Long Island Jeep, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1977

231 N.L.R.B. 1361 (N.L.R.B. 1977)

LONG ISLAND JEEP, INC.
Long Island Jeep, Inc. and Local 259, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW). Case 29-CA-
4870
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On November 3, 1976, Administrative Law Judge
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed a brief in support of
the Administrative Law Judge's 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
We agree with the Administrative Law Judge that
the Respondent did not refuse to bargain in violation
of Section 8(a)(5) of the Act during contract
negotiations with the Union. Therefore, we adopt his
Decision in its entirety. Further, unlike our dissent-
ing colleague, we find no evidence that, between the
fifth and sixth bargaining sessions, the Union
demanded and the Respondent refused to attend a
meeting with the Union's representatives under the
auspices of the State Mediation Board. Thus, we can
attach no significance to events occurring in that
period which, in the Chairman's view, constitute
"additional" evidence of bad-faith bargaining on the
part of the Respondent.
As to those events, the Union's business agent
testified that after he agreed to determine whether
the Respondent's economic proposal was acceptable
to the employees and advise the Respondent accord-
ingly, but before doing so, he was put in contact with
an official of the State Mediation Board who offered
to find out if the Respondent would attend a meeting
tentatively set up with the Union. He was later
advised that the Respondent would not do so.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us thiat the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have
carefully examined the record and find no basis for reversing his findings.
231 NLRB No. 131
The only other reference to this incident is
contained in the testimony of James Dean, the
Respondent's counsel and chief negotiator, who
averred that he was told by this official "that the
Union felt that there was going to be trouble, that the
parties could not get together." Dean testified that he
told the mediator "we were so far apart, as far as I
was concerned, it did not make sense for the
mediator to step in." He testified further that "[the
mediator] said that he would let the Union know that
as far as we were concerned-the Company was
concerned-the mediation was not being requested
at this time or accepted."
We view the foregoing as no more than litmus to
test the feasibility of mediation at a particular stage
in the collective-bargaining process. In any event, we
are unable to find, on this state of the record, that the
Union requested and the Respondent declined to
attend a meeting under the auspices of the State
Mediation Board, thus evidencing an intention to
avoid its bargaining obligation under the Act.
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 Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
CHAIRMAN FANNING, dissenting:
Although the facts in this 8(a)(5) case are not
complicated, the issue of employer good faith in
bargaining is difficult. The Union was certified in
December and there were six bargaining sessions
from January 9 to February 24. Before Respondent
would make an economic proposal, it required the
Union to reduce its initial demands as made at the
first meeting. The Administrative Law Judge did not
consider that development a precondition, and in
any event viewed it as having only minimal signifi-
cance in the total context. The economic offer of
Respondent, given orally at the fifth meeting, was
advanced, as the Administrative Law Judge found,
as its "best or maximum offer." 3 The Administrative
Law Judge also found that Respondent then declined
to agree to a further meeting unless the Union was
ready to accept the economic proposal it had just
made, and this precondition he viewed as "evidence"
of bad faith. At the final meeting the Union reported
2 Respondent's motion to physically expunge rejected exhibits from the
record is hereby dismissed, as lacking in merit.
3 The Administrative Law Judge viewed the Union's version that the
offer was made on a "first, last, and only" basis-as the Union's witnesses'
interpretation of the words used by Respondent, observing that "best or
maximum offer it proposed to make ... may not be too different."
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employees had decided not to accept the
economic proposal. Respondent was willing to
discuss language if the Union wished to, but said that
it would not move on economics even with respect to
several employees as to whom it had made no offer
of immediate wage increase. The strike started that
afternoon.
In concluding that Respondent had bargained in
good faith, the Administrative Law Judge rational-
ized Respondent's precondition of employee accep-
tance of its economic offer before it would agree to
meet further as an effort to persuade the Union to
submit the offer to its membership-an effort in
which it succeeded. He went on to say that "more
important" was Respondent's willingness thereaf-
ter-once the Union had taken the economic
package to the employees and they had rejected it-
to meet again "without restriction" on what might be
discussed.4 The net result of Respondent's technique
was viewed as providing the Union "with the
negotiation opportunity it had previously been
improperly denied" and the Union as "contenting
itself' at the final meeting with only a general inquiry
concerning whether Respondent would enlarge its
offer or face the alternative of a strike. Noting the
admonition of Section 8(d) concerning the making of
concessions, he saw no bad faith in Respondent's
unwillingness to improve an economic offer not
designed to invite rejection.5
There was, however, a significant occurrence
between the fifth and sixth meetings to which the
Administrative Law Judge made no reference. 6
During the employee discussion of Respondent's
economic offer, the bargaining committee suggested
that the State Mediation Board be contacted for help
in reaching agreement. Union Representative Elliott
did contact that board and was later advised that
Respondent declined to meet. Respondent admits
that it was contacted and declined to meet, its excuse
being that the parties were too far apart in their
bargaining.7 That, of course, was a matter of opinion
but further discussion under the aegis of a mediator
might well have resolved the matter. As the Supreme
i I see no indication in the record that Respondent suggested an
unrestricted discussion at the final meeting. It specifically refused to move
on economics.
It should he noted that Respondent's offer made it difficult for the
Union by providing no immediate increase to certain employees, whom it
considered new and/or not entitled to a higher rate. The fact that this sort of
problem tends to crop up on a first contract hardly eases the certified
Union's burden in getting employee acceptance of an employer's economic
proposal.
` There is reference to two meetings arranged by the State Mediation
Service in the latter part of May, after the strike had been going on for
several months. Respondent was again willing to discuss only noneconomic
issues and the meetings were not face-to-face, each "side" being in a
separate room.
7 My colleagues choose to characterize the record as showing no
Court said in N.L.R.B. v. Truitt Manufacturing Co.,
351 U.S. 149, 152(1956):
While Congress did not compel agreement be-
tween employers and bargaining representatives,
it did require collective bargaining in the hope
that agreements would result. Section 204(a)(1) of
the Act admonishes both employers and employ-
ees to "exert every reasonable effort to make and
maintain agreements concerning rates of pay,
hours, and working conditions .... "
In fact, Administrative Law Judge Leff, in his
scholarly opinion in General Electric Company, 150
NLRB 192, 268, fn. 107 (1964), commented upon the
Court in the Truitt case having equated the statutory
duty under Section 204(a)(1) of the Act, as set forth
in the chapter creating the Federal Mediation and
Conciliation Service, with the duty under Section
8(a)(5) and 8(d).
Subsections (2) and (3) of Section 204(a) further
admonish employers and employees and their repre-
sentatives as follows:
(2) whenever a dispute arises over the terms of
application of a collective-bargaining agreement
and a conference is requested by a party or
prospective party thereto, arrange promptly for
such a conference to be held and endeavor in
such conference to settle such dispute expedi-
tiously; and
(3) in case such dispute is not settled by
conference, participate fully and promptly in such
meetings as may be undertaken by the Service
under this Act for the purpose of aiding in a
settlement of the dispute.
In my view the statutory objective of Section 204(a)
can as well be met by cooperation with a state
mediation service, where in fact a State has such a
board or service. Thus I would equate Respondent's
refusal to comply with the New York mediation
request for a meeting at a crucial time in negotiations
as additional evidence of bad-faith bargaining on the
part of Respondent.
evidence of a union "demand" for a mediator's intervention and no refusal
to attend a meeting under the auspices of a state mediator. Their further
discussion, however, establishes that an effort was made by the Union at
that time and was rebuffed by Respondent on the ground the parties were
too far apart in their demands. Dean's statement to the mediator who
contacted him that so far as the Company was concerned mediation was not
being requested at this time "or accepted" seems rather too clear for such
equivocation.
Concerning how far apart the parties were, Dean, for Respondent,
testified that the Union's reduced demands made at the beginning of the
February I I (fifth) meeting were "approximately 30 cents a man." One
dollar and twenty cents ($1.20) an hour per employee over a 3-year period
was found by the Administrative Law Judge to be Respondent's economic
package. It was presented orally, item by item, later at the same meeting.
1362
LONG ISLAND JEEP, INC.
The Supreme Court, in N.L.R.B. v. Insurance
Agents' International Union, AFL-CIO [Prudential
Insurance Co.], 361 U.S. 477, 485 (1960), discussing
good-faith bargaining under both Section 8(a)(5) and
Section 8(b)(3), quoted from the First Annual Report
of the National Labor Relations Board as follows:
Collective bargaining is something more than the
mere meeting of an employer with the representa-
tives of his employees; the essential thing is rather
the serious intent to adjust differences and to
reach an acceptable common ground.
Respondent here-by refusing the Union's request
for a meeting to discuss the economic offer it had just
made and requiring in lieu thereof employee accep-
tance of that offer before meeting further (found by
the Administrative Law Judge to be "evidence" of
bad-faith bargaining), and then by declining within a
matter of days to meet at the suggestion of a state
mediator-has shown a lack of serious intent to
adjust differences and to reach an acceptable ground.
In fact, Respondent's testimony reflects just that.
The Union had made one concession and Respon-
dent expected the Union to make another without
any effort on its part to reach a common ground.
Negotiator Dean testified that the Company's offer
was not "final" because it "fully expected" the union
membership to move, or make an adjustment to
which it could say "yes or no." Koetler, a "principal"
in Respondent's operation, "felt they [the Union]
were going to negotiate" because "we had discussed
money once," which can only refer to the Union's
economic concessions. In my opinion Respondent's
best or maximum offer was in effect its "final" offer
and by refusing to discuss it at all, either when
requested by the Union or when requested by the
state mediator, it failed to engage in good-faith
bargaining as required by the Act.
I would find the strike to have been caused by
Respondent's 8(a)(5) conduct and would order
reinstatement of the strikers upon appropriate
request.
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a
charge filed on February 23, 1976, by the above-named
Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 29,
issued a complaint dated April 30, 1976, against Long
Island Jeep, Inc., herein the Respondent, alleging that
Respondent has engaged in unfair labor practices within
the meaning of Section 8(aX)() and (5) of the National
All service department, parts department, and body shop employees of
Respondent employed at its service shop, exclusive of salesmen, office
Labor Relations Act, as amended, with respect to the
findings stated below. Respondent filed an answer denying
the commission of the alleged unfair labor practices. A
hearing was held on June 30 and July 1, 1976, at Brooklyn,
New York. Briefs were filed by the General Counsel and by
Respondent on August 3, 1976.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged at
Elmont, New York, in the sale, distribution, repair, and
servicing of new and used automobiles. During the past
year, its gross revenues from its aforesaid business
operations were in excess of $500,000. During the same
period Respondent purchased and had delivered to it in
interstate commerce from points outside the State of New
York new automobiles, automobile parts, and other goods
and materials valued in excess of $50,000. Respondent
admits that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and it is
so found.
11. THE LABOR ORGANIZATION INVOLVED
Local 259, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW), herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Prior to December 1975, Respondent's employees were
unorganized. On December 4, 1975, a majority of Respon-
dent's employees in the appropriate bargaining unit,' by a
secret-ballot election conducted under the supervision of
the Board's Regional Director for Region 29, designated
and selected the Union as their representative for the
purpose of collective bargaining with Respondent, and, on
January 13, 1976, the Regional Director certified the
Union as the exclusive bargaining representative of the
employees in the appropriate unit.
Following the employees' designation of the Union,
Respondent entered into contract negotiations with the
Union. Bargaining sessions were held on January 9, 16, and
27 and on February 5, 11, and 24, 1976. Local 259 Business
Agent Steven Elliott acted as the principal spokesman for
the Union at all these sessions. Employee John Pfeiffer was
present with Elliott at all the sessions, and employee
Angelo Cardillo was also present with him at every session
but the last. At the last meeting, on February 24. Carlo
Oliveri, a union representative, appeared in the place of
Cardillo. James Dean, of the law firm representing
Respondent in this proceeding, acted as the principal
spokesman for Respondent at the meetings. Henry and
clencal employees, guards, and all supervisors as defined in Sec. 2( 1) of the
Act.
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Koetler, the owners and general managers of
Respondent, attended the meetings with Dean.
The negotiating meetings referred to above failed to yield
a collective-bargaining contract. On February 24, 1976, the
employees in the bargaining unit ceased work and went out
on strike. The strike was still in progress at the time of the
hearing herein. The complaint alleges that Respondent
negotiated with the Union in bad faith and with no
intention to enter into a final or binding collective-
bargaining agreement with it. The complaint, as amended,
also alleges that the strike which began on February 24,
1976, was caused and prolonged by Respondent's unfair
labor practices. These allegations, denied by Respondent,
frame the issues to be decided in this case.
B. The Course of the Negotiations
The first meeting on January 9, 1976, lasted only about 5
minutes. The Union presented in writing its detailed
contract proposals. Respondent asked for time to look
them over and another meeting was set for January 16.
At the January 16 meeting, which ran about 2 hours,
Respondent and the Union reviewed item by item each
section of the Union's contract proposals. Dean asked for
clarification of some of the sections and indicated the
problems or objections Respondent had with others. The
discussions that day were confined to contract language.
At Dean's request, all items covering economic matters
were deferred for later consideration. Respondent did,
however, supply the Union with information relating to all
of Respondent's then-existing benefits. Respondent did not
at this meeting expressly accept any of the provisions in the
Union's proposed contract, except for the military service
clause and possibly also the nondiscrimination clause. Both
of these clauses, as Dean conceded, simply provided for
what the law required.
At the next meeting, on January 27, the Company
submitted to the Union its counterproposals covering
contract language and noneconomic terms and conditions
of employment. Dean told the union representatives that
the Company was not yet prepared to submit its economic
proposals.
The Company's counterproposals adopted without
change some of the sections of the Union's proposed
contract. These sections involved, in the main, contract
terms concerning which the Company could have no
legitimate basis for objection, such as those relating to
contract coverage, nondiscrimination in employment,
military service, and sanitary conditions. But the Comna-
ny's counterproposals did not stop there. They also
disclosed Respondent's willingness to accept in principle,
although with some modifications, some of the other
noneconomic terms and conditions the Union had pro-
posed. Thus, the Company's counterproposals in the
section dealing with union security, although deleting the
Union's union shop and checkoff proposals, adopted the
Union's contract language requiring the Company to hire
its new employees through the union-operated employment
office. In the section dealing with discharges, the Compa-
2 The Company's proposal varied from the Union's only in that it called
for a one-step rather than a two-step grievance procedure prior to
arbitration.
ny's counterproposal adopted in substance, with but a
slight modification in language, the Union's proposal
requiring 5 days' notice of discharge, except in cases of
drunkenness, gross negligence, insubordination or dishon-
esty, and subjecting all discharges to grievance and
arbitration procedures. In the section dealing with griev-
ances, the Company's counterproposal agreed in substance
with the Union's proposal that all unsettled employee
grievances, as well as all other unsettled disputes, be
submitted to arbitrations In the section dealing with the
workweek, the Company adopted the Union's proposals
for the scheduling of working hours and also for the
payment of premium pay, at 1-1/2 times hourly rates for
work done before regular starting time or after regular
quitting time, and at double the hourly rates for work done
on Sundays or holidays. The Company's counterproposals
also included, inter alia, a provision for the application of
seniority principles in situations involving the layoff or
recall of employees, a provision protecting employees in
the retention of their seniority for up to 2 years when
absent from work because of illness and injury, a provision
for call-in pay when work was not available, and a
provision for the payment of wages to employees who
require time off for medical attention for work-related
injuries.
The Company's noneconomic counterproposals were not
discussed at the January 21 meeting, but were deferred for
consideration at the next meeting at the request of Elliott
who stated that he needed additional time to study them.
At the next meeting held on February 5, the union and
the company bargaining representatives discussed in detail
the noneconomic issues posed by the Union's proposals
and the Company's counterproposals. Agreement was
reached, and noted, on a number of sections, or subdivi-
sions of sections. Included among them were the contract
coverage section, the subsections relating to the Company's
use of the Union's referral facilities in the hiring of new
employees, the section banning unlawful discrimination,
the subsection relating to the processing and arbitration of
grievances in discharge cases, the section relating to the
workweek, a subsection dealing with employee seniority,
the section dealing with sanitary conditions, and the
section dealing with employee injuries. On all items where
the parties were in disagreement, Dean stated his reasons
for proposing contract language differing from the lan-
guage found in the Union's proposals. The noneconomic
items on which no final agreement was reached at this
meeting were noted by the negotiating parties as remaining
"open." The Company did not assert with respect to any of
them, so far as appears, that its position was a final one not
open to later change or compromise.
At the February 5 meeting, the Company also responded
to the Union's previously declared position relating to the
specific classifications in which individual employees
should be placed. This involved principally the question of
whether certain individuals were to be classified as "A" or
"B" mechanics. There was no resolution of these issues.
The next meeting was scheduled for February 11. Up to
this point in the negotiations, there had been no specific
1364
LONG ISLAND JEEP, INC.
discussion of the Union's economic demands concerning
wages, health and welfare, pensions, vacations, holidays,
and sick leave. Respondent had insisted that these items be
deferred pending settlement of the contract language. At
the January 27 meeting, and again at the February 5
meeting, Elliott had called on the Company to come
forward with its economic demands. In response, Dean had
commented that the Union's economic demands were
"way out of line," and had stated that he wanted the Union
to lower its demands before the Company submitted its
economic proposal.
Prior to the February 11 meeting, the union representa-
tives met with the unit employees and a decision was
reached to lower the Union's demands.
At the start of the February 11 negotiating meeting, the
Company indicated its readiness to continue with a further
discussion of the noneconomic issues that had been left
open at the last meeting. The Union insisted, however, on
turning to a consideration of economic issues. It informed
the Company of its decision to lower its economic demands
and of the specific respects in which it was doing so. The
Union then called on the Company to declare its position
on money items. The Company in response asked the
union representatives to leave the meeting room so that it
might hold a caucus on that subject.
When the union representatives were called back to the
meeting room, Dean informed them that the Company was
now ready to present its economic offer. The offer was
presented orally. Before reading the Company's economic
offer to the union representatives, Dean made certain
remarks concerning it, the precise content of which is in
dispute.
Elliott testified that Dean prefaced his reading of the
economic offer with a declaration that it would be the
Company's "final offer." His testimony was corroborated
in substance by Pfeiffer and Cardillo, the Union's other
representatives at the meeting. It was their testimony that
Dean stated that the offer he was about to present would
be the Company's "first, last, and only proposal." Respon-
dent's witnesses, Dean and Frederick Koetler, 3 denied that
Dean at any time characterized the offer in the language
stated by the General Counsel's witnesses. Dean's version,
more fully, was as follows:
I told Mr. Elliott that as far as we were concerned it did
not make sense for the Company to see the Union
move the little bit that they did and for the Company
then to make a minor movement on our part. And then
for the Union to move a little bit again, and for us to
make a little minor move again, that this would be time
consuming and would not benefit either individual and
on that basis, we were going to make a proposal to the
Union which we wanted them to understand to be a
fair and reasonable proposal which they could take to
their membership.
: Hank Koetler. the other company representative. was not called as a
itness.
i The recollection of the company witnesses and of the union witnesses
differed with regard to when employee coverage under the plan was to
begin. According to the union witnesses, employee coverage under the
union plan (requiring employer contributions of approximately $55 per
month per emplosee) was not to become effective under the Company's
To the extent that the testimony of these witnesses is in
conflict, I accept Dean's version. I believe that the
testimony of the General Counsel's witnesses was based
not on their actual recollection of the precise words Dean
used, but on what they not unreasonably inferred to be the
sense of Dean's remarks, after also taking into account the
later events, to be related below, that followed the
presentation of the Company's economic offer.
The Company's offer was for a 3-year contract, as
opposed to the Union's demand for a I-year contract. It
provided for certain increments in wages and fringe
benefits over the 3-year period.
With respect to fringe benefits, the offer provided for the
following benefits over and beyond the employees' then-
existing benefits:
1. Three days paid sick leave a year (the Union had
asked for 6). The cost per employee of this benefit was
computed by the Company as amounting to 6 cents an
hour.
2. An afternoon coffeebreak in addition to the morning
coffeebreak which the employees already enjoyed, the
hourly cost of which was computed by the Company at 16
cents.
3. An added third week of vacation for employees with
15 years' or more service. The bargaining unit then had
only one employee, a part-time worker, who could have
qualified for this added benefit.
4. Coverage of the unit employees under a union
medical and hospitalization plan, the full cost of which was
to be borne by employer contributions, the cost of which,
according to the Company, amounted to 29 cents an hour
per employee during the first year of the contract and 32
cents during the second year.4
With respect to direct wages, the Company offered wage
scales for various job classifications which, under its
proposed classifications of individual employees, would
have granted the unit employees an average 25-cent-an-
hour wage increase during the first year of the contract and
additional average increases of 21.6 cents an hour in each
of the remaining 2 years of the contract. Attached hereto as
Appendix A is a chart showing the proposed classification
placement of each of the 18 employees in the bargaining
unit, the employee's rate of pay at the time, the Company's
proposed rate for the first year of the contract, and the
annual proposed increase during the second and third
years of the contract. As will be observed from the chart,
six of the employees in the unit were to receive no increase
during the first year of the contract, and one of them none
until the third year. The reason for this, as explained by
Respondent, was that the Company wanted to establish
and maintain uniform pay scales for all employees in the
same classifications, and these individuals were then
receiving wages equal to or above the rates proposed for
their respective classifications. The hourly rate proposed by
the Company for at least one of the classifications (A
offer until the second year of the contract. According to Respondent's
witnesses, the Company offered to contribute to a modified health plan
(requiring a monthly contribution of S40 per employee) during the first year
of the 3-year contract and to begin its participation in the Union's SS55 plan
at the start of the second year of the contract. I find it unnecessary for
purposes of decision in this case to resolve this conflict in testimony.
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mechanic), and perhaps for one or two of the others, was
higher than the rate then in effect for the same classifica-
tion under an industrywide contract which the Union had
with a multiemployer association of car dealers.5 As for
most of the classifications, however, the rates proposed by
the Company, though higher than the Company's prevail-
ing rates at the time, were substantially less than the so-
called industry rates.
After Dean concluded his presentation and explanation
of the Company's economic offer, Elliott expressed his
dissatisfaction with the offer, and said that he wanted
another meeting with the Company to work out a better
agreement. Disagreeing with Elliott's assessment of the
offer as inadequate, Dean reiterated that the Company had
put its best foot forward in presenting the offer; that it did
not want to engage in "nickel and dime" bargaining; and
that it considered its economic offer a fair and reasonable
one that the Union committee could, and should, recom-
mend to the employees for acceptance. Dean stated that
there would be no point in meeting with the Union again
unless the Union was ready to accept the Company's
economic offer as a basis for settlement. Dean urged Elliott
to submit the Company's offer to the unit employees before
anything else was done. In the end, Elliott agreed to do so,
at the same time making it clear, however, that the union
committee would not recommend the offer for acceptance.
So far as appears, the Union did not further pursue his
request for the scheduling at that time of a further meeting.
The meeting of February 11 was adjourned without any
further meeting being scheduled, but with the understand-
ing that Elliott would get in touch with Dean after he had
met with the employees and would let Dean know whether
they accepted the offer or not.6
Subsequently, the Union submitted the Company's
proposed economic offer to the unit employees, declaring
to the employees that the Company had represented its
offer as its final one. The offer was rejected by the
employees. On February 23, Elliott contacted Dean and
told him that the employees had rejected the Company's
offer and were ready to walk out. Elliott suggested that a
further negotiating meeting be held with a view toward
narrowing the differences between the Union and the
Company. Dean agreed. The meeting was set for the
following day.
The meeting of February 24 was of short duration. Dean
made clear at the outset of the meeting that the Company's
bargaining position was flexible on noneconomic items;
that it was prepared to talk about them; and that it
believed that some of them might be resolved through
further negotiations if the Union considered these items a
cause of the contract "hangup." He pointed out, however,
that it was the money items that appeared to be the
stumbling block to the consummation of a contract. Elliott
informed Dean that the employees were ready to strike and
asked him whether the Company had anything further to
: The industry rate for the A mechanic was $6.60, as contrasted to the $7
rate which the Company proposed. It appears, however, that the association
contr;lct also provided for incentive rates which allowed employees to earn
more than their hourly rates. Employees of Respondent worked on a
straight hourly basis.
'i The findings in the above paragraph are based on a synthesis of
credited and not specifically contradicted testimony given by Elliott and
offer on economic terms. Dean replied that it did not; that
the Company had gone as far as it could; and that if the
Union found the Company's offer unacceptable it could do
what it had to do - the last comment having reference to
the Union's threat to strike. Elliott then asked whether the
Company did not at least have something further to offer
with regard to the several individual employees for whom
the Company had proposed no immediate wage increase.
Dean said it did not. Elliott then declared, "Well, I guess
we are at an impasse." Dean agreed that this appeared to
be so. They shook hands and the meeting broke up.7
Immediately following the breakup of the February 24
meeting, Elliott met with the employees and reported to
them that there had been no economic movement by the
Company. The employees voted to strike. The strike began
at I p.m. that day. It was still in progress at the time of the
hearing.
Since the breakup of the February 24 meeting, neither
the Union nor the Company has made any request of the
other for a resumption of negotiations. It appears, however,
that the State Mediation Board did convene two meetings
at the request of the Union. At these meetings, held in the
latter part of May, the union and the company representa-
tives were sequestered and did not engage in face-to-face
negotiations. The Company indicated to the Union
through the mediator its willingness to yield substantially
to the Union on the noneconomic issues that had been left
open. But it did not at these meetings deviate from its
previously declared position on economic issues.
C. Analysis and Concluding Findings
As noted above, the complaint alleges as its asserted
predicate for an 8(a)(5) violation that Respondent "negoti-
ated with [the Union] in bad faith and with no intention to
enter into any final and binding collective bargaining
contract with it."
I am satisfied that the record in this case does not
reasonably support a finding that Respondent had no
intention to enter into a contract with the Union.
Respondent's position on substantive issues does not
reflect the bargaining attitude of an employer who is bent
on evading rather than reaching agreement with a union.
As appears from the findings made above, Respondent in
its noneconomic counterproposals did not seek to derogate
from the Union's status as an employee representative,
agreeing to have all employee grievances, as well as other
disputes, subjected to grievance-arbitration procedures,
and, while not accepting all the Union's proposals, made
substantial concessions to union demands, not only on
matters required by law, but in other respects as well. And
in its economic counterproposals, Respondent offered a
package of wage benefits and new or enlarged fringe
benefits which over a 3-year period would have added
approximately $1.20 an hour to Respondent's average
Dean. In certain respects the testimony of Elliott differs as to detail but not
as to basic substance from that of Pfeiffer and Cardillo. In these respects, I
accept the version of Elliott who by his overall testimony impressed me as
having a more reliable memory.
7 The findings in this paragraph are based on a composite of the credited
testimony of Elliott and Dean. There is no substantial difference between
their two versions.
1366
LONG ISLAND JEEP, INC.
labor costs per employee. It is quite clear, of course, that
Respondent's economic offer did not measure up to the
Union's expectations. But, on the evidence before me, I
have no reason to doubt the sincerity of Respondent's
assertion that it honestly and in good faith considered its
economic offer to be a reasonable one that the Union
could and should accept.
My finding that Respondent did not have a negotiating
purpose to evade agreement altogether does not, to be sure,
end further inquiry here. The law is clear that an
employer's willingness to enter into an agreement on its
own terms, or even its actual execution of one, does not
preclude a determination that an employer has violated its
statutory duty to bargain in good faith where such a
finding is reasonably supported by other circumstances.
See General Electric Compan),, 150 NLRB 192, 267 (1965),
enfd. 418 F.2d 736 (C.A. 2, 1969), cert. denied 397 U.S. 965
(1970). The question thus remains whether Respondent in
its negotiating conduct deviated from good-faith bargain-
ing standards in a manner or to an extent sufficient to
justify a finding that it violated Section 8(a)(5).
For purposes of discussion, it is convenient to divide the
consideration of that question into two parts, one covering
the period of negotiations preceding, and the other the
period following, Respondent's submission to the Union at
the meeting of February I of its economic counterpropo-
sals.
The propriety of Respondent's bargaining conduct
during the earlier period does not seem to me to be open to
any serious question. As appears from the findings made
above, Respondent during that period did not delay in the
scheduling of negotiating meetings; it provided the Union
with all information requested by the Union on matters
pertinent to the negotiations; it fully discussed with the
Union the latter's proposals relating to noneconomic
subjects; it presented its own counterproposals on such
subjects; and, with respect to those items on which it
differed with the Union, it stated its reasons for doing so.
Respondent's conduct in these respects quite clearly
comported with good-faith bargaining standards. I find no
merit in the General Counsel's contention in its brief that
Respondent deviated from such standards by "spending
the initial sessions discussing only 'language' proposals and
refusing to discuss economic proposals." The practice of
deferring discussion of money items pending consideration
of noneconomic issues is not an uncommon one in
collective bargaining. It does not appear from the record
that the General Counsel voiced any strong objection to
that procedure being followed. Nor does the record show
that the parties' prior consideration of noneconomic
matters led to any undue delay in the progress of
negotiations. The General Counsel points in his brief to
only one other item of asserted bad-faith bargaining by
Respondent during this period - Respondent's request of
the Union that it lower its economic demands before
Respondent submitted its economic proposals. It is
doubtful whether the evidence supports the General
Counsel's claim that Respondent made the Union's
I Reisnio Bro,.. Inc., 165 NLRB 390 (1967), on which the General
Counsel relies. is clearly distinguishable. The employer in that case not only
latl) refused to submit any counterproposals unless and until the union
compliance with that request a "precondition" to the
submission by it of any economic counterproposals. In any
event, I do not believe that Respondent's specific conduct
in that respect, when considered in its context with the
negotiations as a whole, may fairly be viewed as having
more than minimal significance in the determination of the
issue at hand.8
That brings me, then, to the period following February
11. As found above, there was no discussion by the parties
of money items until the meeting of February 1 I, when the
Union presented its reduced money demands, followed
immediately by Respondent's presentation of its economic
counterproposals. The General Counsel contends that,
with respect to money items, Respondent engaged in
conduct inconsistent with good faith and supportive of an
8(a)(5) violation finding by (1) presenting its initial
economic offer as its "first, last, and only offer" and never
thereafter deviating from the terms of that offer, and (2)
presenting its economic counterproposals to the Union on
a "take-it-or-leave-it" basis.
With regard to the first item, the General Counsel relies
in part on testimony that I have not credited. As found
above, Respondent did not in so many words present its
economic counterproposals as its "first, last, and only"
offer. It did make it clear, however, at least by implication,
that it wanted to have its initial offer regarded as the best
or maximum offer it proposed to make, which may not be
too different. Contrary to the General Counsel's apparent
position, I do not believe that any inference of bad faith
may be drawn solely from the fact that Respondent in
effect represented its initial offer when presented as its best
or maximum offer and has since adhered to the terms of
that offer without change. The statutory requirement to
negotiate in good faith does not, per se, compel "auction"
bargaining or forbid the use of a "best offer first"
bargaining technique, nor does it require the yielding of
bargaining positions fairly maintained.
The record does support the General Counsel's second
contention referred to above. It shows that even though
there had been no prior negotiations between the parties on
economic issues prior to Respondent's submission at the
February II meeting of its economic counterproposals,
Respondent refused the Union's request for a further
meeting, stating as a reason for its refusal that such a
meeting would serve no useful purpose unless the Union
was ready to accept Respondent's proposals. Respondent's
conduct in that respect, I find, constitutes evidence of bad
faith on Respondent's part. It does not, however, constitute
a per se violation of Section 8(a)(5).
The law is clear that, save where an alleged per se
violation is involved, the ultimate determination of whether
a party charged with an 8(aX5) violation has bargained in
good or bad faith is one that must rest on the totality of
that party's conduct. In assessing whether the evidence of
bad faith found above is of sufficient gravity to support an
8(a)(5) violation finding, there are a number of offsetting
circumstances shown by the record that must be taken into
account. Thus the record reflects that Respondent's
lowered its demands to a point the employer considered reasonable, but also
refused to meet with the union until the union did so.
4 See General Electric Co .s N. L R. B., supra at 762.
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement, that a further meeting would not serve a useful
purpose unless the Union was ready to accept Respon-
dent's offer, was made by it at the meeting of February I I
in furtherance of an effort to persuade the Union to submit
its offer, deemed by it to be a fair and reasonable one, to
the union membership for acceptance. The record further
indicates that the Union did not at the meeting of February
11 continue to press at that time its request for the
scheduling of a further meeting, but in the end agreed, at
least tacitly, to defer the question of scheduling another
meeting until after the Union's membership had consid-
ered and voted on the offer. Moreover, and more
important, it appears that Respondent, when notified that
the union membership had rejected its offer, promptly
consented to the Union's request for a further meeting,
without placing any restrictions on the subjects that might
be covered at that meeting, thus being provided with the
negotiating opportunity it had previously been improperly
denied.
Unlike the General Counsel, I do not view the evidence
relating to the February 24 meeting as providing persuasive
support for a finding that Respondent demonstrated by its
conduct at that meeting its adherence to a "take-it-or-
leave-it" attitude with regard to Respondent's economic
proposals. Although not restricted from doing so, the
Union made no attempt to discuss its differences with
Respondent on specific economic items in dispute, or to
offer for Respondent's consideration any compromise
proposals or other possible solutions for settling their
bargaining differences. Instead, the Union contented itself
with inquiring generally of Respondent whether Respon-
dent was prepared to enlarge its offer or face the alternative
of a strike and, when told by Respondent that Respondent
had gone as far as it could on money matters, declared an
impasse and abruptly broke off negotiations, without even
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
seeking to continue negotiations on the still open noneco-
nomic issues concerning which Respondent had made it
clear that its bargaining position was flexible. In these
circumstances, it can scarcely be said that Respondent's
bargaining in good faith was tested and found wanting. To
hold that Respondent's unwillingness to improve its
economic offer - an offer which I have found was not one
designed by Respondent to invite rejection - was itself a
mark of bad faith would be to ignore the 8(d) admonition
concerning the making of concessions.
On all the evidence, I conclude and find that the General
Counsel has failed to sustain the unfair labor practice
allegations of his complaint. It follows that there is likewise
no support for the complaint's allegation that the strike
which began on February 24, 1976, was an unfair labor
practice strike. Accordingly, I shall recommend dismissal
of the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not, as alleged in the complaint,
engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
4. The strike of Respondent's employees which began
on February 24, 1976, was not caused or prolonged by
Respondent's unfair labor practices.
ORDER 10
It is recommended that the complaint herein be dis-
missed in its entirety.
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.
APPENDIX
Company
Present Proposed
Employee Celas Rate Rate
Ii puli
Rlaoc
Cardillo
Pfeiffor
Aeon
Tovarea
Canady
Stuart
Lub in
Harder
Heywood
Antonio C.
'A" tcbh.
"A" Hs ch.
"I" Mech.
"1S" Mech.
"b" Hach.
"EB" HMch.
Nvw Car
Hake Ready
)ach. Helper
Hach. Helper
Polisher
Polisher
Utility
$7.00
6.50
4.75
4.50
4.75
5.25
4.05
3.50
4.00
3.50
3.70
3.00
$7.00
7.00
5.00
5.00
5.00
5.25
(Red Circle)
4.25
4.00
4.00
3.75
3.75
3.00
Amount of
Inc reas
lIt 2nd 3rd
Ye ar er Iear
$.00
.50
.25
.50
.25
.00
.25
.25
.25
.15
.15
.15
$.25
.25
.25
.25
.25
.00
25
.25
.25
.15
.15
.15
$.25
.25
.25
.25
.25
.25
.25
.25
.25
.15
.15
.15
1368
LONG ISLAND JEEP, INC. 1369
Curry Parts Incentive Plan Aver. $7.50 Hr.
Samu Pay Scala .25 .25 .25
Caldra& Parts Incentive Plan Aver. $7.50 Hr.
Sam Pay Scale .25 .25 .25
Canaloasi Body Shop 6.75 7.00 .25 .25 .25
(5.50 per hour plus $50 per week)
Dudevick Body Shop 5.65 6.00 .35 .25 .25
Hileweki APA Clerk 3.30 4.25 .95 .15 .15
Weber P.T. Utility 3.30 3.45 .15 .15 .15
Average Aver. Rte Aver. Inc. Aver. Inc.
Rate 4.90 5.15 .25 .21.6 .21.6