Holmes Tuttle Broadway Ford, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1970

186 N.L.R.B. 73 (N.L.R.B. 1970)

HOLMES TUTTLE BROADWAY FORD 73
Holmes Tuttle Broadway Ford , Inc. and Teamsters,
Chauffeurs, Warehousemen & Helpers of America
Local #310. Case 28-CA-1914
October 26, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
faith doubt of the Union's majority, and the making
of contract proposals designed to discourage accept-
ance by the Union, not as per se violations of Section
8(a)(5), but as evidence in context that Respondent
did not intend to reach agreement with the Union and
thus bargained in bad faith in violation of Section
8(a)(5).3
REMEDY
On May 14, 1970, Trial Examiner Leo F. Lightner
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found
that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereaft-
er, Respondent filed exceptions to the Decision and a
brief in support thereof, and the General Counsel
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.I
The Trial Examiner found that Respondent violated
Section 8(a) (5) on and after January 12, 1969, by:
engaging in bargaining in bad faith with no intent to
reach agreement; insisting on an agreement limited in
duration to an unreasonably short period of time; 2
filing a representation petition well before the
expiration of the certification year without entertain-
ing a good-faith doubt of the Union's majority; failing
to provide its negotiators with sufficient authority to
conclude an agreement with the Union; and making
proposals during the course of negotiations designed
to discourage acceptance by the Union.
It is not clear whether the Trial Examiner intended
that each of these items after the first were supportive
of the finding of overall bad-faith bargaining, or were
separate, independent violations of Section 8(a)(5). In
order to clarify the matter, we rely on the insistence on
a contract which would expire with the certification
year, the filing of the representation petition during
the certification year without entertaining a good-
We have adopted the findings and conclusions of
the Trial Examiner concerning Respondent's refusal
to bargain in good faith with the Union during the
certification year, in violation of Section 8(a)(5) of the
Act. In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial year of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See: Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that Respondent, Holmes Tuttle
Broadway Ford, Inc., Tucson, Arizona, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
Add the following sentence to paragraph 2(a):
Regard the Union upon resumption of bargaining
and for 1 year thereafter as if the initial year of the
Union's certification had not expired.
1 In adopting the Trial Examiner's Decision, the Board does not also
adopt his discussion of the applicability of the General Electric case, infra,
to the fact situation presented in this case.
2 The Board agrees with the Trial Examiner in rejecting Respondent's
defense that it had a good-faith doubt of the Union's majority as a reason
for demanding that any collective-bargaining contract signed terminate
with the certification year. However, the Board relies not only on the
reason assigned by the Trial Examiner for rejecting this defense, but on the
further ground that as of the time of the strike there were approximately 70
employees in the appropriate unit and that Respondent had a basis for
assuming, on the basis of General Operations Manager Parker's testimony,
that at most 29 employees, or less than a majority, no longer wished to be
represented by the Union.
3 We find it unnecessary to adopt the Trial Examiner's findings that
Respondent failed to provide its negotiators with sufficient authority to
conclude an agreement with the Union.
186 NLRB No. 14
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Tuscon, Arizona, on November 18, 19,
and 20, 1969, on the complaint of General Counsel, as
amended, and the answer of Holmes Tuttle Broadway
Ford, Inc., herein called the Respondent.' The complaint
alleges violation of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended, 61 Stat. 136, herein called the Act. The parties
waived oral argument and briefs filed by the General
Counsel and Respondent have been carefully considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Arizona corporation with its office and
place of business at Tucson, Arizona, where it is engaged in
the retail sale, repair, service, and maintenance of new and
used automobiles and automotive equipment. During the
year immediately preceding the issuance of the complaint, a
representative period, Respondent sold and distributed
goods and services of a gross value in excess of $500,000,
and purchased and received goods and materials valued in
excess of $50,000 directly from locations in states of the
United States other than the State of Arizona. The
complaint alleges, the answer does not deny, and I find
Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers of
America Local # 310, herein referred to as the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings and litigated
at the hearing are whether the Respondent: (a) engaged in
unfair labor practices in contravention of the provisions of
Section 8(a)(5) and (1) of the Act by failing and refusing to
bargain collectively in good faith with the Union on and
after January 12, 1969, and more particularly (1) by
meeting with the Union and discussing mandatory subjects
of bargaining in bad faith with no intent to reach a final
and binding agreement, or (2) by insistence that any
agreement reached be limited in duration to an unreason-
ably short period of time, terminating simultaneously with
1 A charge herein was filed July 11, 1969 A complaint was issued on
August 29, 1969, and amended at the outset of the hearing herein
2 At the outset of the hearing paragraphs 7 and 8 of the complaint were
amended to correctly reflect the identity of this supervisor
3 At the conclusion of General Counsel's case, this allegation of an
independent violation of Section 8(a)(1), together with the allegation of
the termination of the certification year, or (3) by its action,
without a good-faith doubt of the Union's majority status,
and well before the termination of the certification year, in
filing a petition to test the Union's majority on May 26,
1969, or (4) by engaging in bad-faith collective bargaining
by repudiating agreements previously reached on specific
items, or (5) by failing to provide its negotiators with
sufficient authority to conclude an agreement, or (6) by
advancement of proposals designed to discourage accept-
ance by the Union, or (7) by, in bad faith, questioning the
union negotiator's authority and insisting upon ratification
of agreements reached by union membership, or (8) by
engaging in surveillance for the purpose of undermining the
Union's support; or (9) engaging in interference, restraint,
or coercion, in derogation of the provisions of Section
8(a)(I) of the Act, by its supervisor, Townsend J. Parker,2
engaging in surveillance of a union meeting on April 21,
1969.3 Respondent denies that it failed or refused to
bargain in good faith.
B. Supervisory Personnel
The complaint, as amended, alleges, the answer, as
amended, admits, and I find that Townsend J. Parker,
general operations manager , at all times material herein,
was a supervisor within the meaning of Section 2(11) of the
Act.
C. Background
The facts set forth under this subsection are undisputed.
There has been no prior history of collective bargaining
between the Respondent and the Union.
An election, held on July 3, 1968, under the supervision
of the Regional Director for Region 28, resulted in a vote of
45 for, 17 against, the Union and 2 challenged ballots.
Thereafter, the Regional Director issued a certification of
the Union, on July 12, 1968, as the exclusive representative,
for the purposes of collective bargaining, of the employees
in an appropriate unit described as follows:
All employees of the Respondent's general service
operations in Tucson, Arizona, exclusive of all other
employees, office clerical, plant clerical, and shop
clerical employees, salesmen, guards, watchmen, and
supervisors as defined in the Act.
On August 19, 1968, the Union delivered its initial
contract proposal to Respondent's representative. Subse-
quently, during the period between August 26, 1968, and
May 22, 1969, 18 negotiating sessions, varying in length,
also varying greatly in substance, were held on the
following dates: August 26; September 11 and 24; October
4, 11, and 23; November 1, 8, 14, 21, and 29; December 13
and 20; January 6 and 30; April 3 and 30; and May 22.
William McCollum, president of the local, was the principal
spokesman for the Union.4 William A. Scanland, a member
surveillance set forth as subparagraph (h), of paragraph 10, relative to the
allegations of failure to bargain in good faith, were dismissed and will not
be further considered herein
4 Others present, for the Union at vanous times, on or prior to January
6, were Charlie Knapp, business agent, and employees Tom Zwack and
Bennie Fox Attorney Schneier attended only on May 22 George Rohrer,
HOLMES TUTTLE BROADWAY FORD 75
of the bar of the State of Arizona, was the chief negotiator
for the Respondent.5
During the period of negotiations, on December 4, 1968,
a strike commenced. On December 24, 1968, the Union
advised Respondent, by letter, of the unconditional offer of
the employees, then on strike, to return to work and of their
request for reemployment. The Union also filed an unfair
labor practice charge, on December 24, 1968, alleging
violation of Section 8(a)(5) and (1) of the Act, in Case
28-CA-1818. This charge was subsequently withdrawn.
On May 22, 1969, Attorney Lerten, Respondent's
spokesman, offered the Union a collective-bargaining
agreement with a termination date, identical to the
expiration of 1 year after certification, of July 12, 1969, a
period of 7 weeks.
President Drewer identified Holmes Tuttle as the
principal stockholder of Respondent, owning more than 50
percent.
On May 26, 1969, Respondent filed an RM petition,
identified as Case 28-RM-224. On June 4, 1969, the
Regional Director dismissed the petition as being untimely
filed within the certification year.6 On July 15, 1969,
Respondent filed an RM petition identified as Case
28-RM-228. On August 28, 1969, the Regional Director
dismissed the petition by reason of the pendency of the
within matter.?
D. Bargaining Background Prior to January 12,
1969
It is undisputed that the Union submitted its initial
proposal on August 19, 1968. This proposal contained
approximately 23 numbered articles, with subsections, with
the following headings: recognition; union shop and check-
off; notification (notice to the Union of each hiring,
discharge, and pay rates, etc.); leave of absence; seniority
rights; health and welfare; pension; jury duty; sick leave;
funeral leave; vacation; holidays; uniforms; discharge or
suspension; examination and identification fees; meal
international representative , attended only on November 21.
5 Others present, for the Respondent , were Harold Burk , executive
secretary of Employers Council, Inc., and Townsend J. Parker. However,
Burk did not attend the November 29 meeting, and Parker did not attend
the August 26 meeting. Attorney Lerten and Robert Drewer, president of
Respondent , attended the May 22 meeting.
6 Section 9(c)(3) of the Act.
T Respondent's contention that it had a good-faith doubt of the Union's
majority status is considered infra.
8 In the light of the entire record, I find it unnecessary to resolve a
conflict in the assertion of McCollum that agreement was reached on the
recognition clause at this first meeting, as compared to the assertion of
Scanland that while there was no real argument about the basic recognition
clause, the detail of the Respondent 's second street address, or location
which the Union desired inserted , was worked out at a subsequent meeting.
9 While the Union subsequently submitted a booklet which outlined the
benefits of the insurance plan, it is undisputed that McCollum was never
able to obtain or transmit copies of the trust agreements . McCollum's
explanation was that he was advised "by the trustees" that there was no
such thing. McCollum provided Scanland with the identity, and the
addresses of the union and company trustees , so that Scanland could make
his request directly to them. In the light of the evidence of the other events
herein , McCollum 's obvious inability to comply with this request is of no
substantial consequence.
10 While it is undisputed that Arizona is a right -to-work state , the Union
proposal contains , as an alternative , what is commonly known as an
agency-shop clause . McCollum 's assertion that Respondent would not
periods; pay periods; general provisions; union stewards;
visitation by union representatives; maintenance of stand-
ards; wages; and duration of agreement.
The first negotiating meeting, and all except 6 of the
others, was held at the office of the Employers Council,
which was Burk's office. The exceptions were: three of the
November meetings were held at the union hall; the
December 13 meeting was in a hospital where Burk was
under treatment; a brief meeting on December 20 was at
the office of Attorney Scanland; and the meeting of
January 6 was at Burk's home.
McCollum credibly related that the meeting of August 26
extended from approximately 2:30 p.m. to 6 p.m. during
which the parties went over each article of the Union's
proposals.8 It is undisputed that the Union's initial
submission did not contain a provision covering grievance
procedures or arbitration, or a provision setting forth the
work week for individual employees. McCollum was
uncertain if the first item was omitted intentionally or
inadvertently, but asserted that omission of the latter was
intentional and due to the Union's lack of information in
that area. It is undisputed that there was a discussion of the
Union's health and welfare fund and that Scanland
requested the Union to provide copies of the health and
welfare and pension trust agreements, which McCollum
undertook to obtain .9 McCollum related that Scanland
advised that Respondent would not accede to a checkoff
clause or agree to a union-security provision.10
The parties met on September 11, 1968. The Union
submitted a new complete proposal covering some 21 pages
and including 24 articles.'1 While this meeting extended
over a period of 2 to 2 1 /2 hours it does not appear that
agreement was reached on any complete article.
On September 24, Respondent's counter proposal, which
had been submitted to the Union in the interim, was
considered during a meeting which extended from 2:30 to 5
or 5:30 p.m.12 There is no evidence of agreement as to any
of the proposals at this meeting. However, McCollum
agree to an agency-shop provision is undisputed.
11 Notably the union-shop provisions were deleted. A work week
provision was added as article XXIII. This proposal also did not contain a
grievance or arbitration provision.
12 Respondent's proposal is set forth on some 34 pages, including 26
sections, together with a 2-page appendix A covering classifications and
wage rates. Among the items not covered in the previous union
submissions are sections headed: nondiscrimination providing, inter alia,
for an employee's right to refrain from joining the Union; a management's
rights clause, providing, inter alia, the right to hire, transfer, promote,
demote, discipline, establish rules of conduct and rules and standards of
operation and workmanship not in direct conflict herewith, discharge for
cause, increase or decrease the work force, make work assignments, or
subcontract work "are solely functions of the employer" not subject to the
grievance and arbitration provisions; employee interchangeability;
probationary periods and temporary employees; seniority based on length
of service, "if, in the judgment of the employer, skill and ability are equal";
seniority (as defined) to apply on layoff and recall; employee obligations,
to perform all duties assigned, whether the assignment involves regularly
scheduled time or overtime, including Sundays and holidays; superannuat-
ed employees, providing for payment of less than the minimum rate;
discipline and discharge, providing circumstances under which discharges
may be effectuated, (including refusals to cross a picket line) with review
under the grievance and arbitration procedures limited to the question of
the existence of the alleged conduct; a grievance and arbitration procedure,
including provision for a polygraph test of any witness; unsatisfactory
work-employees financially responsible "and shall reimburse the
Employer for any expense, including labor and parts expense involved in
(Continued)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledged there were portions of articles on which
agreement was reached. McCollum's assertion that the
company's wage proposal was the existing minimum rate
stands undisputed.
Scanland asserted that, on September 24, Knapp inquired
as to the nature of Scanland's authority. Scanland asserted
he responded that, "I have full authority to negotiate a
contract and even sign it." Scanland then advised that he
reserved the right to consult with the company and its
management, "if I needed facts, if I wanted to advise them
of a legal situation that we might find ourselves in, I
reserved the right to discuss such matters with top
management, Mr. Drewer and Mr. Tuttle." 13 It does
appear that the parties agreed, in principle, that a final
contract should contain work rules, which Respondent was
to prepare and submit.
On September 26, the Union submitted its third draft
proposal, covering 17 pages and some 21 articles. Among
the deletions was the provision for notice to the Union
when the employer needed additional unit employees, also
a provision for a leave of absence to permit employees to
attend labor conventions. In addition, the Union incorpo-
rated subject matter which first appeared in Respondent's
draft, such as a proposed rights of management clause,
provision for probationary or temporary employees, and
inter- changeability.
A meeting on October 4 was the first attended by a
Federal mediator. McCollum was uncertain whether it was
at the meeting of September 24 or the meeting of October 4
that the Company sought and obtained the Union's consent
to an increase in what is termed the warranty service rate
This rate had been computed on the basis of $7 per hour,
with the employees receiving 45 percent of the customer
paid labor rate. It appears that the Ford Motor Company
approved an increase of this rate to $8 per hour.14 The
length of the October 4 meeting is obscure, except for the
assertion of McCollum that most of the meetings were of 3
to 3 1/2 hours duration.
McCollum credibly related that at the meeting of
October 11, at which a Federal mediator was present, he
inquired of Scanland "since we haven't agreed upon
anything," other than the recognition and a portion of a
nondiscrimination clause, if Scanland had authority to
agree on any part of the contract. McCollum also advised
Scanland that if he did not have such authority the Union
correcting comebacks", a no-strike , no-lockout , and no-boycott provision,
(permitting the employer , unilaterally , without notice , to terminate the
agreement upon violation ), and a provision permitting unit work to be
done by nonunit employees , including supervisors , owners, managers,
salesmen , and office clerical employees
i3 In view of the allegations of paragraph 13(e) this assertion is
considered , infra, p 83 and fn 36, as background
14 I find it unnecessary to resolve credibility in the matter of Scanland's
disagreement with this assertion of McCollum Scanland related it was not
until the meeting of October 23 that the customer labor rate matter was
discussed However, in the light of Scanland 's admission that the Company
did submit a wage proposal to the Union on October 4 providing for an
increase of $ 1 per flat rate hour , 45 percent of which was paid to the
mechanic , on a rate increase from $704 to $8 per hour , McCollum's
recitation would appear more accurate
General Counsel, in his brief, correctly calls attention to the fact that
this increase in labor rate resulted from a request of Respondent for
authorization from Ford Motor Company, long before the advent of the
Union , for modification of the rate , and this agreement, therefore , did not
constitute an economic concession on the part of Respondent
would appreciate his bunging someone in that could
provide "answers." McCollum asserted that Scanland
inquired, in return, if McCollum had authority to agree to
any part of the contract, "without ratification of the
members." 15
At the meeting of October 11, which extended over a
period of approximately 3 hours, the Union submitted
some supplemental proposals on such subjects as: nondis-
crimination , rights of management, interchangeability,
probationary and temporary employees, seniority, check-
off, working effort , superannuated employees, company
rules, grievance and arbitration, holidays, health and
welfare, and wage rates At the same meeting the Company
submitted supplemental proposals relating to conduct of
union business on employer's premises, work rules,
grievance, and arbitration. While McCollum listed a
number of topics which were discussed at the October 11
meeting it does not appear that agreement was reached on
any of the matters discussed.
On October 23 the parties met for approximately 2 1/2
hours and discussed a number of Respondent's proposals,
as well as some of the supplemental proposals submitted by
the Union on October 11. McCollum related that while the
parties discussed subcontracting, garnishments, probation-
ary periods, seniority, and placement of temporary
employees the only tentative agreement reached was on
Respondent's proposal relative to superannuated employ-
ees.
The meeting of November 1 commenced late, by reason
of the late arrival of McCollum, and inferentially lasted
only approximately 2 hours. McCollum asserted they
primarily discussed temporary probationary employees and
tentatively agreed that different probationary periods were
needed for different classifications , but did not agree on
any time limitations.16
McCollum related that most of the meeting of November
8 involved a lengthy discussion of health and welfare and
pension plans, with the Respondent advising they did not
wish the Teamsters plans, and the Union responding that
they were not insisting on the Union's plans but would be
willing to look at whatever the Company wished to place on
the table for discussion. The balance of the meeting appears
to have involved a discussion of subcontracting. No
agreements were reached on November 8.
The meeting of November 14 was the first meeting at the
15 Scanland 's dental of this exchange is not credited General Counsel
correctly notes, in his brief, that Scanland attributed a question as to his
authority to having been raised by Knapp on September 24 Burk initially
corroborated Scanland , in asserting that Knapp raised the question
Having his memory refreshed by a pretrial affidavit , in the possession of
General Counsel , Burk then asserted that the pretrial affidavit was in error
and that the question was in fact asked by Knapp The fact is, and the
parties stipulated , that Knapp did not attend the October I i meeting Burk
acknowledged that Scanland responded that he had full authority to
negotiate and further that he reserved the right to talk to top management
"as to cost factors and things of that [sort] which he did not have direct
knowledge of, but that he had full authority to enter into an agreement
when one was reached "
16 Scanland corroborated McCollum relative to the discussion of
November 1 Scanland asserted that the Company originally wanted a full
6-month probationary period for each and every classification , while the
Union felt this period was too long According to Scanland , after several
long discussions , the parties agreed that there should be certain
classifications with a 6-month probationary period while less skilled
employees should have a 3-month probationary period
HOLMES TUTTLE BROADWAY FORD 77
union headquarters. At this meeting the Union submitted a
new wage proposal, which Scanland agreed to review and
to comment upon at the following meeting. At this meeting
the parties agreed to redrafting of the provisions treating
with grievance, arbitration, layoff and discharge, and
employee's obligations.17 McCollum asserted that at this
session Scanland advised that Respondent was standing on
the management 's right clause in their original proposal
and that the company reserved the right to revert to their
original proposal in all cases.18
McCollum related the meeting of November 21 was also
held at the union hall and extended over a period between 3
and 3 1/2 hours. Among the subjects discussed were
coffeebreaks, lunch periods, and a company proposal that a
grievant's refusal to submit to a polygraph test will
constitute grounds for discharge. McCollum described the
Respondent as being adamant on the matter of their
request for a subcontract provision, after explaining that
their franchise could be changed by the Ford Motor
Company. McCollum asserted that the wage classifications,
as distinguished from wages, were also discussed. McCol-
lum was uncertain if it was at this meeting, or the following
meeting, that he advised Respondent that the employees
had taken a strike vote and had voted in favor of a strike.19
The meeting of November 29 was also held at the union
office and lasted approximately 4 hours. At this meeting
Respondent presented a list of work rules covering:
coffeebreaks; lunch hours; garnishments; and the right of
employees to work on personal cars. McCollum credibly
related that the Federal mediator had the parties go
through the various proposals, section by section, as the
result of which it was determined that agreement had been
reached in toto on only the recognition and discrimination
clauses . It is not disputed that there were partial
agreements , as to other proposals, subject to language
17 Identified as secs. 7, 8, 12, and 13 of the Company 's original
proposal.
18 Scanland identified the superannuated clause as one item discussed
on November 14. It is undisputed that parties discussed art. 2 of the
Company's original proposal dealing with nondiscrimination by the Union
of nonmembers who were unit employees and the conduct of union
business on the employer 's premises.
Scanland's denial of having asserted that the Company reserved the
right to revert to their original proposals and his statement that , at variance
therewith , he asserted , "we stand ready to negotiate at any time on any of
these propositions" are not credited.
19 In his brief General Counsel calls attention to the fact that
Respondent was requesting a subcontracting provision which expressly
provided that the right to subcontract was solely a function of the
employer and further that the exercise of subcontracting rights would not
be subject to grievance or arbitration provisions . In addition the Company
was requesting the Union to agree to a provision that neither the Employer
nor the Union will be required to negotiate further on matters set forth in
the agreement , or not specifically agreed to therein . General Counsel
correctly asserts that the net effect of an agreement combining these
requests is enunciated in Town & Country Manufacturing Company, Inc.,
136 NLRB 1022, enfd . 316 F.2d 846 (C.A. 5) and Fibreboard Paper
Products Corp., 138 NLRB 550, enfd. 322 F.2d 411 (C.A.D.C.).
20 In making my credibility findings relative to the meeting of
November 29, 1 am not unaware of the fact that, on cross-examination,
McCollum acknowledged that , in addition to the two articles he listed as
having been previously agreed on, he conceded there had been a previous
agreement on articles treating with tools and work comeback.
Scanland enumerated articles on which no agreement had been reached,
on November 29, as : a portion of the nondiscrimination clause; rights of
management ; interchangeability ; temporary and probationary employees
(on which Scanland asserted agreement was reached on November 29);
changes which had not been agreed on. McCollum asserted
that he offered to accept, in principle, 18 of Respondent's
23 proposals, which he enumerated. McCollum related
those still open for further consideration were wages, group
insurance, pension, grievance and arbitration, strike and
lockout, and seniority. McCollum acknowledged the term
of agreement was also still open. McCollum asserted that
the Company offer of a wage rate was the existing rates the
employees were receiving, in a rate range, and that the
Company was insisting that it would retain the right to
determine upward advancement of employee's in these rate
ranges.
McCollum advised that if the Union could obtain an
increase of approximately 15 cents an hour, together with
provisions for health and welfare and pension the Union
could persuade the employees to accept such an agreement.
McCollum asserted that Scanland's response was that he
would have to take the proposals back to Mr. Tuttle and get
his approval, not only on the increases but also on any
amount allotted for health and welfare and pensions.
McCollum asserted that Respondent did not respond to his
offer to accept the Company's proposals as to the 18
sections on which the Union indicated a willingness to
agree 2°
Scanland acknowledged having a telephone conversation
on approximately December 1 with McCollum during
which McCollum inquired if Scanland had any counter
offers. Scanland asserted that his response was "I told him
at this time I did not, and I was attempting to reach Mr.
Tuttle to give him some legal advice-I said I would be in
touch; I would call him as soon as I had a chance to talk to
Mr. Tuttle." Scanland asserted the following day he advised
McCollum that he had no counter offers. A strike ensued
commencing December 4.
On December 13, during the period of the strike, the
seniority; layoff and discharge (on which Scanland asserted there was
substantial agreement); employees ' obligations ; superannuated employees
(which Scanland asserted was accepted at that meeting); company rules;
holidays; vacations; group insurance; strikes, lockouts, and boycotts;
wages, work by employees not in the bargaining unit; past practices; and
duration of agreement , Scanland listed items agreed to during that meeting
as discipline, discharge, and uniforms. He asserted they were in substantial
agreement on grievance procedure and arbitration, and that they had
previously agreed on comeback and tools . He asserted the disagreement on
company rules related to the words "idleness" or "loafing" to be used in
the alternative. An examination of Respondent's submission of November
29 "work rules" reveals such a notation; however, neither word appears in
the context. Scanland asserted that, on November 29, he advised
McCollum that he still had not received the health and welfare and
pension trust agreements and could not comment on those proposals until
he had them.
Asked to outline what McCollum stated relative to wage increase, on
November 29, Scanland first responded, "Oh, he just listed the long list of
classifications with-he made a wage proposal on 11/14, and I believe on
the 29th he made a oral proposal of a list of wages-list of classifications
and wages." Thereafter, asked if McCollum had proposed a 15-cent -an-
hour increase across the board, Scanland responded, "I believe it was 15
cents on an hourly employee, it was $25 a month for monthly employees;
dispatcher had to get 2 percent of sales, plus whatever his flat salary is."
Asked to relate his response to this request of McCollum, Scanland then
asserted, "I told him that I would have to consider these, that these were
new proposals and that I reserved the right to review the legal implications
of the entire situation, and with Mr. Drewer or Mr. Tuttle" Scanland then
denied having stated on November 29 that he would have to take the union
proposals back to Mr. Tuttle to get his approval on the economic items.
Scanland acknowledged there was a discussion of a strike on November
29.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties met at Tucson Medical Center, where Burk was
confined for treatment . At that time, McCollum advised
that the Union was desirous of putting the employees back
to work and that "if the Company could see their way clear
to give us any increase or sit down and talk to us about the
things that we were apart on," McCollum was certain the
dispute could be terminated. The Company's response, if
any, is obscure.21
On December 20, McCollum delivered to Scanland, at
the office of the latter, a 19 page, 25 article proposal
purportedly containing Respondent's proposals to the
extent the Union agreed to them on November 29.
McCollum's explanation of this draft was that it left open
for further discussion the provisions of sections identified
as health and welfare, pension, and wages. Also open was
the matter of contract duration. McCollum asserted that he
advised Scanland that the Union would agree to these
articles, if the parties could get together on the remaining
items. According to McCollum, he met with Scanland for a
brief 10 or 15 minutes. Scanland looked over the document
and advised McCollum that Scanland reserved the right to
redraft the various provisions. McCollum related that
Scanland indicated some reservations about the manage-
ment 's right clause contained in the union submission,
which McCollum asserted was copied from Scanland's
original proposal. McCollum related that he requested a
wage increase of 10 cents per hour. According to
McCollum, Scanland advised that he would have to take
the union submission back to his principals before
responding to McCollum's request.22
On December 24, by letter to Scanland and Burk,
McCollum advised Respondent that the employees were
unconditionally offering to return to work and that they
requested reemployment. At the same time, the Union
requested that bargaining be resumed. In the same letter the
Union also requested a written copy of the Company's
proposals. On the same day the Union filed an unfair labor
practice charge, set forth supra. On December 27, Scanland,
by letter, advised that a number of employees had been
returned to their jobs on December 26, that in some
instances replacements had been hired. The Union's
attention was invited to the fact that the Company had
submitted written proposals during the negotiating sessions
and that Scanland was redrafting the management 's rights
clause , pursuant to his undertaking at the meeting of
December 20.
A meeting, on January 6, 1969, was held in Burk's home
and lasted approximately 3 hours. McCollum related that
Scanland advised that Respondent was reverting to
Respondent's original proposals. McCollum asserted after
covering some 7 or 8 provisions he inquired of Scanland if
Respondent really wanted a contract, pointing out that the
Respondent had not agreed to anything up to that point
and asserting that he saw no purpose in sitting there and
being unable to agree on anything. McCollum made a point
of asserting that relative to the items on which there had
been agreement Scanland either desired to revert to his
original proposal or to redraft.
It is undisputed that the Respondent presented its redraft
of the rights of management clause at the January 6
meeting.
Asked to enumerate the sections which Scanland
indicated would need further revision, McCollum related
this referred to section B of the nondiscrimination clause,
temporary transfer of employees into other classifications,
and the classification clause. McCollum asserted he
requested that Scanland submit a final proposal that the
Company would be willing to sign, in response to which
Scanland asserted the Company had submitted the final
proposal "that their original proposal was their final
proposal" together with agreements and modifications
made during the negotiations.
McCollum asserted that the Company inquired as to the
term of the contract and related that he responded that this
depended on the economic changes, if any, on a year-to-
year basis. Scanland, at that time advised that he was
negotiating on the basis of a 3-year contract, with no
changes in economics in the 3-year period. McCollum
asserted that he responded that without economic increases
the Union would not agree to more than a I-year contract
term.23
21 Scanland asserted that McCollum advised that he did not come to
this meeting with his hat in his hand and did not know what the employees
wanted but thought they would take a small raise and a pension plan
Scanland asserted that he advised McCollum that McCollum had
withdrawn his economic offers. McCollum denied having advised the
Federal mediator , on December 9, of a withdrawal of the Union's
economic offers
Scanland asserted that he inquired as to what McCollum sought.
Scanland asserted that McCollum responded that he did not know what
the employees would take but that the Company should dismiss the
replacements it had hired and then the parties might work something out
Asked what McCollum stated as he left the meeting, Scanland
responded , "He said-the last thing he said was 'if you have anything-I
had said to him 'we don 't know what you want , let us know and we ' ll give
it our consideration', and he said `yes, I'll be in touch' " I do not credit
this garbled recitation of Scanland
22 Respondent asserts that the management rights clause, submitted by
McCollum, is at variance with Respondent's initial proposal I find this
inaccuracy of McCollum of little consequence in consideration of the total
record
Scanland described the meeting of December 20 as lasting less than 5
minutes It is undisputed that it was not a scheduled meeting Scanland
acknowledged that either he called the attention of McCollum, or vice
versa, to the absence of language under the proposed sections covering
pension , health and welfare , and wages Scanland asserted that he again
called McCollum's attention to the fact that he had not received the trust
agreements covering the Union's pension and health and welfare plans
Scanland acknowledged advising McCollum that he would review the
submission and then get in touch with him
Scanland denied advising McCollum that he reserved the right to review
any clauses , asserting that he didn ' t have an opportunity to look at them
Scanland acknowledged that, on December 20, he did advise McCollum
that he was going to supply a rights of management proposal and that he
would do so "as I get cleared and squared away," and that he did in fact
submit such a proposal, to McCollum, on January 6
Asked if he discussed economic items, with McCollum , on December 20,
Scanland made the following remarkable response , "No sir I would not
discuss a substantive matter of any sort with a layman As a lawyer , I can't
talk to another man's client without his lawyer being present And I will
not discuss substantive affairs with lay people without witnesses being
present , and there was no substantive matter being discussed except he did
ask me to get the rights management clause out , which I said I would " The
meaning of Scanland's protestations become incomprehensible and
incredible in the light of the fact that McCollum, throughout these
negotiations, was the chief spokesman for the Union, unaccompanied by
an attorney until the last meeting, on May 22 In addition , it is undisputed
that the meetings of the January 30, April 3, and April 30 were held with
several individuals representing Respondent, but only McCollum
appearing for the Union
23 Scanland gave the following explanation of the reason for the
HOLMES TUTTLE BROADWAY FORD
E. Refusal to Bargain-Events Within the Section
10(b) Period
Since the charge herein was filed on July 11, 1969, all of
the foregoing may be considered only as background, to
cast light on the events within the Section 10(b) period.
Local Lodge No. 1424, International Association of Machin-
ists, AFL-CIO v. N.L.R.B. [Bryan Manufacturing Co.], 362
U.S. 411, 416. The events after January 12, 1969, are next
set forth.
1. January 30 meeting
It appears undisputed that there were no negotiations
conducted on January 30. Apparently the parties met at the
request of the Federal mediator. According to McCollum,
Scanland advised that Respondent was not there to
negotiate and that he had appeared at the request of
Federal mediator. Scanland also asserted that the parties
were at a complete impasse.
Scanland acknowledged that he was requested by the
Federal mediator to advise if he had any proposals to make,
to which he responded in the negative. He then asserted
that he wanted to clear up any question as to his authority,
relating that he had absolute authority to negotiate.
Scanland related he then asserted: "I have reserved the
right to get the facts if necessary from the Company, and I
have reserved the right to take time to advise the Company
of their legal position at any given time." Scanland then
asserted that Respondent had never received a "concrete
wage proposal" from the Union, and he had not received
the Union's pension and welfare plan or trust agreements.
Company's revision of the management 's rights clause which was
submitted to the Union on January 6, and which concludes with the
following : "and the exercise of the rights or functions by management shall
not be subject to the grievance or arbitration provisions of this agreement,
except that in addition to the foregoing rights of management of the
company and the direction of the working forces and without limitation
thereof the right to discipline and discharge employees for cause is vested
with the company subject to the terms and conditions of this agreement "
Scanland's explanation was: I gave them our rights of management
clause as amended that date . We amended it for several reasons. If you will
read our original proposal, it gives management various rights to determine
what products are to be sold, etc., but also to discharge and hire and layoff
men. At the bottom it says "none of the foregoing shall be subject to the
grievance clause", but we had a grievance clause. It is obvious that there
was a conflict , so if you will check my amended management clause, you
will find that management's rights to choose the products , to place of
business , to sell, etc., are not subject to a grievance clause. But in addition
to the foregoing , the right of management of the Company and direction of
their working force without limitation thereof ; the right to discipline and
discharge employees for cause is vested with the Company [subject] to the
terms and conditions of this agreement. Now, there was a hiatus there that
I was attempting to clear up . "You can not give a grievance clause on the
one hand and take it away with the other."
Scanland denied that McCollum left the meeting after charging
Scanland with a desire to redraft articles which had been previously agreed
to. Scanland 's assertion , by way of denial , is enlightening.
Q. At that meeting did Mr . McCollum say anything about the
Company wanting to redraft proposals already agreed to or words to
that effect.
A. He did not . I pointed out to him that we had not agreed to the
various-to the proposals that we had agreed that we were not
changing from our basic position except that he had asked and I had
submitted a right of management clause that date.
Q. Now, when you stated that , did Mr. McCollum say anything
about the Company redrafting former proposals or anything or
objecting thereto.
2. April 3 meeting
79
At the request of the Union, the parties met with the
Federal mediator on April 3. McCollum related that he
advised the Company that the Union was withdrawing all
of its requests and demands and was agreeing to all of the
Company's proposals, which McCollum asserted were
contained in a document the Union had prepared.24 At that
point McCollum signed the document, handed it to
Scanland and requested that Scanland sign it. According to
McCollum, Scanland responded that he would have to
review the contract and that he was reserving his right, as
the Company had during the negotiations, to withdraw all
of the Company's proposals or to modify or change them,
that before he could sign the agreement he would have to
take it back and review it with Mr. Tuttle and that he would
let McCollum know Respondent's position.
McCollum related that Scanland inquired as to what
authority McCollum had to sign the contract and inquired
if McCollum did not have to take it back to the members
and have it ratified. McCollum asserted that he advised
Scanland that he had had a meeting with the employees
earlier and had been given authority to accept the contract
in whatever form McCollum was willing to sign it.
McCollum acknowledged that he did not fill in the blank
spaces appearing in the provision relating to duration of the
agreement but indicated to the Company that he expected
the period of the agreement to be one year from the date of
its execution. McCollum asserted that the entire meeting
encompassed a period of only approximately 1/2 hour.25
A. He did not object to my redrafting of the rights of
management clause, and he did not point out a single proposition of
any of our prior proposals that we had changed other than those
which we had previously amended.
Scanland's denial that there was any discussion , on January 6, of the
Company's final proposal or of the contract term is not credited.
24 This document included, inter alia the following provisions
described, supra, in In . 12: Nondiscrimination ; rights of management-the
right to discipline and discharge employees "for cause is vested with the
company subject to the terms and conditions of this agreement" (the
balance of the management rights, including subcontracting , are not
subject to the grievance or arbitration provisions); interchangeability;
seniority, subject to the judgment of the employer as to skill and ability
being equal, and to apply on layoff and recall; employees obligations
(included under seniority); discipline and discharge (with grievance and
arbitration limited to the question of the existence of the alleged conduct);
grievance and arbitration included provision for a polygraph test of any
witness; a no-strike , no-lockout , no-boycott provision (permitting the
employer, without notice, to terminate the agreement , upon violation).
25 Scanland acknowledged that McCollum presented him with what
McCollum represented to be an agreement covering the company offers
and matters previously agreed on by the parties. Scanland acknowledged
that McCollum signed the agreement in Scanland 's presence. Scanland
then confirmed the recitation of McCollum , as follows:
Q. Now, at this meeting, and I'm referring to the meeting of April
3, 1969, Mr. Scanland did you state that you were reserving the right
to withdraw , modifying or change previous proposals made by the
Company or words to that effect?
A. What I said was "I am reserving the right to review this, to
determine whether or not it meets the terms that we have either
previously offered or have been agreed upon," and I said, "Yes, I am
going to reserve the right to modify as the Union has said in everyone
of its contracts."
Q. Did you state at this meeting of April 3, 1969, that you would
have to take this contract proposal back and review it with Mr. Tuttle
or words to that effect?
(Continued)
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. April 30 meeting
McCollum asserted that the next meeting, on April 30,
was arranged by the Federal mediator, at the request of
Scanland. McCollum asserted that Scanland advised that
McCollum had inadvertently omitted an article in drafting
and submitting the signed agreement on April 3. It appears
undisputed that Scanland did call the Union's attention to
some typographical errors. In addition, according to
McCollum, Scanland advised that there was a conflict
between some provisions of article 9 and article 11 (the
former treating with discipline and discharge and the latter
with work rules), which Scanland advised he would redraft.
McCollum asserted that Scanland requested an insertion, in
article II , section B, providing that if an employee violated
this section he would be subject to discharge. McCollum
asserted that he responded that the Union could not accept
that modification.
McCollum acknowledged that when he signed the
agreement on April 3 he did not indicate any period of time
as to its duration, orally or otherwise. At the meeting of
April 30, McCollum advised Scanland that McCollum had
in mind a 1 year agreement. McCollum related Scanland
responded that the Respondent was thinking in terms of the
contract ending simultaneous with the termination of the
certification year or July 12. McCollum asserted Scanland
indicated a doubt that the Union continued to represent a
majority of the employees, and used this as the basis for
Respondent's contract term limitation. McCollum related
that the meeting of April 30 encompassed approximately 2
1 /2 hours.26
On May 15, 1969, by letter, McCollum called the
attention of Scanland to the following: that McCollum had
signed a contract consisting of all the company proposals
on April 3 and requested Scanland's approval (execution);
that at the meeting on April 30 Scanland contended that
one of the articles had been omitted, which McCollum
described as having occurred inadvertently, and that other
matters (typographical errors) had been agreed on; that if
there was a conflict between two articles it was a conflict of
the Respondent's making, since these articles had been
initially proposed by Respondent. The letter concluded by
requesting the execution of the agreed on contract.
Scanland responded, by letter, the following day, asserting
A No, Sir, I did not
Q Did you say anything about Mr Tuttle at that meetmg7
A I said "I am going to reserve the right to consult and advise
both Mr Drewer and Mr Tuttle on the legal implications of exactly
where we stand at this time in our negotiations "
I do not credit Scanland's denial that he inquired as to McCollum's
authority to execute the agreement Scanland acknowledged making an
inquiry on either April 3 or April 30, as to when the employees had ratified
the agreement Scanland asserted that McCollum responded to this inquiry
by advising Scanland that it was none of his business
26 Scanland ' s explanation of the modification in article if, section B,
was that the Union had , inadvertently or otherwise , deleted a sentence
which read "Any employee who violates this shall be subject to immediate
discharge" According to Scanland, McCollum asserted that he had not
agreed to this particular sentence
Scanland enumerated specific stenographic or typographical errors
which he called to the attention of the Union Scanland related that he
called attention to specific provisions, which according to Scanland the
Respondent had not previously agreed to , upon which agreement was
reached during this particular meeting
that there were still differences to be resolved, and
requested a meeting on May 22.
4. May 22 meeting
At the meeting on May 22, in addition to Scanland, Burk,
and Parker, Attorney Erwin Lerten and Robert Drewer,
president of Respondent, were present on behalf of
Respondent. The Union was represented by McCollum and
the union attorney, Ira Schneier. The meeting was brief,
encompassing approximately 15 minutes.
According to McCollum, Lerten advised that if the
Union would agree to the incorporation of the provision
relative to discharge, in article II, section B, a correction in
the holiday provision, and other errors, which McCollum
described as inadvertent, Respondent was prepared to sign
a contract and brought Drewer to the meeting for that
purpose. At this point Schneier, after examining the
document, responded that the proposed termination date
was July 12, a period of approximately 7 weeks, therefore
no contract at all. Lerten responded this was the length of
time that the Company was willing to agree on because of
its doubt that the Union represented a majority of the
employees and that the Company was considering the filing
of a decertification petition. Schneier responded that the
Union would look the contract over and "get back with
them." It is undisputed that the Union did not communi-
cate further, until the filing of the charge herein.
Schneier corroborated the assertions of McCollum
relative to the meeting of May 22. He particularly made a
point of the fact that the Union asserted that they had an
agreement with Respondent, having agreed to all of the
Company's proposals on April 3. Schneier did not dispute
the fact that the agreement did not contain a provision
relative to its period of duration or termination, asserting
that he assumed that it would be a reasonable time.
Schneier acknowledged that Lerten advised that Respon-
dent could not accept Schneier's assertion and offered an
agreement which it had prepared, providing a termination
date of July 12. Schneier acknowledged that he advised
Lerten that he considered this offer as no contract at all.27
F. Union Majority Status
Respondent's effort to limit the term of an agreement to
Scanland summarized the conclusion of the April 30 meeting by
asserting that he advised McCollum that he was going to "redo this
contract" to fill in everything that had been agreed on Scanland also
advised McCollum that Respondent had a good-faith doubt as to the
Union's representing a majority of the employees and for that reason it was
considering confining the agreement to the balance of the certification
year Scanland asserted that at the conclusion of the April 30 meeting the
term of the agreement and the omission of the discharge provision from
article II, section B, were the only areas on which agreement had not been
reached
27 1 do not find any substantial disagreement in the recitation of
Scanland from that of McCollum as to the discussion of May 22 Scanland
asserted that Lerten advised the union representative that Lerten was going
to file a decertification petition the same afternoon
I do not find of any consequence the assertion of Scanland that
McCollum stated he was going to take the matter up with the employees, a
fact denied by McCollum and Schneier Scanland did not dispute the fact
that the meeting terminated on the advice by the Union that the Union
would advise Respondent further relative to what the Union intended to do
in the matter
HOLMES TUTFLE BROADWAY FORD 81
the certification year, terminating July 12, 1969, was
asserted to be due to Respondent's "good faith doubt" that
the Union continued to represent a majority of the
employees in the bargaining unit. Accordingly, a portion of
the evidence presented to support the existence of a
reasonable basis for said doubt is next set forth.
General Operations' Manager Parker asserted that on
December 24, 1968, about 9:30 or 10 a.m., Tom Zwack,
identified, as one of the two i employee members of the
bargaining committee, Paul Metz, Harry Anderson, Carl
Brinkman, and James Myers appeared at his office. Zwack
advised that he represented 90 percent of the employees on
strike and that they wished to come back to work.
According to Parker, Zwack asserted "we are through with
the Union. They have lied to us. They have not kept their
promise, and we want to get out." Parker related that he
advised the employees that he was unable to discuss any
matters with them since they were represented by the
Union, and that he could not recognize Zwack as having
any authority for the membership and could not discuss
their return to work. Parker then advised the employees,
"If, as individuals, you wish to return to active duty with
Holmes Tuttle, you may the 26th, the day after Christmas,
in the morning, contact me individually, and I will discuss,
based on the availability of the jobs you are looking for,
your return to work."
Purportedly for reference purposes, Parker caused the list
of the employees employed April 1 through May 22 to be
prepared. The list reflects 40 employees on April 1.28
Parker asserted that he was approached by 29 of those
listed, in addition to Scozzafava, on various dates
commencing in January and continuing into May, for the
purpose of seeking his assistance in their efforts to divest
themselves of union representation.
Parker, without notes, recited the approximate time and
place of each conversation, with each employee, and
identified others present on each such occasion. Parker's
uncorroborated recitation is summarized as follows:
His conversation with Ahumada was in the last week
of January, or the first week of February, with Summers
present . Ahumada inquired as to how they could get out
of the Union. Parker responded he could not advise or
help them "and to the best of my knowledge there was
no way to get out of it." Summers' inquiry was to the
same effect . Parker advised them "I am not at liberty to
advise you in any manner in any way to get out of the
Union or to secede from their representation." Parker
then asserted that he advised that he did not appreciate
them talking to him, that he had been advised by Mr.
Drewer that he was not to discuss the Union or the
Union's business with any employee "for any reason."
Apparently in spite of his injunction, Parker asserted
that Ahumada again talked to him on the same subject
2 weeks later and again in May. On these occasions,
Ahumada yelled "When you are going to get us out of
the Union." Parker related that he responded that he
could not discuss it.
28 The names of Tom Zwack and Bennie Fox, the employee members of
the negotiating committee , do not appear. It must be inferred they were no
longer employed.
Why Scozzafava was included on the list when he was terminated on
March 31 is unexplained . Craig was terminated on May 2. The total was
increased to 41 with the hiring of Berno and Martinez , prior to May 22.
His conversation with Anderson was on approximately
January 15, with Metz within hearing distance. Parker
asserted that Anderson inquired as to how they could get
out of the Union that he responded that to the best of
knowledge there was no way to get out of the Union and
that he had no authority to advise Anderson. Asked when
he next discussed the matter with Anderson, Parker
responded that Anderson had discussed the matter with
him "almost every week since January." Each time he
would say substantially the same thing. On April 4, the day
after McCollum had signed the agreement, Anderson, with
Metz and Myers present, advised he had attended the union
meeting the prior evening and intended to get out of it.
According to Parker, Metz commented that the conditions
they would be working under, under the contract, would be
worse than their present conditions. Myers inquired if
Parker would allow Myers to circulate a petition, inferen-
tially for decertification. Parker asserted that he advised
Myers that he would not "sanction, aid or abet" any
attempt to leave the Union. Parker also stated that he
advised Myers he would not furnish Myers with an address
or a telephone number, which were a matter of public
record, inferentially referring to the Board's location.
Parker then asserted that he advised the employees that he
did not desire to be further advised of their intentions.
Apparently in spite of the last injunction, Parker asserted
that he had "numerous" conversations with Myers, in
which Myers indicated he did not wish to be represented by
the Union. Parker described these conversations as being
"everytime I saw him thereafter, which was almost daily, he
always had some plan to get out . . . and each time I told
him that I was not privileged or even disposed to aid their
demise from the Union."
While Parker initially listed Kuhlman as one of those who
spoke to him about getting out of the Union, he later was
self-contradictory in asserting that Kuhlman did not speak
to him about the getting out of the Union.
Kaylor spoke to him about the middle of January and
advised Parker that Kaylor had been active in trying to get
the group out of the Union and had spoken to other
bodyshop members. Parker asserted that he advised Kaylor
that he was wrong, that he did not have Parker's
permission, that he should discontinue immediately, and
that if he wanted to join or not to join it was up to him "but
I would have no proceedings going on during working
hours to get out or in of any organization, that they were
supposed to be working." 29 Parker then asserted that
Kaylor had spoken to him on four or five other occasions
before May 22 and that in each occasion Kaylor advised
him of "essentially the same thing; he has stated that he has
all of the people tied up, that "we're going to get out."
Parker asserted that on each occasion, he advised Kaylor
that what Kaylor does is his own personal business, if it
doesn't interfere with company policy or endanger the
company position, and that we would have no part of any
movement to help any employee get out of the Union.
The total is compared to an estimated total of 75, with 64 voting on the day
of election, July 3, 1968.
29 There is no evidence that Kaylor's activity occurred during working
hours and no explanation of the reason for Parker's assumption of that
fact.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker asserted that Kennedy spoke to him on three or
four occasions. In early January, with the parts manager
present, Kennedy inquired as to when they were going to
get the union problem over with. Parker asserted he
responded that he had no information, knowledge, or
advice and did not wish to discuss it. His last conversation
was in early May when Kennedy inquired when they were
going to get a vote to get out of the Union, and Parker
asserted he responded he did not have the faintest idea and
could not discuss it.
Parker asserted he had two or three conversations with
Lock, the last being in April with Eckert, C.R. McInnes,
and Vidal present. Lock inquired as to when they were
going to get rid of the Union and Parker asserted he
responded he could not advise on any method of getting
out of the Union and did not wish to discuss it further.
Parker asserted that C.R. McInnes, in early April, asked
if Parker could be of any help in suggesting a means for the
employees to force the vote to remove the representation by
the Union. Parker asserted that he responded that he could
not be of help and would not be of any help.
Parker asserted that Noel, on more than two occasions,
talked to him about the Union. Asked what they talked
about he asserted that Noel inquired when they would have
a decertification vote. Parker asserted he responded that he
had no knowledge and could not be of any assistance. He
placed the time of his first conversation with Noel as the
last part of March and his last conversation as the first week
in May.
Parker placed two conversations with Raymond. The first
in early January during which Raymond inquired as to
when Parker was going to get him out of the Union, to
which Parker asserted he responded that he was not going
to get them out of the Union and was not able to and that it
was unlawful for him to advise them. In the second
conversation, near the end of March or early April,
Raymond inquired "have you gotten us out of the Union
yet." Parker asserted he responded in the negative and
advised that he did not wish to discuss it further.
Parker described two conversations with Saavedra, the
first in March and the second in April, about the time of the
union meeting, inferentially related to the April 3
bargaining session . During the latter conversation Saavedra
advised Parker there was much dissension and discontent
"and the fellows were all getting together to get out of the
Union." Parker related, "I told him that that was most
interesting but I did not want to be aware of any such
facts."
Weiler spoke to him "almost daily," commencing in early
January, asking if there was not something Mr. Tuttle could
do to get the men out of the Union, that they had worked
for him for many, many years and that they wanted to go
back to working for Mr. Tuttle and not have union
representation. Parker asserted he responded that they had
signed union cards, the Union was certified and would
represent them for a year, at least.30 His last conversation
with Weiler was in mid-April, when Weiler advised the
employees were all together ready to vote the Union out,
and inquired when the vote would be taken, asserting they
understood it would be in July when the certification year
ended. Parker asserted he responded that the assumption
was incorrect and that he knew of no way, for them "to get
out of the Union."
I find it unnecessary to further extend this decision, by
setting forth other conversations Parker purportedly had
with other employees.
While undoubtedly there is a degree of truth running
through the recitation of Parker, it is at the same time, to a
degree, improbable and incredible. Parker, on the one
hand, asserts that he advised employees that he was
instructed not to discuss the Union or union business, yet,
on the other hand, he had "numerous" conversations with
Myers, "almost daily" conversations with Weiler, almost
"every week" with Anderson, and numerous conversations
with others, all on the same subject of how the employees
could get rid of union representation. Parker's posture of a
refusal on his part to become involved cannot be equated
with repetitious conversations with the same employee.
Illustrative, Parker advised Anderson there was no way to
get out of the Union, and Parker had no authority to advise
him.
It is clear, from the recitation of Parker, that some
disenchantment, with the Union's ineffectiveness, was
attributable to the Union's report to the employees, at the
early April meeting, on the Union's capitulation, on April 3,
and its agreement to accept conditions advanced by, and
adamantly insisted on by, Respondent. In other words,
Respondent's intransigence and the employees disenchant-
ment are directly related in time, April 3, and result.
There are legal as well as factual reasons, explicated infra,
for finding no substance or merit to Respondent's assertion
of a good-faith doubt of the Union's majority status.
G. Concluding Findings
The Supreme Court has observed that the underlying
purpose of the Act is industrial peace, and that to allow
employers to rely on employees' rights in refusing to
bargain with the formally designated union is not
conducive to that end, but is inimical to it. Congress has
devised a formal mode for selection and rejection of
bargaining agents and has fixed the spacing of elections,
with a view of furthering industrial stability and with due
regard to administrative prudence.31 The Union's majority
during the certification year is irrebuttable.32 The Court
reaffirmed its prior holding that, where a union's majority
was dissipated after an employer's unfair labor practice in
refusing to bargain, the Board could appropriately find that
such conduct had undermined the prestige of the Union
and require the employer to bargain with it for a reasonable
period despite the loss of majority.33
I have found undisputed that, on May 22, 1969,
Respondent limited the proposed period of the collective-
bargaining agreement to a term ending July 12, or a period
encompassing only 7 weeks.
In Capital Aviation 34 the Board found an insistence on a
7-week contract, particularly in the light of the adamant
30 Why this would constitute an "almost daily" conversation is 32 Id at 104
unexplained 33 Id at 102, citing Franks Bros Company v. N L R B, 321 U S 709
31 Brooks v N L R B, 348 U S 96, 103 34 Capital Aviation, Inc, 152 NLRB 745, 753
HOLMES TUTTLE BROADWAY FORD 83
positions taken by Respondent to frustrate bargaining,
constituted a failure to bargain in good faith, despite
asserted evidence of employee disenchantment during the
certification year.
In Grand Rent A Car35 the Board found the totality of
Respondent's conduct that it was seeking to avoid arriving
at an agreement with the Union in order to dissipate its
majority representation. In this case the Respondent sought
to limit the term of the agreement to approximately 35 days.
The Board has held that a contract for less than a year to
expire at the end of the certification year is normally not
one that will give full force and effect to the Board's
certification. Consequently, the Board views insistence on
such a contract, without good reason appearing therefor, as
evidencing a lack of good -faith bargaining. Insulating
Fabricators, Inc., Southern Division, 144 NLRB 1325,
1329-1330.
On April 3, 1969, the Union advised Respondent it was
withdrawing all of its requests and demands and agreeing
to all of Respondent's proposals. The record up to that
point reflects no areas of complete agreement except as to
the recognition and part of the nondiscrimination sections
and minor portions of other sections. Respondent's
response was evasive and noncommittal . I have found that
Scanland responded that he would have to review the
contract, that he reserved the right to withdraw or modify
prior proposals, and that he would have to review it with
Mr. Tuttle .36
It thus appears, and I find, that Respondent: engaged in
bargaining in bad faith with no intent to reach agreement;
insisted on an agreement limited in duration to an
unreasonably short period of time; well before the
expiration of the certification year, without entertaining a
good-faith doubt of the Union's majority, filed an election
petition; failed to provide its negotiators with sufficient
authority to conclude an agreement with the Union; and
made proposals, during the course of negotiations, designed
to discourage acceptance by the Union.
Having considered the events which occurred prior to
January 12 only to the extent that they cast light on the
events within the Section 10(b) period.37 I find that by the
conduct described Respondent failed and refused to
bargain in good faith, since January 12, 1969, in violation of
Section 8(a)(5) and (1) of the Act.
In so finding I am mindful of the holding of the Board in
the General Electric case.38 In that case Respondent
contended that an employer cannot be found guilty of
having violated its statutory bargaining duty where it is
desirous of entering into a collective -bargaining agreement,
where it has met and conferred with the bargaining
representative on all required subjects of bargaining as
prescribed by statute and has not taken unlawful unilateral
action, and where it has not demanded the inclusion in the
collective-bargaining contract of any illegal clauses or
insisted to an impasse on any nonmandatory bargaining
35 Grand Rent A Car Corp. d/b/a Avis Rent-A-Car, 169 NLRB No. 36.
36 Scanland acknowledged the latter , even though he would characterize
it as advising Mr. Tuttle "on the legal implications of exactly where we
stand at this time in our negotiations."
37 Local Lodge No. 1424, etc., supra; The Herald Co. and The Post
Standard Co., Inc., 181 NLRB No. 62 (March 3, 1970).
38 General Electric Company, 150 NLRB 192, enfd . 418 F.2d 736 (C.A.
provisions . Citing the finding of the Supreme Court, in the
Katz case ,39 that the Board is authorized to order the
cessation of behavior which is in effect a refusal to
negotiate, or which directly obstructs or inhibits the actual
process of discussion , or which reflects a cast of mind
against reaching agreement , the Board found that a party
who enters into bargaining negotiations with a "take-it-or-
leave-it" attitude violates its duty to bargain although it
goes through the forms of bargaining , does not insist on any
illegal or nonmandatory bargaining proposals , and wants to
sign an agreement . Good-faith bargaining means more than
"going through the motions of negotiating ," the essential
thing is rather the serious intent to adjust differences and to
reach an acceptable common ground.
Obduracy and obstinacy may be weapons of bargaining
but where they are used not in the interest of bargaining but
in its frustration , we cannot give them sanction or refuge.
Procrastination and negativity are not components of
negotiation . The Act requires more than pretense . There is
a duty on both sides, though difficult of legal enforcement,
to enter into discussions with an open and fair mind, and a
sincere purpose to find a basis of agreement . Tex Tan
Welhausen Co., 419 F.2d 1265 (C.A. 5), enfg. 172 NLRB
No. 93, remanded 397 U.S. 819.
Finally, it must be observed that Respondent, by its
intransigence , succeeded in its effort to disparage and
discredit the Union in the latter 's effort to exercise its
statutory function, particularly on April 3, 1969.40 Diminu-
tion of the Union 's majority, if true, must be ascribed to the
misconduct of Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes obstructing commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent, upon request,
bargain collectively with Teamsters, Chauffeurs, Ware-
housemen & Helpers of America Local #310, as the
exclusive representative of all employees in the unit herein
found to be appropriate for the purpose of collective
bargaining, with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if
an understanding is reached, upon request, embody such
understanding in a signed agreement. In addition, to
2), cert . denied 397 U.S. 965, rehearing denied 397 U.S. 1059.
39 N.LR.B. V. Benne Katz, etc., d/b/a Williamsburg Steel Products Co.,
369 U.S. 736, 747.
40 Reference is made to General Operations Manager Parker's report of
the reaction of employees, as reported by Anderson, and others, as a result
of the union meeting , that they would be working under conditions worse
than those existing.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide the Union with ample time for carrying out its
mandate, and to prevent the employer from knowing that
"if he dillydallies or subtly undermines union strength" he
may erode that strength and relieve himself from his duty to
bargain, the effective period of duration of the certification
shall be deemed to begin on the date the Respondent
commences the bargain in good faith with the Umon.41
It is further recommended that Respondent be ordered to
cease and desist from in any like or related manner
infringing on rights guaranteed to its employees by Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen & Helpers of
America Local #310 is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees of the Respondent's general service
operations in Tucson, Arizona, exclusive of all other
employees, office clerical, plant clerical, and shop clerical
employees, salesmen, guards, watchmen, and supervisors as
defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union has been the exclusive representative of
all employees in the aforesaid unit, for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act, since July 12, 1968.
5 By failing and refusing to meet and bargain, in good
faith, on and after January 12, 1969, with the Union, as the
exclusive collective-bargaining representative for the em-
ployees, in the appropriate unit described herein, with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act, and has
thus interfered with, restrained, and coerced the employees
in the exercise of rights guaranteed in Section 7 of the Act
and has thus engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record of the case, I
recommend that the Respondent, Holmes Tuttle Broadway
Ford, Inc., its officers, agents, successors, and assigns, shall
be ordered to:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith, with Teamsters, Chauffeurs, Warehousemen &
Helpers of America Local #310, as the exclusive
bargaining representative of all its employees constituting
the unit herein found to be appropriate for the purposes of
collective bargaining.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other
concerted activity for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by the
Labor Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act-
(a) Upon request, bargain collectively with Teamsters,
Chauffeurs, Warehousemen & Helpers of America Local
#310, as the exclusive representative of all the employees
of the aforesaid appropriate unit, and, if an understanding
is reached, upon request, embody such understanding in a
signed agreement.
(b) Post at its places of business, particularly in the repair
shops, in Tucson, Arizona, copies of the notice attached
hereto marked Appendix.42 Copies of said notice, to be
furnished by the Regional Director for Region 28, after
being signed by Respondent's representative, shall be
posted by the Respondent and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision what steps it has taken to comply
therewith. It is further recommended that unless Respon-
dent shall within 20 days from the receipt of this Trial
Examiner's Decision notify said Regional Director, in
writing, it will comply with the foregoing Recommended
Order,43 the National Labor Relations Board issue an order
requiring the Respondent to take the action aforesaid.
41 Mar-Jac Poultry Company, Inc, 136 NLRB 785, Monroe
Manufacturing Company, etc, 167 N LRB No 157, Hy-Lond Hospitals, Inc,
181 NLRB No 6
42 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
the Board's Order is enforced by a judgment of the United States Court of
Appeals the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
11 In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order what steps the
Respondent has taken to comply therewith "
HOLMES TUTTLE BROADWAY FORD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Teamsters , Chauffeurs, Warehousemen & Helpers of
America Local #310 as the exclusive bargaining
representative of all the following employees:
All of our employees at our general service
operations in Tucson, Arizona, exclusive of all
other employees, office clerical, plant clerical, and
shop clerical employees, salesmen, guards, watch-
men, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their rights under the Act.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees in
the aforesaid appropriate unit, with respect to rates of
85
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, we will embody such understanding in a signed
contract.
Dated By
HOLMES TUTTLE BROADWAY
FoRD, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board 's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Ave., S.W.,
Post Office Box 2146, Albuquerque, New Mexico 87101,
Telephone 505-843-2507.