucks on the day before Asked what if anything So
sinsky said Olson replied
Kevin said that by God he was going to take and
run his shop the way he wanted to run it and he
was going to throw the Union out and was going to
have my goddamned ass that is exactly what he
said and away they went
Olson said Sosinsky appeared to be upset at the time
Jones denied having any conversation with Bruce
Olson about common carriers or Federal offenses on
July 23 or having any other conversation with Olson
that day Jones also denied hearing Sosinsky tell Olson
that day that Sosinsky was going to run his own shop
throw the Union out or have his ass
Sosinsky also denied making a statement on July 23 or
hearing a statement by another that day concerning a
Federal offense or common carriers Sosinsky acknowl
edged speaking to Olson that day and telling him that he
would have his ass He stated that Olson had stopped
people entering the service department on the previous
day and indicated he was not happy about it Quoting
from Sosinsky s direct testimony
I told him that he had better stay away from my
goddamned customers and he had better stay away
from the damned trucks that deliver parts to me
and if he ever called my family in the middle of the
32 Respondent argues that Sosinsky should be credited over Dorman
on the basis that Sosinsky had no motivation to get rid of the Union in
early April when the alleged conversations with Dorman took place It
is apparent however that Sosinsky was opposed to the Union as the
unit s bargaining representative and I can hardly conclude on this record
that such desire came into existence only with the commencement of ne
gotiations later in the month
FRONTIER DODGE 733
night and harass my wife and my daughter, that I'd
have his ass.
Olson's testimony concerning this July 23 incident is
more persuasive than Sosinsky's, and I therefore credit
Olson's account. Sosinsky did not deny that the confron-
tation between him and Olson occurred—only that he
made no threat with reference to getting rid of the
Union. Given the circumstances and Sosinsky's attitude
and frame of mind, I believe, and find, that Sosinsky did
make the challenged threat. The charge in paragraph
6(d) is duplicative of paragraph 6(b) of the complaint,
however, and no additional relief is appropriate.
c. Paragraph 6(e)
Roy Nightengale testified that he was on vacation
when the strike began and "showed up on the 24th, Sat-
urday." He said he returned home on July 23 and re-
ceived a telephone call from Norris Jones that afternoon
around 5 o'clock. After discussing the fact that the em-
ployees were on strike, Jones stated, according to Night-
engale, "We'd like you to come back to work, cross the
picket line, and I've got all the paperwork on my desk
that you can sign to withdraw from the Union." Jones
added that most positions had been filled and offered the
opinion that the Union could not refuse to reinstate him
at a later time
Jones denied that he telephoned Nightengale or any
other employee to request his return to work. Jones spe-
cifically denied asking Nightengale to resign from the
Union. Jones said Sommerfeld and Strimling of the SEC
had advised him not to have conversations with union
employees and to refer their questions to the SEC.
Nightengale's testimony to the effect that he received
the call from Jones and was encouraged to withdraw his
membership from the Union was credible—more than
Jones' denial. Accordingly, I find paragraph 6(e) sus-
tained.
d. Paragraph 6(.1)
Leroy Robertson, a striking employee, testified that at
an employee meeting Sosinsky stated that he was going
to try to get rid of the Union even if it would cost him
$100,000. Specifically, Robertson testified:
I think at one of the others [employee meetings] he
said something about he didn't care if it cost him
$100,000 to get rid of it if he was going to try to
get rid of it
Robertson was uncertain when the employee meeting
took place but thought it occurred around May—"prob-
ably in May, along in May sometime, the last part."33
Sosinsky denied telling employees that he would spend
$100,000 to get rid of a union or saying anything like
that. Sosinsky said that he tried to avoid talking to em-
ployees during negotiations at the suggestion of Sommer-
33 Robertson stated that another meeting took place around the same
time at which Sosinsky and Service Manager Jones appeared and dis-
cussed the Company's flat-rate system
feld in order to avoid being "entrapped" into saying
something that should not be said
This charge, which is duplicative of paragraph 6(b),
will be dismissed. I believe it unlikely that Sosinsky
would have made a statement of this kind at a meeting of
employees, especially after being counseled by Sommer-
feld about talking to employees during negotiations
Sommerfeld (along with Strimling, his colleague from
the Sequoia Employers' Council) was not, of course, em-
ployed by Sosinsky until April, but Robertson's testimo-
ny was somewhat vague as to what was said and when.
No other employee testified about Sosinsky making such
statements at an employee meeting, and two employees
who said they attended employee meetings, Ted Jackson
(not hired until June 1) and Donovan Higginbotham,
denied hearing them.34
e Paragraph 6(g)
Leroy Robertson also testified that he was present on
the picket line at Frontier Dodge with Bruce Olson one
day when Bruce Olson, another striker, introduced
Wiliam Lopez, grand lodge representative of the Union,
to Respondent's executive vice president, Kevin So-
sinsky. Robertson stated that Lopez inquired of Sosinsky
how things were going and Sosinsky replied, "busting
the union as usual."
Olson testified that he was on the picket line on an oc-
casion when Lopez and Sosinsky exchanged comments.
Olson said he heard none of the conversation, however,
except for the words "as usual" as he had turned and
started walking away.
Sosinsky denied telling Lopez that he was "busting the
union" or making any similar statement.
The alleged statement does not even appear to involve
a serious utterance. Interestingly, Lopez was not called
and questioned about the alleged statement. In any event,
I credit Sosinsky's denial of making the statement over
Robertson's claim that Sosinsky did so. Olson's testimo-
ny—that he remembered hearing "as usual"—is not cor-
roborative that the challenged statement was made. Para-
graph 6(g) will be dismissed.
Based on the foregoing, I make the following
CONCLUSIONS OF LAW
1. Respondent, Frontier Dodge, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Association of Machinists
and Aerospace Workers, AFL-CIO, District Lodge No.
115, Local Lodge 1528, is a labor organization within the
meaning of Section 2(5) of the Act.
34 Jackson started as a mechanic on June 1 and attended employee
meetings thereafter He recalled a specific employee meeting at which
Jones and Sosinsky attended and discussed the flat-rate system "Mostly
Mr Jones did the talking," Jackson said
Higginbotham, who was hired by Service Manager Jones in February
(who told him he had to Join the Union and did so even though he
"wasn't crazy about" it), attended employee meetings between April I
and July 22, when the strike began He also testified concerning a meet-
ing at which Sosinsky and Jones discussed the flat-rate system, a plan the
employees agreed to try even though it "upset" them
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 All mechanics frame and/or front and machine
men auto electricians parts department employees lu
bncators used car lot and parts pick up employees
guards and supervisors as defined in the Act constitute
an appropriate unit for the purpose of collective bargain
ing within the meaning of Section 9(b) of the Act
4 Respondent has interfered with restrained and co
erced employees in violation of Section 8(b)(1) by (a)
telling employees that it wanted the Union out as the
employees bargaining representative (b) by requesting
an employee to circulate a petition to decertify the
Union (c) by interrogating an employee concerning the
degree of employee support for the Union and by (d)
encouraging an employee to withdraw membership from
the Union
5 Respondent has not failed to bargain in good faith
and did not cause or prolong the strike which began on
July 22 1982 and remained at all times relevant herein
an economic strike
6 Respondent has not engaged in any other unfair
labor practice
As a remedy I shall recommend that Respondent
Frontier Dodge Inc cease and desist from engaging in
the unfair labor practices found and take certain affirma
tive action which will effectuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 35
ORDER
The Respondent Frontier Dodge Inc d/b/a Fireside
Dodge Modesto California or under any other name
its officers agents successors and assigns shall
1 Cease and desist from
(a) Telling an employee that it wants the Union out as
the employees bargaining representative
(b) Requesting an employee to circulate a petition to
decertify the Union
(c) Interrogating an employee concerning the degree
of employee support for the Union
(d) Encouraging an employee to withdraw member
ship from the Union
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Modesto California place of business
copies of the attached notice marked Appendix 36
Copies of the notice on forms provided by the Regional
Director for Region 32 after being signed by the Re
spondent s authorized representative shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered defaced or
covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
36 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
bonal Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees we want the Union
the International Association of Machinists and Aero
space Workers AFL-CIO District Lodge No 115
Local Lodge 1528 or any other labor organization out
as their collective bargaining representative
WE WILL NOT request employees to circulate a peti
tion seeking to decertify the Union
WE WILL NOT interrogate our employees or otherwise
inquire of them as to whether they support a union
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
FRONTIER DODGE INC