Graham Automotive, Inc, d/b/a Valley Honda

National Labor Relations Board - Board Decisions

Jul 28, 2006

347 N.L.R.B. 615 (N.L.R.B. 2006)

VALLEY HONDA
347 NLRB No. 59
615
Graham Automotive, Inc. d/b/a Valley Honda and
District Lodge 98, International Association of
Machinists and Aerospace Workers, AFL–CIO,
CLC. Case 6–CA–34581
July 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On February 8, 2006, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
On January 27, 2004, the Board certified District
Lodge 98, International Association of Machinists and
Aerospace Workers, AFL–CIO, CLC (the Union), as the
exclusive collective-bargaining representative of the Re-
spondent’s automotive service technicians and team
leaders at its Monroeville, Pennsylvania, automobile
dealership. The parties thereafter commenced negotia-
tions for a collective-bargaining agreement. The judge
found that the parties reached a complete agreement on
terms and conditions of employment and that the Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by refusing to execute a
written contract incorporating the agreed-upon terms.
The Respondent argued to the judge, and now argues
here, that its action was not unlawful because complete
agreement was never reached on four provisions: (1)
Union Seniority (art. 16); (2) Sickness and Accident
Benefits (art. 32); (3) Working on Personal Cars (art.
39); and (4) Alcoholism and Drug Abuse Program (art.
40). The judge rejected this contention. For the reasons
set out below, we also find the Respondent’s argument
without merit.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 We have modified the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
Excel Container, 325 NLRB 17 (1997), and Ferguson Electric Co., 335
NLRB 142 (2001), and to conform to standard remedial language. We
have substituted a new notice that reflects these changes.
It is well settled that an employer violates Section
8(a)(5) and (1) of the Act by refusing to execute a written
contract incorporating the terms of a collective-
bargaining agreement reached with the union represent-
ing its employees.3 A threshold question is whether the
parties in fact “had a ‘meeting of the minds’ on all sub-
stantive issues.”4 As fully explained below, we find that
the parties had reached a meeting of the minds on the
above four provisions by January 24, 2005,5 at the latest.
There was, therefore, a complete agreement by that date.
Consequently, the Respondent violated Section 8(a)(5)
when it refused the Union’s January 31 request to exe-
cute a written contract embodying the parties’ agree-
ment.6
(1) Union Seniority: This article of the agreement set
out the Respondent’s seniority policies applicable to lay-
offs and promotions, among other things. In the Union’s
initial proposal, a key paragraph of the article provided:
The principle of seniority shall govern and control in
all cases of promotion within the bargaining unit, trans-
fer, decrease or increase of the working force as well as
preference in assignment to shift work and choice of
vacation period.7
The judge found that agreement was reached on this article
on November 17, 2004, when the Union agreed to the Re-
spondent’s proposal to add the phrase “with the ability to do
the job” after the word “seniority” in the paragraph.
The judge’s finding is supported by the evidence. On
November 24, 2004, Union Business Representative
Todd Fichera faxed what was then “the latest version of
the contract” to the Respondent’s attorney, John
O’Connell. This version incorporated the changes to the

3 H. J. Heinz Co. v. NLRB, 311 U.S. 514, 525, 526 (1941); Busch-
man Co., 334 NLRB 441 (2001).
4 Cross Island Telephone Services, 330 NLRB 19, 23–24 (1999).
5 All dates hereafter refer to 2005 unless otherwise indicated.
6 The judge properly found that the collective-bargaining agreement
should be given retroactive effect to January 7, the effective date speci-
fied in art. 41 of the agreement (GC Exh. 15). See, e.g., Provident
Nursing Home, 345 NLRB 581, 583 (2005) (employer that refused to
execute contract ordered to make agreement retroactive to effective
date specified in agreement); Ethan Enterprises, 342 NLRB 129, 135
(2004) (same), enfd. mem. 154 Fed. Appx. 23 (9th Cir. 2005).
We also agree with the judge that the decertification petition filed
with the Region on February 9 did not excuse the Respondent’s failure
to execute the contract. See, e.g., Flying Dutchman Park, Inc., 329
NLRB 414, 417 (1999) (employer’s assertion of good-faith doubt about
incumbent union’s continued majority status, which was based on
events—including filing of decertification petition—occurring after
final agreement on substantive terms of collective-bargaining agree-
ment had been reached, not a defense to a refusal to execute an agreed-
upon contract); Dresser Industries, 264 NLRB 1088, 1089 (1982)
(mere filing of decertification petition does not permit an employer to
refuse to execute contract with incumbent union).
7 GC Exh. 6b.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD616
union-seniority provision made at the November 17,
2004 negotiating session, so that the above paragraph
read as follows:
The principle of seniority with the ability to do the job
shall govern and control in all cases of promotion
within the bargaining unit, decrease or increase of the
working force.8
This paragraph, and the rest of the article, remained un-
changed in the version of the agreement that was ratified by
the Union’s members on January 7,9 and in the final cor-
rected agreement that Fichera faxed to O’Connell on Janu-
ary 28.10 Thus, we find that the parties had reached agree-
ment on the union-seniority provision.11
(2) Sickness and Accident Benefits: This provision set
out the changing percentage of base pay that an em-
ployee would receive after being out sick or disabled for
a specified number of days. On November 17, 2004,
Respondent’s attorney O’Connell gave the Union the
choice of the Union’s proposed plan or the Respondent’s
current plan. O’Connell said that he would later provide
the Union with the specific pay and days-absent figures
applicable to the Respondent’s plan. The agreement
voted on by the membership at the January 7 ratification
meeting specified “the current company plan” with the
handwritten notation “list increments.”12 Union Business
Representative Fichera testified that the members “rati-
fied the company’s current plan pending the language
from Mr. O’Connell.”13 O’Connell faxed this informa-
tion to Fichera on January 24,14 and the same information
was incorporated into the agreement that was presented
to the Respondent on January 31.15 Thus, we find that
complete agreement was reached on this provision no
later than January 24, when O’Connell provided the pay
and days-absent figures for the Company’s plan.
(3) Personal Cars: This article set out a policy govern-
ing employees’ use of the Respondent’s facility to work
on their own cars. Union Business Representative
Fichera testified without contradiction that the Respon-

8 GC Exh. 10.
9 GC Exh. 11.
10 GC Exh. 14. The “corrections” were two typographical errors
noted by O’Connell.
11 Fichera also testified that agreement was reached on this provision
at the last negotiating session on November 17, 2004, when the Union
dropped its demand for a union-security clause in exchange for “Union
Seniority” and agreed to the Respondent’s proposed “Management
Rights” clause. This three-article deal resulted in the final agreement
containing an open-shop provision (Tr. 82).
12 GC Exh. 11. There is no dispute that the “increments” notation
referred to the pay and days-absent figures promised by O’Connell.
13 Tr. 71.
14 GC Exh. 8.
15 GC Exh. 15.
dent presented this proposal.16 The language at issue
specified whom employees should contact with questions
about the policy. Fichera’s November 24, 2004 fax to
O’Connell of the latest version of the contract included
the following provision: “If you have any questions
about this policy or would like an exception to this pol-
icy, see Tom or Dave.”17 At the Union’s January 7 rati-
fication meeting, the membership stated that job titles
should be used instead of names, in the event that Tom
or Dale did not remain in those positions. A handwritten
notation on the copy of the contract used at the ratifica-
tion meeting shows “DALE” and “Position.”18 As found
by the judge, the Respondent, too, wished to make this
change in language. Accordingly, on January 24,
O’Connell sent a fax to Fichera that included this
change, so that the final language read: “If you have any
questions about this policy or would like an exception to
this policy, see the service manager or parts manager.”19
Inasmuch as the substitution of job titles for the indi-
viduals’ names was a nonsubstantive change, it appears
that the parties actually had reached agreement on this
provision by November 24, 2004. Certainly, though,
they reached agreement no later than January 24, when
O’Connell faxed the final language to the Union.
(4) Alcoholism and Drug Abuse Programs: This article
of the agreement set out the joint company-union alcohol
and drug dependency program. It enumerated the poli-
cies behind the program, the various stages of the pro-
gram, and the mechanics of its operation. The paragraph
at issue here concerned the program’s compliance with
Federal regulations. The “latest version” of the contract,
which Fichera faxed to O’Connell on November 24,
2004, provided: “Any such program must comply with
the regulations promulgated by the Department of Health
and Human Services.”20 The version of the agreement
voted on at the ratification meeting on January 7 had the
following handwritten notation at the end of that same
sentence: “+ or D.O.T.”21 On January 24, O’Connell
faxed to Union Business Representative Fichera a ver-
sion of the agreement that incorporated this “and/or”
language, providing:
The Company will institute a drug and alcohol testing
program which will be in compliance with the regula-
tions promulgated by the Department of Health and

16 Tr. 65.
17 GC Exh. 10. Although the agreement specified the name “Dave,”
it is undisputed that it should have been “Dale.”
18 GC Exh. 11.
19 GC Exh. 8.
20 GC Exh. 10.
21 GC Exh. 11.
VALLEY HONDA 617
Human Services and/or the United States Department
of Transportation.”22
This same language remained unchanged in the agreement
that Fichera presented to the Respondent for its signature.23
Thus, we find that complete agreement was reached on this
provision no later than January 24, when O’Connell incor-
porated the Union’s “and/or” modification.
In sum, the evidence establishes that the parties
reached a “meeting of the minds” on all substantive
terms no later than January 24.24 The Respondent thus
violated Section 8(a)(5) and (1) of the Act when it re-
fused to execute the written contract presented to it by
the Union on January 31.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Graham Automotive, Inc., d/b/a Valley
Honda, Monroeville, Pennsylvania, its officers, agents,
successors, and assigns shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith by re-
fusing to execute the collective-bargaining agreement
agreed upon with District Lodge 98, International Asso-
ciation of Machinists and Aerospace Workers, AFL–
CIO, CLC (the Union) and forwarded to the Respondent
on or about January 31, 2005. The Union is the exclu-
sive collective-bargaining representative of all employ-
ees in the following unit:
All full-time and regular part-time automotive service
technicians and team leaders employed by the Em-
ployer at its Monroeville, Pennsylvania facility; exclud-
ing office clerical employees and guards, professional
employees and supervisors as defined in the Act, and
all other employees.
(b) In any like or related manner interfering with, re-
straining, or coercing its 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.

22 GC Exh. 8.
23 GC Exh. 15.
24 Although Chairman Battista agrees with the judge and his col-
leagues that the Respondent violated Sec. 8(a)(5) by refusing to execute
the agreement that was presented to it on January 31, he finds that a
final agreement was reached no later than January 28. It was on Janu-
ary 28 that all of the negotiated provisions were incorporated into a
unified document and Respondent’s counsel informed the Union that,
except for a couple of typographical errors (about which there was no
dispute), everything in that document was correct. Since the effective
date of the contract was January 7, the difference between the Chair-
man’s view and that of his colleagues is without remedial significance.
(a) Forthwith, sign the collective-bargaining agreement
agreed upon with the Union and forwarded to the Re-
spondent on or about January 31, 2005.
(b) On the execution of the agreement, give effect to
its provisions retroactive to January 7, 2005, and make
its employees whole, with interest, for any loss of earn-
ings and other benefits they may have suffered by reason
of Respondent’s failure to sign the agreement, as set
forth in the remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility and place of business in Monroeville, Penn-
sylvania, copies of the attached notice marked “Appen-
dix.”25 Copies of the notice, on forms provided by the
Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or if it has closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since January 31, 2005.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

25 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-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD618
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with respect to wages,
hours, and other terms and conditions of employment by
refusing to execute the collective-bargaining agreement
agreed upon and provided to us by District Lodge 98,
International Association of Machinists and Aerospace
Workers, AFL–CIO, CLC (the Union) on or about Janu-
ary 31, 2005. The Union is the exclusive bargaining
representative of the following unit:
All full-time and regular part-time automotive service
technicians and team leaders employed us at our Mon-
roeville, Pennsylvania facility; excluding office clerical
employees and guards, professional employees and su-
pervisors as defined in the Act, and all other employ-
ees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
as set forth above.
WE WILL execute the agreed-upon collective-bargain-
ing agreement, and WE WILL give effect to that agreement
retroactive to January 7, 2005.
WE WILL make you whole, with interest, for any loss
of earnings and other benefits you may have suffered as
a result of our refusal to execute the agreement.
GRAHAM AUTOMOTIVE, INC., D/B/A VALLEY HONDA
Gerald McKinney, Esq., for the General Counsel.
John M. O’Connell, Jr., Esq. (O’Connell & Silvis, LLP), of
Greensburg, Pennsylvania, for the Respondent.
Todd Fichera, Business Representative, of Pittsburgh, Pennsyl-
vania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On March
15, 2005, a charge in Case 6–CA–34581, was filed against
Graham Automotive, Inc. d/b/a Valley Honda (the Respon-
dent), by District Lodge 98, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO, CLC (the Union).1
On April 20, 2005 the National Labor Relations Board, by
the Regional Director for Region 6, issued a complaint, which
as amended at the hearing, alleges that Respondent violated
Section 8(a)(1) and (5) and 8(d) of the National Labor Rela-
tions Act (the Act), when it failed and refused the Union’s re-
quest to execute the written contract containing the agreement
on terms and conditions of employment agreed to by Respon-
dent and the Union.
Respondent filed an answer in which it denied it violated the
Act in any way claiming that complete agreement on terms and
conditions of employment had not been reached between Re-
spondent and the Union and because a decertification petition
has been filed by a number of employees.
A hearing was held before me in Pittsburgh, Pennsylvania,
on November 1, 2005.
Upon the entire record in this case, to include posthearing
briefs submitted by counsel for the General Counsel and coun-
sel for Respondent, and giving due regard to the testimony of
the witnesses and their demeanor, I make the following
I. FINDINGS OF FACT
At all material times, Respondent, a Pennsylvania corpora-
tion with an office and place of business in Monroeville, Penn-
sylvania (the Respondent’s facility), has been an automobile
dealership engaged in the retail sale and service of new and
used automobiles.
During the 12-month period ending December 31, 2004, Re-
spondent, in conducting its business operations described
above, derived gross revenues in excess of $500,000.
During the 12-month period ending February 28, 2005, Re-
spondent, in conducting its business operations described
above, purchased and received at its Monroeville, Pennsyl-
vania, facility goods valued in excess of $50,000 directly from
points located outside the Commonwealth of Pennsylvania.
Respondent admits and I find that at all material times, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The following employees of Respondent (the unit), consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time automotive service techni-
cians and team leaders employed by the Employer at its Mon-
roeville, Pennsylvania, facility; excluding office clerical em-

1 Formerly District Lodge 83 until December 31, 2004. On January
1, 2005, District 83 merged with District Lodge 98 and became District
Lodge 98.
VALLEY HONDA 619
ployees and guards, professional employees and supervisors
as defined in the Act, and all other employees.
On January 16, 2004, a majority of the employees in the unit
designated and selected the Union as their representative for the
purposes of collective bargaining with Respondent in a Board-
conducted election in Case 6–RC–12294.
On January 27, 2004, the Union was certified as the exclu-
sive collective-bargaining representative of the unit.
At all times since January 27, 2004, based on Section 9(a) of
the Act, the Union has been exclusive collective-bargaining
representative of the unit. The Union enjoyed a 1-year period
from January 27, 2004 to January 27, 2005 when it had an irre-
buttable presumption of majority support among the employees
in the unit described above.
The Union and Respondent began negotiations for a first
contract in early 2004. The parties had 11 face-to-face negotiat-
ing sessions beginning on February 24, 2004 and ending on
November 17, 2004.2
The union negotiating team consisted of Union Business
Representative Todd Fichera and two employees in the unit,
Randall Campana and James Mendenhall. Respondent’s nego-
tiating team consisted of Respondent’s owner, James Graham,
and attorneys John M. O’Connell, Jr., and James Silvis al-
though Silvis was not at every negotiating session.
Fichera testified that the parties had reached a tentative
agreement on November 17, 2004 and that he told Respondent
he would take the contract back to the members for a ratifica-
tion vote but would not recommend it because the agreement
did not contain a union-security clause but instead provided for
an open shop.
On January 7, 2005 the union members voted to ratify the
agreement and Fichera so advised John O’Connell, Respon-
dent’s attorney and a member of Respondent’s negotiating
team.
The General Counsel and Union contend that complete
agreement on terms and conditions of employment was reached
by Respondent and the Union. The Union typed up a contract
and it was presented to Respondent for execution on January
31, 2005 after being signed by the Union.
Respondent refused to sign the contract claiming that com-
plete agreement had not been reached on terms and conditions
of employment and that Respondent should not execute the
agreement, even if complete agreement had been reached, be-
cause a decertification petition had been filed by some employ-
ees seeking to decertify the Union.
Section 8(a)(5) of the Act provides as follows “It shall be an
unfair labor practice for an employer—(5) to refuse to bargain
collectively with the representatives of his employees, subject
to the provisions of section 9(a). . . . ”
Section 8(d) of the Act provides, in part, as follows:
(d) [Obligation to bargain collectively] For the purposes
of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the representative

2 The parties stipulated that they met in 2004 on the following dates,
i.e., February 24, March 10, March 26, April 14, May 20, July 14,
August 18, September 15, October 13, October 25, and November 17.
of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agree-
ment or any question arising thereunder, and the execution
of a written contract incorporating any agreement reached
if requested by either party, but such obligation does not
compel either party to agree to a proposal or require the
making of a concession. . . . [Emphasis added.]
The Union presented to Respondent at the first negotiating
session a copy of a complete contract from which the parties
began their negotiations eventually agreeing to a contract that
had a term of approximately 17 months from January 7, 2005
to May 31, 2006.
I find that complete agreement was reached by the parties on
the terms and conditions of employment.
Respondent argues that agreement was not reached on 4 sub-
jects:
1. Article 32.1 sickness and accident benefits
2. Article 39.2(5) policy regarding employees working on
their own cars.
3. Article 40.9 Drug and Alcohol Policy
4. Article 16 Union Seniority.
I conclude that the parties did reach complete agreement on
terms and conditions of employment. I credit the testimony of
Todd Fichera and Mary Lou Kanonik, who is a secretary to
Todd Fichera. I do not credit James Graham.
I find that Respondent falsely claims that agreement wasn’t
reached to support its failure to execute the written agreement
presented to it by the Union for signature on January 31, 2005.
The real reason Respondent didn’t sign the contract, I find, was
that it learned after complete agreement was reached that some
of its employees in the certified unit were petitioning the Board
to decertify the Union.
In Dresser Industries, 264 NLRB 1088 (1982), the Board
held that “the filing of a decertification petition, standing alone,
does not provide a reasonable ground for an employer to doubt
the majority status of a union.” See also Champ Corp., 291
NLRB 803 (1988); Allied Industrial Workers v. NLRB, 476
F.2d 868, 881–882 (D.C. Cir. 1973). It follows, that a with-
drawal of recognition or a suspension of the employer’s ongo-
ing obligation to bargain in good faith is not privileged on that
ground. See, e.g., Lee Lumber & Building Material, 306 NLRB
408 (1992), and RCA Del Caribe, Inc., 262 NLRB 963 (1982).
The decertification petition filed with the Region on Febru-
ary 9, 2005, does not excuse an employer from bargaining in
good faith and bargaining in good faith includes the execution,
if requested, of a written contract embodying the terms of the
agreement. In the instant case if Respondent violated the Act by
not executing the agreement then the failure to have a signed
contract will bar the processing of the decertification petition.
Employee William Bonney had himself and two other employ-
ees sign an informal petition to decertify the Union typed up by
Bonney’s wife and dated January 28, 2005. The Region then
sent Bonney a formal decertification petition which Bonvey
signed and which was dated February 9, 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD620
B. Discussion
I will address each of the four areas where Respondent
claimed there was no agreement reached.
1. Article 32.1 Sickness and Accident Benefits
On November 17, 2004, which was the last face-to-face ne-
gotiating session, Respondent and the Union agreed that the
employees could have either the union-proposed sickness and
accident plan or the then current company plan. At a ratifica-
tion meeting on January 7, 2005 the employees voted and ac-
cepted the current company sickness and accident plan as well
voting to ratify the contract.
John O’Connell was advised of this and sent by fax to the
Union on January 24, 2005, a copy of the current company
sickness and accident benefit plan and the Union incorporated
it into the contract they presented to Respondent on January 31,
2005 for signature.
The agreed-upon article 32.1 read as follows:
ARTICLE 32—SICK AND ACCIDENT BENEFITS
32.1 Sick and accident benefits will be payable to an em-
ployee under the current company plan: Once you have
worked one (1) year, you are covered by our short term dis-
ability compensation program. The program will pay you the
following percentage of your base pay (see vacation pay for
calculation of base pay) when you cannot work:
The first working day absent: no payment
The second working day absent: 25% of base rate
The third working day absent: 50% of base rate
The fourth working day absent: 75% of base rate
The fifth working day absent: 100% of base rate
The sixth through 25th: 100% of base rate
You are eligible to use this program more than once
per year, however the maximum days of coverage is 25
days per calendar year. The maximum coverage for one
incident of disability is also 25 days even if it extends
from one year to another. You must provide medical in-
formation from your doctor showing that you are unable to
work to be eligible for this benefit. If the reason that you
cannot work is covered by workman’s compensation, you
may be eligible for other disability coverage. You are not
eligible for both workman’s compensation and this cover-
age at the same time.”
2. Article 39.2 Sub 5 Working on Personal Cars
The policy proposed was to the effect that questions about
the policy or requests for exceptions were to be addressed to
Tom or Dale. Actually the proposal said Tom or Dave but
Dave’s name is really Dale. Respondent wanted to substitute
the position of service manager and parts manager for the
names Tom and Dale on the theory that there may be turnover
in those positions. Respondent faxed this proposal to the Union
on January 24, 2005 which the Union incorporated into the
written contract.
The final agreement on Article 39 was as follows:
ARTICLE 39—WORKING ON PERSONAL CARS
39.1 The Company shall maintain the current policy of em-
ployees working on their own car.
39.2 The Company policy for working on your car after hours
is:
1. You can work on your own car or any car in your
household after hours. (You are not allowed to work on
friends’ cars, etc., for liability reasons.)
2. All work must be done while the shop is open. For
example, if the other team is working until 7:00 p.m. and
you were off at 4:30 pm., you could work from 4:30 p.m.
until 7:00 p.m. This is for safety reasons. We do not want
someone working alone or when there is not a Service
Manager on site.
3. You must have a repair order for the car. See any
Service Advisor for an order.
4. Whatever you do must not interfere with normal
business. You must work around any technicians on the
clock.
5. If you have any questions about this policy or would
like an exception to this policy, see the service manager or
parts manager.”
3. Article 40.9 Alcoholism and Drug Abuse Program
The parties agreed back on October 13, 2004 on an alcohol
and drug abuse program. It was article 40 and contained 10
subparts.
Respondent had a concern only with article 40.9, which pro-
vided as follows “The Company shall not implement any drug
or alcohol testing program without first negotiating with the
Union. Any such program must comply with the regulations
promulgated by the Department of Health and Human Ser-
vices.”
Respondent’s proposal on article 40.9 was faxed to the Un-
ion on January 24, 2005 and incorporated by the Union into the
contract the Union presented to Respondent for execution on
January 31, 2005. It provided as follows: “The Company will
institute a drug and alcohol testing program which will be in
compliance with the regulations promulgated by the Depart-
ment of Health and Human Resources and/or the United States
Department of Transportation.”
Article 40, in its entirety, provided as follows:
ARTICLE 40—ALCOHOLISM AND DRUG
ABUSE PROGRAMS
JOINT COMPANY-UNION ALCOHOL AND
DRUG DEPENDENCY PROGRAM
In order to assist employees afflicted with alcohol or
drug dependency and to eliminate the safety risks which
result from alcohol and drug abuse, the Company and the
Union establish the following Joint Company-Union Al-
cohol and Drug Dependency Program:
40.1 The following are basic essentials for an effective alco-
hol and drug dependency program:
VALLEY HONDA 621
1. Participation in the program by an individual em-
ployee must be voluntary and will be kept confidential to
preserve the employee’s privacy.
2. Effectiveness of the program is directly dependent
upon the degree to which the employee affirmatively
seeks such voluntary participation.
3. Employees shall not be subject to Company discipline
for voluntarily acknowledging a drug of alcohol depend-
ency and seeking assistance. However, the Company’s
right to discipline an employee for unsatisfactory per-
formance or attendance is not diminished or modified in
any way by the fact that the employee may have an al-
cohol or drug problem. Disciplinary action for unsatis-
factory performance or attendance may be held in abey-
ance during the employee’s cooperative participation in
the program, provided no further performance or atten-
dance problems occur, and provided further that the
Company will not discriminate in its decisions to defer
imposition of discipline.
40.2 The program is divided into the following stages:
1. Identification
2. Evaluation
3. Treatment
4. Return to Work.
40.3 Identification
1. Identification of an employee as having an alcohol or
drug problem which interferes with job performance or
attendance can occur in several ways:
(1) The individual employee acknowledges the
problem and so advises a Company or Union repre-
sentative.
(2) Company’s management or Union representa-
tives become aware of the employee’s performance
or attendance problems and have some reason to be-
lieve the problems are alcohol or drug related. The
belief must be based upon specific personal observa-
tions regarding the employee’s appearance, behavior,
speech or breath odor. Those observations shall be
reduced to writing by the management or Union rep-
resentative within twenty-four (24) hours of the be-
havior observed.
2. At this stage, a brief counseling session attended by the
employee, his/her supervisor and, if requested by the em-
ployee, his/her Union representative, should be arranged and
the following items covered: (If the employees so desires, a
separate, private counseling session with his/her Union repre-
sentative will be afforded prior to the Union representative’s
participation in the supervisor’s counseling session with the
employee.)
(1) The employee shall have the opportunity to
provide alternate (non drug or alcohol related) expla-
nations for the observed behavior.
(2) The program shall be clearly explained to the
employee.
(3) The facts that participation is purely voluntary
and will be kept confidential should be emphasized.
(4) It should be stressed that the extent of the em-
ployee’s alcohol or drug problem, if any, has not yet
been determined.
(5) The employee should be advised that normal
disciplinary action appropriate for his/her job perform-
ance or attendance problems may be held in abeyance
so long as he/she cooperatively participates in the pro-
gram, provided no further performance or attendance
problems occur.
(6) The session will conclude by advising the em-
ployee that, if agreeable, an appointment will be ar-
ranged with the Company Medical Department for a
medical evaluation of the problem.
40.4 Evaluation
1. Because alcohol and drug problems vary considera-
bly (their causes are innumerable, they may be temporary
or of long duration, they may be acute or chronic, they
may or may not involve serious physical deterioration), it
is imperative that the scope of the employee’s problem
must be medically evaluated at the outset.
2. At the appointment with the Company Medical De-
partment, the employee will be advised that:
(1) Evaluation of his/her alcohol or drug problem can be
conducted by his/her selection of one of the following:
(1) Company Medical Department.
(2) Any one of a list of outside community re-
source organizations mutually agreed upon by the
Company and the Union.
(3) His/her personal selection of a medical expert in
the field who is satisfactory to the Company and the Un-
ion.
(2) The result of the evaluation will become part of the em-
ployee’s Company medical record, will be maintained in con-
fidential files separate from other personnel records, and will
be provided to the employee and, if agreeable to him/her, to
the Union.
(3) If the evaluation concludes that the employee does not
have a significant alcohol or drug problem requiring further
treatment, no further participation in the program is required.
(4) If the evaluation concludes that the employee has an alco-
hol or drug problem requiring treatment, such treatment by an
outside organization or medical expert from a list agreed upon
by the Company and the Union will be arranged by the Com-
pany Medical Department.
(5) The employee’s participation in such treatment is volun-
tary. However, if the employee refuses such treatment or fails
to cooperate in its successful completion, any disciplinary ac-
tion for his/her job performance or attendance problems
which have been held in abeyance may be taken.
40.5 Treatment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD622
1. When the Evaluation Report indicates that treatment is nec-
essary and the employee agrees in writing to participate, the
Company’s Medical Department will:
(1) Arrange with the employee and the selected treat-
ment agency a schedule for treatment; and
(2) If necessary for treatment, arrange with the em-
ployee’s Company a leave of absence for the period of the
treatment. Such leaves of absence shall not be considered
breaches in service for purpose of accruing rights and
benefits under this contract and/or any benefit plan.
2. If the employee continues to work during treatment, he/she
will be subject to normal rules of conduct and performance.
40.6 Return to Work
1. If a leave of absence is required for the treatment of
the employee’s alcohol or drug related condition, the em-
ployee’s return to work must be approved by the Company
Medical Department.
2. Such approval will depend, in large measure but not
exclusively, on the recommendation of the outside treat-
ment agency or expert as to the employee’s successful
completion of the treatment. In the event the Company
Medical Department refuses to permit an employee to re-
turn to work after the employee has been released by the
outside treatment agency, the employee may select a third
outside community resource organization from those ap-
proved by the Company and Union and the evaluation by
that organization shall be binding on the parties.
3. An employee’s failure to successfully complete the
recommended course of treatment may result in termina-
tion of employment unless, in the opinion of the Company
Medical Department, the employee is able to return to
work. Such determination shall be subject to the Griev-
ance Procedure.
40.7 Costs incurred by the employee for medical evaluation
and treatment will be reimbursed under the Company’s Group
Insurance Program subject to the requirements and limitations
of that Program.
40.8 The Company and the Union will explore the desirability
of organizing a Chapter of Alcoholics Anonymous comprised
of eligible hourly employees who could provide counseling
and other essential supporting services to employees partici-
pating in this program.
40.9 The Company will institute a drug and alcohol testing
program which will be in compliance with the regulations
promulgated by the Department of Health and Human Re-
sources and/or the United States Department of Transporta-
tion.
40.10 Any employee who is found to be under the influence
of drugs and/or alcohol during work hours shall have one (1)
chance at rehabilitation. The employee must enroll in a reha-
bilitation program.”
4. Article 16 Seniority
Agreement was reached on the article on November 17, 2004
when the Union agreed to add the language “with the ability to
do the job” in article 16.2; which, as modified, reads as fol-
lows:
The principle of seniority with the ability to do the job shall
govern and control in all cases of promotion within the bar-
gaining unit, decrease or increase of working force.
The entire article is as follows:
ARTICLE 16—SENIORITY
16.1 The length of service of the employee in the Company
shall determine the seniority of the employee.
16.2 The principle of seniority with the ability to do the job
shall govern and control in all cases of promotion within the
bargaining unit, decrease or increase of the working force.
16.3 The Company shall give due consideration to promoting
current employees before hiring new employees.
16.4 All new employees shall, for the first forty-five (45) days
of their employment, be considered probationary employees.
If retained after the forty-five (45) day period, these employ-
ees shall be placed upon the seniority list with seniority as of
the date of hiring. All such employees may be dismissed dur-
ing this forty-five-(45) day period for cause.
16.5 The right of seniority in reemployment shall be accorded
to a laid-off employee prior to new employees being hired,
provided such laid-off employee responded to a call to report
for work not more than five (5) working days after receipt of
notice sent to him by registered mail to his last known post of-
fice address. If such laid-off employee fails to report for work
within fifteen (15) days, he shall lose all rights of seniority,
unless he is temporarily incapacitated, preventing him from
reporting, or is employed elsewhere, in which case he must
notify the Company in writing within five (5) days after the
receipt of the notice to return that he will report to work as
quickly as his health or temporary employment will permit.
Recall rights from layoff shall cease after an employee is laid
off for a period of two (2) years.
16.6 The Company shall prepare and maintain, subject to ex-
amination and correction by Union representatives, a seniority
list by shop and classification to record the status of each em-
ployee in the unit. The Union shall be provided with a copy of
the seniority list and shall be notified of all changes. Each
employee shall have the right to protest any error in his sen-
iority status.
16.7 Shop stewards shall be given seniority over all employ-
ees whom they represent during reduction in forces, provided
work in their classification or work in classifications to which
they have a displacement right is available, and so long as the
official’s duties would permit such seniority preference under
existing law.
If for any reason an employee ceases to hold one of the speci-
fied union positions and, as a result, no longer has sufficient
VALLEY HONDA 623
natural seniority to remain in the classification, the employee
shall be transferred or subject to layoff in accordance with the
seniority principles of this Agreement. The Union shall
promptly notify the Company in writing when there is a
change in the designation of shop stewards or members of
shop committees.
16.8 Seniority rights of a laid-off employee will continue to
accumulate while he is laid off for a period of two (2) years.
16.9 Seniority shall be lost for the following reasons only:
Voluntary quitting.
Discharge for just cause.
Failure to return to work as required in paragraph 16.5
hereof.
It is obvious that complete agreement was reached in these
four areas.
A copy of the 25-page collective-bargaining agreement was
sent to attorney John O’Connell and he found only two minor
typographical errors, i.e., on page 18, which was part of article
32–Sickness and Accident Benefits–where the word “sixty”
should be “sixth” and the word “form” should be “from.”
Those two typographical errors were corrected by Fichera’s
secretary.
Business Representative Fichera’s secretary, Mary Lou Ka-
nonick, spoke with John O’Connell about the two typos and
asked him if everything else in the contract was correct and
John O’Connell said yes.
I credit Kanonick’s testimony that O’Connell said everything
in the contract was okay except for the two typos. She appeared
honest and most significantly she was not contradicted by any
other testimony. O’Connell never testified that he did not say
that to Kanonick.
On January 31, 2005 Fichera spoke with John O’Connell
twice. In the first call Fichera said the Union was taking the
contract to Respondent’s facility for signature and O’Connell
said fine. In the second call O’Connell told a supervisor at Re-
spondent’s facility to let two unit employees who were working
sign the collective-bargaining agreement. Clearly, O’Connell, a
trained lawyer, thought the parties had a complete agreement.
O’Connell did not testify. Fichera’s testimony was uncontra-
dicted.
C. Decertification Petition
Sometime in early February 2005 Respondent’s President
James Graham found out that some employees were trying to
decertify the Union and, I find, that is why he did not sign the
contract agreed to by the parties.
In his testimony at the hearing on the decertification petition
on February 16, 2005, Graham said he didn’t sign the contract
because of the petition. He never once testified that agreement
had not been reached on the terms and conditions of employ-
ment.
Only after the charge was filed in this case on March 15,
2005 did Graham, in his affidavit to the Board dated March 23,
2005, claim that agreement had not been reached on the four
subjects discussed above.
CONCLUSIONS OF LAW
1. Respondent, Graham Automotive, Inc., d/b/a Valley
Honda, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. District Lodge 98, International Association of Machinists
and Aerospace Workers, AFL–CIO, CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time automotive service techni-
cians and team leaders employed by the Employer at its Mon-
roeville, Pennsylvania, facility; excluding office clerical em-
ployees and guards, professional employees and supervisors
as defined in the Act, and all other employees.
4. At all times material, the Union has been the exclusive
collective-bargaining representative of the employees in the
unit found appropriate for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to execute and sign the collective-
bargaining agreement agreed to by the Union and Respondent
and provided by the Union to Respondent on or about January
31, 2005, Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(1) and (5) and Sec-
tion 8(d) of the Act.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices proscribed by Section 8(a)(1) and (5) and Section 8(d)
of the Act, I recommend that it cease and desist therefrom and
that it take certain affirmative action designed to remedy the
unfair labor practices and to effectuate the policies of the act.
Specifically, I shall recommend that Respondent forthwith sign
the collective-bargaining agreement embodying the terms of
the agreement between Respondent and the Union and that it
give effect to such agreement retroactively to January 7, 2005,
when agreement was reached; and that it make whole its em-
ployees for losses, if any, which they may have suffered as a
result of Respondent’s failure to sign or to honor the agree-
ment, in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), with interest thereon as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]