John L. Gibson

National Labor Relations Board - Board Decisions

Mar 23, 1971

189 N.L.R.B. 219 (N.L.R.B. 1971)

JOHN L. GIBSON 219
R. James Span , d/b/a John L . Gibson and Interna-
tional Association of Machinists and Aerospace
Workers , District No. 63, AFL-CIO. Case
6-CA-4873
prior to November 13, 1969, since the remedy would be the same as
ordered herein
3 In footnote 15 of the Trial Examiner's Decision, substitute "20" for
"l0" days
TRIAL EXAMINER 'S DECISION
March 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 21, 1970, Trial Examiner Eugene F. Frey
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices as
alleged in the complaint. Thereafter, the Respondent
filed exceptions and the General Counsel filed limited
exceptions to the Trial Examiner's Decision.' Both
filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed 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 and briefs, and
the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, R. James Span, d/b/a John L.
Gibson, Monessen, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.3
I Respondent's request for oral argument is hereby denied, since the
record, exceptions, and briefs adequately present the positions of the
parties
2 The General Counsel excepted to the Trial Examiner's failure to find
that no bona fide impasse, in fact, existed between the parties in their
collective-bargaining negotiations from July 15, 1969, and November 13,
1969, as alleged in the complaint The Trial Examiner found that
Respondent violated Section 8(a)(5) and (I) of the Act by its refusal to
meet and bargain with the Union on and after November 13, 1969, and
recommended a bargaining order with which we agree We, therefore, find
it unnecessary to determine whether or not a bona fide impasse existed
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issue in this case,
which was tried before me on June 11, 1970, at Pittsburgh,
Pennsylvania, with all parties appearing by counsel or other
representative, is whether or not Respondent, R. James
Span, operating a retail automobile sales agency under the
name of John L. Gibson, failed and refused in various ways
to bargain collectively with the above-named Union as
statutory representative of his employees, in violation of
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, 29 U.S.C. Section 151, et seq. (herein called the
Act). The issues apse on a complaint issued April 30, 1970,
by the Board's Regional Director for Region 6,1 and answer
of Respondent admitting jurisdiction but denying the com-
mission of any unfair labor practices. At close of the trial all
parties waived oral argument but written briefs filed by the
General Counsel and Respondent have been carefully
considered in preparation of the Decision.2
Upon the entire record in the case, and from my
observation of witnesses on the stand, I make the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS , AND STATUS OF UNION
Respondent is a sole proprietor engaged at Monessen,
Pennsylvania, in the retail sale and service of motor
vehicles. In the 12 months prior to issuance of the
complaint herein, his gross sales exceeded $500,000, and in
the same period he had a direct inflow of goods and
services valued in excess of $50,000. Respondent admits
and I find that he is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The above Union is a labor organization within the
meaning of Section 2(5) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. The sequence of events
On December 3, 1968 , after a Board-conducted election
in Case 6-RC-4839, the Union was certified by the Board
as statutory bargaining representative of employees of
Respondent in an appropriate unit consisting of all new and
used car salesmen employed at Respondent 's Monessen,
Pennsylvania , place of business, excluding all service
department employees , office clerical employees, guards,
professional employees and supervisors as defined in the
Act. Respondent admits, and I find , that this unit is still
appropriate for purposes of collective bargaining within the
I The complaint issued after Board investigation of charges filed by the
Union on January 15 and March 13, 1970
2 After the hearing closed, counsel for General Counsel moved on
notice to all parties to correct the transcript of testimony in certain
respects There being no opposition to the motion, it is hereby granted, the
record is considered corrected as proposed in the motion, and the motion
itself is marked in evidence as G C Exh 28
189 NLRB No. 37
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 9(b) of the Act. I also find that at all
times material herein the Union has been the statutory
representative of the employees in said unit for purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.3 In a companion case, 6-RC-4841, the Union was
at the same time certified as statutory agent for a similar
unit of employees of Matway Chevrolet, Inc., an automo-
bile dealer in Belle Vernon, Pennsylvania. Bargaining
started on January 22, 1969, when the Union sent
Respondent's counsel, J. Thomas Menaker, at his request
its initial contract proposal which was applicable to
salesmen of both Matway and Respondent .4 After
examination of it, Menaker advised the Union on January
30 that the employers needed more time to prepare written
counterproposals, and suggested a meeting on February 18
or 19. They finally agreed to meet on February 27, but on
the 19th Menaker sent the Union the joint counterpropo-
sals of both employers, noting that they omitted specific
financial proposals which Manaker advised he would
present and discuss fully at the coming meeting.5 On that
date the parties went over the company proposals item by
item, comparing each with the Union's clauses, and
reached tentative agreement on the contents and wording
of at least eight clauses, with some agreed changes of
wording, out of 19 provisions .6 There was a lengthy
discussion of the union shop demand of the Union, with
Menaker and an official of Respondent arguing against
that clause because one salesman of Respondent was
adamant against the Union and did not want to join it;
Menaker proposed other forms of union security, such as a
maintenance-of-membership clause , but Jesse G. Young,
the union spokesman, flatly stated that the Union would
not sign agreements without a union -shop clause . Menaker
recited orally the economic proposals, which Young noted
down and then discussed in detail . For Respondent these
proposals included a base salary of $300 per month for
salesmen , the same as the Union's initial proposal. The
Union asked for detailed information on the employers'
insurance and retirement plans, methods of payment of
salesmen, and procedure for use of demonstration cars by
salesmen . On this request, Menaker indicated at first that
details of the retirement and health and welfare plans, and
other financial information, could be procured directly
from the employees,7 but he then gave some details. In
explaining the retirement plan, Menaker said that employ-
er contributions were 2 percent of employers' gross
commissions and other income, the employees contributed
a like amount , and the benefits paid depended on the
amount of the contributions. Regarding the health and
welfare plans , Menaker explained in some detail the
Pennsylvania Automotive Association Insurance plan
which Matway maintained, and the self-contributing
Pittsburgh Blue Cross-Blue Shield plan in effect at
3 While Respondent denied the representative status in its answer, and
noted that the certification year expired December 3 , 1969, the record
shows that it did not make this claim in commumcation with the Union in
January 1970, nor in its arguments herein , but in fact has acted as though
the Union had continued majority status after the end of the year
4 Throughout the bargaining noted hereafter the firm, of which
Menaker is an associate , represented both employers , and Menaker was the
main spokesman and negotiator for both
5 Before the 27th, Menaker had not had a chance to discuss fully with
Respondent. Employees present from both units confirmed
Menaker's explanations . Menaker indicated he did not
have specific figures of cost of these plans to employers
and employees, but would get them from the employers'
records and send them to the Union. On seven or eight
other clauses, Young disagreed wholly or in part on
contents or wording, so that the parties did not reach
complete agreement thereon, but Menaker agreed to
rewrite some to comply with the Union's objections and
suggestions . In discussing economic or financial items,
Menaker indicated Respondent would bargain separately
with the Union thereon.
On March 10, the Union sent Menaker its proposals
regarding "management sales," and repeated its request for
information on company insurance and pension plans. On
March 18, Menaker sent the Union figures on employer
and employee contributions to Respondent's pension plan,
to supplement copies of a retirement plan booklet given the
Union earlier. The Union by letter of March 21 requested
further negotiation on this and the health and welfare plan,
indicating that under the Union's own plans, more benefits
were available for the same money.
At the meeting of April 1, the parties reviewed the revised
provisions submitted by Respondent, with changes in
clauses proposed earlier, and made progress toward
agreement on some but not on others, where the Union felt
that changes made in one clause caused conflicts with other
provisions; they discussed the latter instances but did not
reach agreement. There was again extended discussion of
the Union's demand for a union shop, with both sides
restating their positions at length as at the previous meeting,
but no change in position was made by either and no
agreement was reached on this. Menaker read to the Union
details of benefits from his only copy of a pension plan
booklet of the National Automobile Dealers Association
(NADA) which Respondent had adopted. The Union
asked more time to study the costs and benefits cited, and
asked for a copy of the NADA booklet. Menaker replied he
had only the one copy and did not know how to get
another, but the employees had been given copies. At this
meeting, Menaker indicated that the revised proposals were
the last offer from Respondent and the best it could make.
In later telephone discussions, Young claimed another
meeting would enable them to get together on contract
language, as well as talk further about certain aspects of
compensation, but Menaker indicated that since Respon-
dent had nothing more it could offer, and there was no
agreement to date, he saw little point in future negotiation
sessions . Young made no further attempts, formal or
informal, to schedule future meetings, but in May turned
the matter over to James W. Elnyczky, another union
official. Before he could get in touch with the salesmen at
both companies about negotiations, Elnyczky became
involved in the problem of several discharges at Matway,
each employer his specific ideas on economic proposals, but discussed it
with each the morning of that meeting
6 The clauses were Recognition, Grievance and Arbitration Procedure,
Promotions , Shop Steward , Leave of Absence , Validity and Separability,
Alteration of Agreement, Management clause . There was also substantial
agreement on procedure for use of demonstrator cars by salemen
r The record shows that each of Respondent 's salesmen had been given
a copy of the National Automobile Dealers Association (NADA) standard
retirement or pension plan which Respondent maintained for its salesmen
JOHN L . GIBSON
and did not contact Menaker for a new meeting until May
13 or 14 . Menaker asked the Union to send him a complete
counterproposal in response to the last Respondent
proposal , in advance of another meeting , as the Union had
done in the past . Elnyczky refused , saying he would submit
it only at the meeting . Menaker rejected this procedure.
They had three or four later discussions about the Matway
problems in May and June, in which the Union asked for
meetings on the salesmen 's units of both , but Menaker
refused to meet until after receipt of the Union 's latest
proposal . Elnyczky then became involved in a strike at
Matway, which was still underway at time of hearing. In
June through August , Elnyczky had talks with Menaker
about Matway, while the Union organized its service
department, and about mid-September the Union and
Matway worked out a settlement on recognition of the
Union and reinstatement of the discharged salesmen. On
September 29, the Union through Elnyczky formally
requested a meeting to "complete negotiations" on
contracts with Respondent and Matway.
On October 1, Menaker replied, in effect refusing to
make another trip to Pittsburgh because the Union had not
sent counterproposals to Menaker in advance of the
meeting , and claiming Respondent and the Union were at
an impasse for this reason . However , he said Respondent
would be prepared to bargain at the October 15 meeting on
Matway (which had been arranged by telephone talks
between Menaker and Elnyczky), after conclusion of
bargaining on that employer on that date , if the Union
would present its counterproposal on Respondent at that
time.
Although the parties next met on October 15 , 1969, at the
Matway premises, for negotiations (according to the
Union) on three contracts covering the service department
and salesmen units at Matway, and the salesmen at
Respondent , the whole meeting was consumed with
negotiations covering only the Matway service department;
although Menaker represented both employers, only the
Matway officials and members of its service unit were
present , no Gibson salesmen were there.
The meeting of October 15 had been cut short because
Menaker had to leave early to handle another commitment,
hence at the close of that session Elnyczky suggested that
the next meeting be scheduled for 2 successive days during
which the parties could also meet at night if necessary.
Menaker agreed , and the parties set the next meeting for
October 29 and 30. However , Menaker could not attend
because of other problems , and the parties finally met on
November II and 12 . On the first day the parties negotiated
only on the Matway service department contract and the
strike problem ; no officials or employees of Respondent
were present . Toward the end of that session , Menaker and
the Matway representatives asked for the Union 's latest
counter-proposals on the Matway servicemen , but Elnycz-
ky said he would have to write them up and present them
the next day . Menaker suggested they continue the
negotiations that evening , but Elnyczky refused because he
had to attend a union meeting in Pittsburgh in connection
with his pending campaign for reelection as a union official.
Menaker reminded him that in their prior talks setting up
this meeting Elnyczky had suggested a 2-day meeting with
221
night sessions , and then suggested in an irritated way that if
Elnyczky would not continue negotiations that evening,
Menaker would like to call off the entire negotiations, and
"just call it quits," since the parties were obviously at an
impasse in the Matway service department negotiations,
and Menaker did not want to stay over for a second day if
the Union would not negotiate that night . Menaker also
suggested he might negotiate with Leonard M. Schloer,
another union agent present , that evening about Respon-
dent 's salesmen , but Elnyczky declined because he wanted
an employee from that unit present . Menaker suggested he
could call one from Respondent 's office , only a short
distance away, but Elnyczky refused , saying he would bring
him into the meeting on th 12th . Menaker then asked for a
copy of any new union proposals on Respondent's
salesmen , if he had it with him, but Elnyczky said he had to
get it from his office . Shortly after that, after a private
caucus with Matway officials , Menaker advised Elnyczky
that Matway would continue negotiations the next day.
On the 12th the parties continued discussion of the
Matway service contract and problems most of the day,
but toward the end of the afternoon , the Union brought up
the subject of the salesmen of both employers. Menaker
requested the Union 's counterproposal on that unit, but
Elnyczky said he wanted the negotiating committees from
both units present before he would submit the proposal.
Menaker again asked for it, Elnyczky asked if Menaker
had authority to negotiate for Respondent on the salesmen,
Menaker said he did , and then Elnyczky gave him the
counterproposal . Menaker compared it hurriedly with the
Union 's original proposal, and commented that he did not
see any "significant" changes , except for a "more onerous"
clause limiting the right of management to sell automo-
biles, and a reduction in salesmen's base monthly salary
from $300 to $275 , but he would review it carefully and
reply to the Union in writing.
On November 13, Menaker wrote the Union that he had
compared its counterproposal on the Matway salesmen
with the last Matway proposal , found no significant
changes from the Union 's original proposal in January for
both employers , and rejected the changes on 5 clauses,
giving reasons for standing fast on its last vacation , health
and welfare , and pension proposals. He concluded that the
union suggestions showed no "willingness to progress to a
mutual meeting of the minds," that the gap between the
parties was as wide as ever , and nothing further could be
gained by additional meetings.
After November 13, Menaker had frequent telephone
discussions with Elnyczky , mostly about the problems and
contract of Matway Service department . By letter of
January 6 , 1970, the Union formally requested a meeting
with Menaker for continued negotiations with Respondent
(and Matway) on a contract for the salesmen . On January
9, Menaker replied for the employers as follows:
As we have previously advised you, there is absolutely
no reason to schedule any additional meeting to discuss
our respective contract proposals. We reached an
impasse several meetings ago, yet I continued to meet
with you because of your insistence that substantial
modifications of your proposals would be forthcoming.
It has become quite obvious to me that you have no
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intention of bending on the numerous important
problems that separate us. There is no way we can force
you to make further concessions; but since we are also
unwilling to make further concessions, it would be
ridiculous for us to continue meeting only to engage in
meaningless dialogue.
There was no further contact between the parties, and the
Union filed its charge herein on January 15, 1970.8
B. Contentions of the Parties, and Final
Conclusions of Fact and Law
The arguments of counsel suggest that the conduct of the
parties during negotiations is best considered in two time
periods: events before July 15, 1969 (the date 6 months
before the filing of the first charge) and events thereafter.
General Counsel contends (1) that Respondent's bargain-
ing before that date was bad-faith bargaining which would
require remedy but for the statute of limitations in Section
10(b) of the Act, so that Respondent's duty to bargain
continued to and after July 15; second, he claims that even
if a genuine impasse was reached before that date, it was
broken by later proposals of the Union which required
Respondent to assume bargaining, which it unlawfully
refused. Respondent contends simply that a genuine
impasse was reached before the upset date and the Union
did nothing to break it thereafter, so that Respondent did
not violate the Act by its earlier or later actions.
It is clear that before July 15 the parties established a
modus operandi which enabled them in two meetings before
that date to make some progress toward agreement. Before
the first meeting they exchanged initial proposals, discussed
and compared them on February 27, and reached tentative
agreement on wording and contents of some of the more
routine contract provisions; as often occurs, the more
crucial items involving money, on which the employers
made specific proposals, required more discussion and also
production by the employers of some detailed data on the
retirement and health and welfare plans before the April 1
meeting. That session was devoted mainly to review of a
revised contract prepared by Respondent largely on the
basis of the discussions and agreements at the first meeting.
Respondent also gave the Union verbally more details
about its retirement plan. Although the Union asked for
more meetings to discuss economics, Respondent took the
position it had made its best offer in that area, and since
there was no agreement, further meetings would be futile.
At first glance, this would appear to be a rather arbitrary
attitude after only two meetings, in view of the fact that
Respondent's second proposals appeared to withdraw in
some respects from its position on seniority rights and the
validity of past business practices and customs; as these
changes appeared to widen rather than narrow the
difference between the parties on those issues, and as there
had been no apparent exhaustive discussion of the pension
8 1 find the above facts from documentary proof and credible and
mutually corroborative testimony of Young, Elnyczky and Menaker
Testimony of any of these witnesses, or others who testified, which
conflicts with these findings is not credited
9 Times Publishing Company, 72 NLRB 676, 683, Phelps Dodge Copper
Products Corp, 101 NLRB 360, 368 (dealing with duties of employer and
union under Section 8(d) and 8(b)(3) of the Act), N L R B v Insurance
and health and welfare benefits proposed by each side, the
Union's request for further negotiations after April 1 would
appear reasonable and justified, for where the gap between
parties appeared to have widened, it has long been proven
that usually only personal discussion between the parties
can be effective to narrow it, rather than the more
impersonal and distant communication by telephone calls
and letters. In this view, Menaker's indication on April 1
that the employers had made their top offer and saw no
point in further meetings, and his refusal thereafter to meet
again, are some indications of a quick rejection of the
collective-bargaining principle, including a semblance of a
take-it-or-leave-it attitude in an attempt to create a
seeming impasse. However, the Union's attitude must also
be considered, in determining whether the employer
violated its bargaining duty under the Act,9 and on this
point I must also recognize that (1) as union negotiator
Young admitted, at the first two meetings most of the
discussion involved changes of working conditions and
compensation which had taken place at Matway since the
Union organized its salesmen and servicemen; this makes it
unlikely that either side negotiated fully at either meeting,
or intended to do so, on contracts for the salesmen's units;
(2) while Respondent appeared willing to discuss and
change position on most aspects of a contract at both
meetings, the Union apparently created an impasse at the
first meeting, and continued it on April 1, by its adamant
insistence on a union shop as a condition to any contract,
and its refusal to indicate any flexibility on the form of that
clause, in face of alternate suggestions by the employers; (3)
an indication of Respondent's bona fides in presentation of
proposals lies in the fact that its proposals from the start
included specific clauses creating a seniority system, a
formal grievance procedure, and a formal leave of absence
plan, where none of these had existed prior to advent of the
Union; in this respect Respondent was not compelling
bargaining "from scratch" on these items, but starting with
something akin to IAM contracts although not exactly in
the Union's terms.1° Hence, on all the facts, I cannot agree
that Respondent's attitude and changes of position through
April 1 were such as to create an impasse in bad faith with
the idea of avoiding further bonafide bargaining, especially
in view of the Union's adamant position on the Union
shop.
Despite what Young may have told Menaker in
conversations after April 1, the Union appeared to agree
that an impasse had been reached, when Young dropped
out of the negotiations and turned the problem over to
Elnyczky after about a month. When the latter took over,
the Union's method of negotiation changed significantly.
Where Young had gone along with the prior exchange or
proposals, and submission of partial proposals, before a
meeting, Elnyczky repeatedly refused to submit any written
proposals to the employers before a meeting. This
prevented prior examination of a proposal by the
Agents International Union, 361 U S 419, 487, 488 See also Radiator
Specialty Co , 143 NLRB 350, 373, 374
10 Respondent 's willingness to discuss and agree upon some form of
union-secunty provision, other than the flat union-shop clause, makes the
Board decision in New England Die Casting Company, 174 NLRB No 190,
inapplicable here.
JOHN L GIBSON
employers with the idea of speeding up actual negotiations,
an idea which Young had adopted as early as January 22,
and the refusal affords some support for Menaker's
objection to the change in procedure and refusal to hold
meetings until he received new union proposals in writing.
Elnyczky admitted he took this position deliberately,
because of alleged past experience in negotiations with
Menaker, in which prior submission of proposals to that
attorney had produced letters of complete rejection
followed by a refusal of further meetings; however, he
admits that neither Young nor he experienced that tactic in
this case, and Young's experience clearly indicated
Menaker was not at the outset trying to avoid meetings by
that device. Hence, Elnyczky's repeated refusals in May,
June, and July to send Menaker counterproposals before a
meeting, without explaining this reason, affords some
apparent justification for Menaker's belief that the Union
had nothing new or different to offer which might serve to
break the impasse and justify additional negotiations
Furthermore, it appears from uncontradicted testimony of
Menaker that in these months most of his contacts with
Elnyczky involved attempts to settle the strike and
discharge situation which had developed at Matway, and
that discussions of Respondent's salesmen's unit were
confined mostly to verbal requests by Elnyczky for further
negotiations on that unit, Menaker's requests for the latest
union proposals, and Elnyczky's promise to present them
only at a meeting, to which Menaker would reply that he
did not want to waste another trip to Pittsburgh at the
expense of Respondent unless he had something new before
him. Elnyczky maintained this attitude about new propos-
als as late as October 15, even though he had new proposals
prepared before that date. Hence, in view of the Union's
attitude I find no convincing proof of bad-faith refusal to
meet with the Union before the meeting of October 15,
1969. I reach the same conclusion about the negotiating
session of that date, which dealt only with the problems and
contract of the Matway service department, especially since
Elnyczky before that date promised to give Menaker the
latest proposals (already prepared) on Respondent's
salesmen, but did not do so. His refusal for the secret
reason noted above, plus his strange query of Menaker at
one point whether he had authority to negotiate for
Respondent, raises some inference that the Union was not
actually prepared to negotiate further with Respondent
about the salesmen on that date and before November 12.
By tacit agreement of the parties, the November 11 and
12 meetings dealt only with Matway problems; negotiations
on Respondent's contract on the 12th were side-stepped by
the Union on the I 1 th and came into the discussion late on
the 12th only to the extent that Menaker was able to
persuade Elnyczky to turn over the Union's latest
counterproposals (which had already been prepared and
available at least since October 15). General Counsel does
not directly argue that Respondent failed to bargain in
good faith at these last meetings, but contends that
Respondent violated the Act by its "adamant" refusal on
November 13 to meet again with the Union, after it had
received and considered the Union's second counterpropo-
11 Since Respondent is a small automobile dealer, with only three
salesmen, it is inferable that the total savings to it involved in the latest
223
sal on the 12th; he argues that significant concessions by
the Union in that proposal were enough to indicate to
Respondent the probability of progress in future negotia-
tions, and also served to break any existing impasse. In this
counterproposal the Union made these changes in its pnor
proposals: (1) it reduced its demand for base monthly
salary for salesmen from $300 already agreed on, to $275
(which would save Respondent a possible $25 a month, or
$900 a year, for three salesmen); (2) the vacation proposal
was reduced from a 4-week vacation after 15 years of
service, to 4 weeks after 20 years; (3) the cost to
Respondent of the health and welfare proposal under the
IAM plan was specified as $38.23 a month per employee,
as against no limitation on cost before; (4) the scope and
cost of the pension benefits under the IAM pension plan
was reduced from a $250 monthly benefit (which would
cost about $9 a month per employee) to $216 monthly
benefit, costing the employer a flat $8 per week per
employee (which would save the employer about $156 a
year in total cost, while reducing the base benefit for the
employees). The total saving to Respondent from these
changes would be well over $1,100 per year (not counting
the saving from the new vacation or health and welfare
offers, on which neither party has presented proof of the
exact cost under the old and new proposals). Menaker
turned down the reduced-base-salary proposal because
Respondent rejected the idea of a "guaranteed' monthly
salary. This does i of appear to be a sincere argument,
because there is no proof that Respondent had earlier
made this argument, and its agreement since March 7,
1969, to a "base" salary of $300 per month in itself implies
a form of guaranteed "floor" in salesmen's compensation.
He rejected the health and welfare proposal on the ground
that the new cost to Respondent was greater than its initial
proposal. He rejected the pension proposal, despite its
reduced cost, without reason. He gave a reason based on
industry practice for rejection of the vacation proposal, but
gave none for rejection of the new " sales by management"
clause. Although Respondent had a right under the Act to
maintain its pnor position in bargaining on any of these
proposals, I must agree with General Counsel that the
concessions offered by the Union on November 12 were
sufficient in number and significant enough in scope and
effect on the employer to indicate that further face-to-face
bargaining on these subjects might well be
fruitful,ii and thus served to break the existing
impasse. It is true, of course, that the latest pension plan
proposal, which would cost Respondent $416 a year per
employee, was still far greater than his contribution of
about $226 a year per employee under the NADA plan,
and Elnyczky admits that from the beginning of negotia-
tions the Union never receded from its demand for the
IAM plan, and Respondent insisted throughout on
continuance of its NADA plan, which appears to have
created a genuine and continuing impasse on that subject
alone, alongside the impasse created by the Union's
adamant insistence on a flat union shop clause of its own
choice, nevertheless, I must conclude that the impasse to
this extent still did not relieve Respondent of the duty to
union proposals, even if only between $1,100 and $2,000 a year, was still far
from "insignificant," as Respondent now contends
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiate further on other subjects where the Union made
significant concessions , for it is a well -known fact of
industrial life and collective bargaining that when parties
meet face -to-face ' in such situations , other changes of
position by one or both on situations of apparent deadlock
might well arise and serve to bring the parties together even
on issues where they appear to be hopelessly apart. Hence,
I cannot agree with Menaker's conclusion that the Union's
last proposal showed an unwillingness to progress toward a
mutual meeting of the minds, but rather must conclude
that it showed a willingness to make in part the very type
of concessions which Menaker had demanded in prior
discussions, as well as on January 9, 1970, and this required
Respondent to meet with the Union for further negotia-
tions as requested . 12 I therefore find and conclude that by
Menaker's refusal of November 13, 1969, and January 9,
1970, to meet with the Union for further negotiations,
Respondent failed and refused in good faith to bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act.13
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, above
occurring in connection with his operations 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 burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. Since December 3, 1968, and at all times stated
above, the Union has been the certified and exclusive
bargaining representative under Section 9(a) of the Act of
Respondent 's new- and used-car salesmen employed at his
Monessen, Pennsylvania, place of business , but excluding
all service department employees, office clerical employees,
guards , professional employees and supervisors as defined
in the Act, which is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
3. By failing and refusing to meet with the Union as
such bargaining agent at its request on and after November
13, 1969, Respondent has failed and refused to bargain with
said Union in good faith in violation of Section 8(a)(5) of
the Act, and by such conduct Respondent has interfered
with, restrained, and coerced employees in the exercise of
12 Jacobs Manufacturing Company, 94 NLRB 1214, Sharon Hats,
Incorporated 127 NLRB 947, 956, 957, Webb Furniture Corporation, 152
NLRB 1526, 1529 , enfd . 366 F 2d 314 (C.A. 4).
11 I have considered other , corollary arguments of both sides dealing
with details of the proposals and conduct of the Union and Respondent,
but find it unnecessary to make specific findings or conclusions thereon, in
view of the nature and scope of the violations found and remedy therefor
recommended below
i' 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
rights guaranteed to them by Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
4. The above conduct constitutes unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (5), and 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices
as alleged in the complaint other than those specifically
found above.
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 which
is necessary to effectuate the policies of the Act. In view of
the limited nature of the refusal to bargain found above,
and the lack of other types of unfair labor practices, the
remedial order should be limited to a prohibition of like or
related conduct.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, I
recommend that R. James Span, d/b/a John L. Gibson, his
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and bargain collectively,
upon request, with International Association of Machinists
and Aerospace Workers, District No. 63, AFL-CIO, as the
exclusive bargaining representative of his employees in the
unit found above to be appropriate, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing his employees in the exercise of any
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, meet and bargain collectively with the
above-named labor organization as the exclusive bargain-
ing agent of his employees in the unit aforesaid concerning
rates of pay, wages, hours of employment, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post in his place of business at Monessen, Pennsylva-
nia, copies of the attached notice marked Appendix.14
Copies of said notice, on forms to be provided by the
Regional Director for Region 6, shall, after being duly
signed by Respondent or his representative, be posted by
him immediately upon receipt thereof, and be maintained
by him for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
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
that the Board 's Order is enforced by a judgment of a 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."
JOHN L. GIBSON 225
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days after receipt of this Decision , what steps
Respondent has taken to comply herewith.15
15 In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
employees, guards , professional employees and
supervisors as defined in the Act.
I WILL NOT in any like or related manner interfere
with, restrain , or coerce my employees in the exercise of
their rights guaranteed to them by Section 7 of the Act.
I WILL MEET and bargain collectively, upon request,
with the above-named labor organization as the
exclusive bargaining representative of my employees in
the unit described above concerning rates of pay, wages,
hours of employment, and other terms and conditions
of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
I WILL NOT fail or refuse to meet and bargain
collectively, upon request , with International Associa-
tion of Machinists and Aerospace Workers, District No.
63, AFL-CIO, as the exclusive bargaining representa-
tive of my employees in the unit described below
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment. The
bargaining unit is:
All new and used car salesmen at my Monessen,
Pennsylvania, place of business , excluding all
service department employees, office clerical
Dated By
R. JAMES SPAN, D/B/A
JOHN L. GIBSON
(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, 1536
Federal Building, I J00 Liberty, Pittsburgh , Pennsylvania
15222, Telephone 412-6442977.