Peter Satori Co., Ltd.

National Labor Relations Board - Board Decisions

Mar 25, 1969

175 N.L.R.B. 36 (N.L.R.B. 1969)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Satori Co., Ltd . and International Association
of Machinists District Lodge 94. Cases
3l-CA-812, and 31-CA-812-2
March 25, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 23, 1968, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that the 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
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them
Thereafter, the Respondent and the General Counsel
filed exceptions to the Decision and supporting
briefs.
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 made by the
Trial Examiner 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 only to the extent consistent
herewith.
We agree with the Trial Examiner, for the reasons
set forth in his Decision, that the Respondent
engaged in conduct violative of Sections 8(a)(5) and
8(a)(1) of the Act by (1) refusing to furnish the
Union with information concerning the details of a
profit-sharing and retirement plan previously
established, and (2) negotiating directly with
employees in the body shop department concerning
wages at a time when wage negotiations with the
Union were pending. Contrary to the Trial
Examiner, however, we do not agree that the
Respondent's course of conduct in its negotiation
sessions with the Union can be characterized as
merely "hard bargaining by a manifestly skilled
negotiator." Viewed in its totality, we are
persuaded, for the reasons discussed below, that the
Respondent was determined to frustrate the
collective-bargaining process and thus bargained in
bad faith in violation of Section 8(a)(1) and (5).'
Nor do we agree with the Trial Examiner that it would be "superfluous
and unduly extensive " to consider the Respondent ' s overall bargaining
conduct because the remedy would be identical to that found for the above
violations Based upon the Trial Examiner's Decision, the Respondent
could , and probably would, assume that its conduct at the bargaining table
The Union was certified on December 13, 1966.
Thereafter, the Respondent and the Union engaged
in 14 negotiation sessions between April 13 and
October 18, 1967 At the first meeting,' the
Respondent's chief negotiator, Burdette Fredricks,
refused the Union's suggestion, made by its chief
negotiator, Charles Edwards, that they go through
the Union's proposed contract provision by
provision in an attempt to narrow the issues
Fredricks insisted that the Respondent would not
negotiate in that fashion, but would bargain only on
the basis of an entire contract, a position he
maintained throughout the bargaining sessions.
Despite the Respondent's position, the Union
attempted to reach an agreement on the basis of its
contract proposals. During the first six sessions,
between April 13 and July 17, Edwards interpreted
and explained the Union's specific proposals.
Following the Respondent's expressed inability to
agree to certain items the Union withdrew
approximately I I proposals, including demands for
parking facilities, notification to the Union of
industrial accidents, minimum pay for employees
who report when no work is available, seniority in
work assignments, written summaries of grievance
adjustments, negotiation of matters nQt specifically
provided for in the agreement during the contract
term, bidding by seniority for promotions and
transfers, prohibition of subcontracting unit work,
the right to refuse to work on struck goods,
furnishing statistical data to the Union for wage
surveys, and payment of employment agency fees by
the Respondent. At the same time the Union
indicated its understanding that tentative agreement
had been reached with the Respondent on several
matters, including the following: vacation proposals,
Union notification of all leaves of absences in excess
of 30 days, proposed safety and shop committees,
sanitary and washing facilities, bulletin board
privileges and access to the plant by Union
representatives, and no strikes, slowdowns, or
lockouts during the term of the agreement.
At the July 17 meeting the Respondent presented
its counterproposals and indicated that it did not
consider itself bound by the previous negotiation
sessions. The Respondent rejected the contention
that tentative agreements had been reached, and
reasserted its position that it would only negotiate
on the basis of a complete package. The proposed
contract contained only two of the items upon which
the parties had previously indicated agreement:
length of vacation and the no strike, no slowdown,
and no lockout provisions. The shop and safety
committee proposals previously discussed were
drastically changed, and no provision was made for
was permissible under the Act Thus, the remedy would be inadequate and
would offer no resolution of the basic issue as to whether the Respondent's
bargaining table conduct constituted bargaining in bad faith nor would it
afford any guidance as to required future bargaining table conduct
'The factual presentation of the bargaining sessions is based upon
uncontradicted record testimony
175 NLRB No. 6
PETER SATORI CO., LTD. 37
shop stewards.
Following the July 17 meeting, the remaining
seven sessions were held with a Federal mediator in
attendance. At the session on August 15, the Union
reduced its wage demands for several job categories,
withdrew a demand for an eighth holiday and
proposals for checkoff, jury duty pay, severance pay,
time off for blood donations, and second and third
shift bonuses. On August 21, the Respondent
modified its package proposals by offering a
10-cent-an-hour increase for mechanics, agreeing
with the Union's proposal to substitute the day after
Thanksgiving for an employee's birthday as a
holiday, making Saturday work voluntary, and
raising the pay of "service writers." After making
this proposal, Fredricks commented:
This offer of August 21, 1967, represents the total
offer of the Company, and we will not answer
each and every point that Mr. Edwards has
raised. This entire matter will probably be
brought up in another forum, in the NLRB.
At the September 15 meeting the Union further
reduced wage demands for four job categories and
agreed to the Respondent's proposal for shared
contribution for the cost of the rental of uniforms.
On September 18, the Respondent modified its
proposals by agreeing that work in excess of 8 hours
a day would be voluntary and to certain changes in
wage formulas. Fredricks indicated that the
Respondent was not going above this offer and
announced to the Federal mediator present that as
far as the Respondent was concerned an impasse
had been reached.
On September 29, the Union further modified its
demands by proposing concessions in its wage
demands and health plan. On the same day the
Respondent modified its previous offer by proposals
which would substantially reduce the vacation plan
then in effect, exclude body shop employees from its
present policy of paid holidays and sick leave,
increase the wage rates for mechanics and
lubrication men and service writers monthly
guarantees, and include shop stewards on the
grievance committee. Following this offer, Fredricks
stated to the mediator that this was "our final
offer." Edwards rejected the offer and noted that the
Respondent had not included a grievance procedure.
When the mediator suggested further bargaining,
Fredricks made a "final offer on grievance
procedure" which provided for arbitration on
unresolved grievances if both parties agreed.
Another session was held on October 18.
Fredricks emphasized throughout that the
Respondent had made a final offer and that an
impasse had been reached. The Respondent did not
respond to the Union's proposals reducing wage
demands for two job categories and providing for
management rights. No further bargaining
negotiation sessions were held.
On October 19, the day after the Respondent,
refused further bargaining sessions, the Respondent
without consultation with the Union reduced
vacation benefits of bargaining unit employees from
4 weeks to 2 weeks.
Upon consideration of the totality of the
Respondent's course of bargaining conduct, as
,indicated by the above, as well as by its conduct
away from the bargaining table, we find, contrary to
the Trial Examiner, that the Respondent refused to
bargain in good faith with the Union from the
inception of bargaining on April 13, 1967, and that
such conduct was violative of Section 8(a)(5) and (1)
of the Act. As illustrated from the above course of
conduct, the Respondent coupled a determination to
yield nothing of substance to the Union with an
attitude of offering its proposals on a take or leave
it basis. The Respondent's major bargaining position
of insisting upon a complete package while
repeatedly making counterproposals which virtually
ignored previous tentative partial agreements, and
its refusal to narrow bargaining by finding issues
upon which agreement could be reached do not in
our view reflect the attitude of an employer who
approached bargaining with an open mind and
purpose to reach agreement consistent with the
respective rights of the parties. We are persuaded
that the insistence of the Respondent throughout on
the finality of its offers and the alacrity with which
the Respondent announced impasses demonstrated
not a desire to bargain but a means by which to
conceal a purposeful strategy to make bargaining
futile and eventually fail completely.'
Our conclusion that the Respondent did not
approach the bargaining table with a good-faith
intent to reach an agreement is reaffirmed by its
refusal to furnish the Union with necessary
information concerning the details of the established
profit-sharing and retirement plans during the
bargaining and its negotiating directly with body
shop employees, both of which we have found to be
independent violations of Section 8(a)(5) and (1) of
the Act. In addition, we find that the Respondent's
unilateral reduction of vacation benefits for
bargaining unit employees at a time when it had an
obligation to bargain collectively with the Union
was additional evidence of its bad-faith bargaining
at the table and was independently violative of
Section 8(a)(5) of the Act.'
'See, e g , East Texas Steel Casting Co , Inc, 154 NLRB 1080, 1082,
Kohler Co , 148 NLRB 1434, 1444, enfd 345 F.2d 748 (C A D C ), cert
denied 82 U S 836, N L R B v Insurance Agents' International Union,
AFL-CIO (Prudential Insurance Company of America) , 361 U S 477,
485, N L R B v Herman Sausage Company , Inc , 275 F 2d 229, 231, 232,
(C A 5), reheanng denied 277 F 2d 134 (C.A. 1), cert denied 346 U S
887
'See Safeway Steel Scaffolds Co, 153 NLRB 417, 418, enfd 383 F 2d
273 cert denied 390 U S 955, N L R B v Andrew Jergens Co, 175 F 2d
130, 136 (C A 9' Intercoastal Terminal, Inc, etc , 125 NLRB 359 at
360-361 and 369-370
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has engaged in
other unfair labor practices violative of Section
8(a)(5) and (1) of the Act, in addition to those found
by the Trial Examiner, we shall order it to cease
and desist therefrom, and to take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to
bargain in good faith at the bargaining table with
the Union that represented a majority of the
employees in an appropriate unit. We, therefore,
shall order that the Respondent cease and desist
from negotiating with the Union in bad faith and
with no intention of entering into any final or
binding agreement. We shall further order the
Respondent, upon request, to bargain with the
Union as the exclusive representative of the
employees in the appropriate unit. It has also been
found that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally reducing the
existing vacation benefits of employees in the
appropriate unit. Accordingly, we shall order that
the Respondent cease and desist therefrom and
restore to affected employees their previously
existing vacation benefits5 and make them whole for
any loss they may have incurred as a result of the
Respondent's illegal conduct. The amount due each
employee shall bear interest at the rate of 6 percent
per annum from the date such vacation was payable
under the Respondent's program which existed prior
to October 19, 1967, until paid."
In view of the Trial Examiner's finding which we
have affirmed, that the Respondent unilaterally
bargained with its body shop employees in violation
of Section 8(a)(5) and (1) of the Act, we shall order
that the Respondent cease and desist from
bargaining directly with such employees, and, upon
request, bargain with the Union with regard to the
wages, hours, and other terms and conditions of
such employees.
AMENDED CONCLUSION OF LAW
The following is substituted for the Trial
Examiner's fifth Conclusion of Law:
"5. By negotiating in bad faith with no intention
of entering into any final or binding
collective-bargaining agreement with the Union as
the exclusive bargaining representative of its
employees in the aforesaid appropriate unit, by
refusing to unconditionally furnish the Union with
information concerning the details of its
profit-sharing and retirement plan, and by refusing
to bargain with the Union with regard to the wages,
hours, and other terms and conditions of
employment of its body shop employees, the
Respondent has engaged in unfair labor practices
'Intercoastal Terminal , Inc , etc , supra at 362
'Cf Star Expansion Industries Corp, 164 NLRB 563
within the meaning of Section 8(a)(5) and ( 1) of the
Act. By unilaterally reducing the existing vacation
benefits of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and ( 1) of the
Act."
ORDER
Pdrsuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Peter Satori Company, Ltd., Pasadena, California,
its officers, agents, successors, and assigns, shall-
1. Cease and desist from.
(a) Refusing to bargain collectively in good faith
with the Union, International Association of
Machinists District Lodge 94, as the duly designated
collective-bargaining representative of employees in
the appropriate unit certified by the Board on
December 13, 1966.
(b) Refusing to bargain with the Union with
regard to the wages, hours, and other terms and
conditions of employment of its body shop
employees.
(c) Refusing to bargain in good faith with the
Union by failing to provide information concerning
the details of its profit-sharing and retirement plan.
(d) Refusing to bargain in good faith with the
Union by unilaterally reducing the existing vacation
benefits of employees in the appropriate bargaining
unit.
(e) In any like or related manner interfenng with
the right of employees to self-organization, to form
labor organizations, to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of their
own choosing and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities, except to the extent 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
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively in good
faith with International Association of Machinists
District Lodge 94, as the exclusive bargaining
representative of all employees in the aforesaid
appropriate collective-bargaining unit, and embody
all understandings reached in a signed agreement.
(b) Promptly and unconditionally furnish the
Union the requested information concerning the
details of its profit-sharing and retirement plan.
(c) Restore to employees their previously existing
vacation benefits and make them whole for any loss
of benefits they may have incurred in the manner
provided above in the section herein entitled, "The
PETER SATORI CO., LTD. 39
Remedy".
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts of vacation pay or other benefits due under
the terms of this Order.
(e) Post at its plant at Pasadena, California,
copies of the attached notice marked "Appendix."'
Copies of said notice on forms provided by the
Regional Director for Region 31, shall, after being
duly signed by the Respondent, be posted by it
immediately upon receipt thereof, and be maintained
for a period of 60 consecutive days thereafter in
conspicious places, including 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.
(f) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
'in the event this Order is enforced by a decree of a United States Court
of Appeals , there shall be substituted for the words, "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL, upon request, bargain collectively with
International Association of Machinists District Lodge
94 as the exclusive representative of our employees in
the appropriate unit described below and embody all
understandings reached in a signed agreement
The appropriate unit is: all service department
employees including automotive line mechanics, their
apprentices and helpers; front-end mechanics; brake
mechanics; tune-up mechanics; air conditioning
mechanics ; automatic transmission mechanics;
heavy-duty mechanics; lubrication mechanics;
automotive electricians; used car get-ready mechanics;
new car get-ready mechanics; new car detail mechanics;
paint and body mechanics, their apprentices and
helpers, service writers; pick-up delivery men; lot men;
parts pick-up and delivery men; parts men; and
dispatchers, excluding all office clerical and professional
employees, salesmen, guards and supervisors
WE WILL promptly and unconditionally furnish to
the above-named Union all information regarding our
pension plan heretofore requested by it.
WE WILL restore to employees their previously
existing vacation benefits and make them whole for any
loss they may have incurred because of our previous
withdrawal of those benefits.
WE WILL NOT negotiate wage increases directly with
employees while wage negotiations are pending with
said Union.
WE WILL NOT in any like or related manner interfere
with the right of our employees to self-organization, to
form labor organizations , to join or assist the
above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such
activities , except to the extent such right may be
affected by an agreement requiring membership in a
labor organization , as authorized in Section 8(a)(3) of
the Act.
Dated By
PETER SATORI Co., LTD
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 213-688-5800.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Los Angeles, California, on February 13, 14 and
15, 1968 The complaint, issued November 9 and based
upon charges filed August 22 and October 23, 1967, by
International Association of Machinists District Lodge 94,
herein called the Union, alleges that Respondent, Peter
Satori Co., Ltd , had engaged in unfair labor practices
within the meaning of Section 8(a)(5), 8(a)(3), and,
derivatively, 8(a)(1) of the Act. Briefs have been submitted
by the General Counsel and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Peter Satori Co., Ltd. is a California corporation
maintaining its principal office and place of business at
Pasadena, California, where it is engaged in the retail sale
and service of imported automobiles . It annually sells and
distributes products valued in excess of $500,000 and
purchases and receives goods valued in excess of $50,000
from suppliers who receive same directly from states other
than the State of California and from foreign countries. I
find that the operations of Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists District Lodge
94 is a labor organization within the meaning of Section
2(5) of the Act.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III 1HE UNFAIR LABOR PRACTICES
A Introduction , The Issue
The Union was certified on December 13, 1966, as the
representative of Respondent's service department
employees, including automotive line mechanics, their
apprentices and helpers; front-end mechanics; brake
mechanics; tune-up mechanics, air conditioning mechanics,
automatic transmission mechanics; heavy-duty mechanics,
lubrication mechanics; automotive electricians, used car
get-ready mechanics; new car get-ready mechanics; new
car detail mechanics; paint and body mechanics, their
apprentices and helpers; service writers, pick-up and
delivery men, lot men, parts pick-up and delivery men,
parts men, and dispatchers, excluding office clerical and
professional employees, salesmen, guards and supervisors.
Following the certification of the Union, the parties
held 14 bargaining meetings between April 13 and
October 18, 1967, during which many proposed contracts
and counterproposals, written and oral, were exchanged
The General Counsel alleges that Respondent refused to
bargain in good faith by (1) refusing to furnish the Union
with information concerning the details of a profit-sharing
and retirement plan previously established by Respondent;
(2) negotiating with the Union in bad faith without any
intention to consummate a contract, (3) refusing to
bargain with Respondent's body shop employees, and (4)
unilaterally changing existing vacation benefits The last
specified item refers to changes made on October 19,
1967, one day after the bargaining sessions ended.
Respondent contends that it made specified concessions
during the course of bargaining and that it put its final
offer into effect after rejection by the Union and arrival at
an impasse on October 18, 1967 It further alleges that a
designated commissioner of the Federal Mediation and
Conciliation Service announced an impasse and stated
that further negotiating meetings were not in order.
B Refusal to Bargain
1. Appropriate unit and majority representation
therein
It is undisputed, and I find, that the above-described
unit is a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
It is also undisputed, and I further find, that the Union
has been and was the representative of said employees at
all times material herein for the purposes of collective
bargaining, within the meaning of Section 9(a) of the Act.
2 Prefatory statement
Initially, it is perhaps in order to set forth what is not
treated herein. The General Counsel has argued
extensively that Respondent's course of conduct
throughout the 14 bargaining meetings constituted
bad-faith bargaining with no intention to enter into a
collective-bargaining contract, this reflecting a determined
effort to frustrate the collective-bargaining process.
The record does disclose hard bargaining by a
manifestly skilled negotiator on the part of Respondent
and it is a truism that bargaining on an initial contract, as
is the case here, will establish the framework upon which
future negotiations will be conducted Stated otherwise,
the simple fact is that an employer will understandably
bargain vigilantly in this posture And I see nothing amiss,
contrary to the General Counsel, in the employer
bargaining, as did Respondent, on the basis of agreement
on an entire contract rather than on a piecemeal basis.
See Taylor Instrument Companies, 169 NLRB No 28.
Inasmuch as, in my belief, the evidence preponderates
in favor of the General Counsel in two specific areas, and
the remedy would be identical, I deem it superfluous and
unduly extensive of this decision to consider the broader
theory I refer specifically to the Union's efforts to obtain
data concerning Respondent's profit-sharing and
retirement plan and, further, to Respondent's direct
negotiations with employees of its parts department '
3 Bargaining on the profit-sharing and retirement
program
Since approximately 1953, Respondent has had a
noncontributory profit-sharing and retirement plan to
which it annually allots 50 percent of gross profits before
taxes or 15 percent of salaries, whichever is the lower
figure
The Union's original contract proposal provided that
Respondent participate in the Union's existing pension
trust fund,' which provided for payment into the fund of a
stated sum per day or week for each covered employee
Present at a meeting on June 13, 1967, when the topic
was discussed, as at all meetings, were President Peter
Satori of Respondent, its counsel herein, H. Burdette
Fredricks, and consultant Richard Cords. The Union was
represented at all meetings by its business representative
and negotiator, Charles Edwards, and by a shifting group
of union members and Business Representative Thomas
Burniston
Edwards testified that President Satori declared on
June 13 that Respondent preferred its own plan because
the Union's plan did not cover nonunit employees
Edwards replied that the Union could cover nonunit
employees and furnished Satori with a brochure outlining
the details of its plan
Edwards then asked how much money Respondent
contributed to its plan and Satori outlined the 50-15
percent formula. Edwards stated that covered employees
should know their potential under Respondent's plan. He
asked that Respondent furnish him with the amount
credited to each employee so that he would be in a
position to advise the covered employees if this plan was
equal or superior to the Union's plan, adding that if this
were the case, the Union would withdraw its demand for
its own plan.
Satori replied that each employee could find out his
allotted share from the office manager and that the Union
did not need these details, the record also discloses that
this figure is supplied to each employee at Christmas.
Edwards pointed out that he wished this information only
with respect to those in the unit. He also explained that
employment with other employers covered by the Union's
plan could be counted as credited service.
The subject arose again at the next meeting on July 17.
Edwards reminded Respondent's negotiators of his
previous request for this data. Fredricks refused to supply
each employee's balance. Edwards responded that absent
this data they could not bargain intelligently on the issue.
He explained that he wished to compare benefits due
under the allotted amounts under the respective plans and
'As I read the complaint, the last item was not specifically alleged as
such However, it was litigated without objection and 1 consider it to be
before me for decision
More specifically , the International Association of Machinists
Labor-Management Pension Fund
PETER SATORI CO., LTD. 41
that this could not be determined from Respondent's
brochure which described the plan. He again stated that
the Union would withdraw its plan if the companson of
benefits demonstrated that Respondent's plan was equal
or superior to the plan of the Union. Fredericks repeated
that this specific data was of no concern to the Union.
According to Edwards, Satori then offered to let him
proceed to Respondent's office and inspect all of the
employee accounts but "not take notes", if he would give
his word of honor not to divulge this information to
anyone. Edwards refused, stating that he wanted to sit
down with the Union's attorney and evaluate the potential
benefits under the respective plans. Both Satori and
Fredricks then stated that this data would not be provided
if Edwards did not pledge his word of honor as requested.
Copies of Respondent's plan and the accompanying
trust instrument were given to the Union after the August
11 meeting. At the August 21 meeting, Edwards pointed
out that he was not asking for the full value of the trust
fund but rather where each unit employee stood with
respect to his potential pension and he renewed his request
for this specified data.
On September 18, Edwards again asked for this
material. Satori responded that if the balance of each was
made public this would cause unrest among the
employees' Fredricks repeated that this was of no concern
of the Union, adding, however, that Edwards could see the
figures if he gave his word of honor not to reveal the
amounts to anyone; Edwards refused.
Again, at a meeting on September 29, Edwards
repeated that if he had the respective sums allotted under
Respondent's plan and union counsel advised, after a
study, that benefits thereunder would be equal or superior
to those under the Union's plan, the Union would settle
for Respondent's plan
In an effort to shorten the hearing, the parties
stipulated that the testimony of Business Representative
Burniston and employee Dimling would be substantially
the same as that of Edwards and that the testimony of
Respondent's co-negotiator, Cords, would follow that of
Negotiator Fredricks, described below.
Burniston , in rebuttal, testified that Edwards requested
this trust fund data at almost every meeting. At one
meeting, above placed by Edwards on July 17, Satori
offered Edwards the data in his office if he gave his word
of honor to reveal it to no one and to take no notes. On
the other hand, Burniston did not recall whether Satori
offered to show each employee's balance or the entire
trust fund Be that as it may, Satori admitted herein, in
agreement with Fredricks, and I so find, that the main
issue here was Edwards' request for a breakdown of the
balance of each employee in the fund. Satori at the most
offered this breakdown to Edwards in confidence "for his
own use" only. Edwards responded that he wanted this
data officially and not confidentially. To this, Satori
replied that he wanted to keep the amount of each
employee confidential and that if Edwards wished to
obtain or to publish this data he should obtain it from the
respective employees.
The case for Respondent was presented by Fredricks
and his version does not differ too much from that of
Edwards. His testimony was silent as to the June 13
meeting and as to details of the July 17 meeting, except
for the request by Edwards for the trust documents.
Fredricks placed the discussion of September 18
described by Edwards on September 15. The latter
'Just why this result would follow is not indicated
"again" asked for the exact amounts each employee had
in his fund . Satori responded that this was an improper
request and an invasion of the privacy of the respective
employees . He then offered to reveal the total
contributions to the fund each year by Respondent and
added that an individual breakdown would be given to
each employee who wished it. Edwards replied that this
was insufficient.
On September 19, counsel for the Union wrote to
Fredricks as follows:
Following extensive correspondence throughout June
and July, 1967 , the above-named company did furnish
what purports to be a copy of an Employee Profit
Sharing and Retirement Plan
At this time I request , on behalf of my clients, that
you furnish a statement as to the amount of monies
contributed by the employer under such plan and for
the account of each individual employee.
Could you also state if at all possible the amount of
such monies they have vested as to each of the
employees . Such information is deemed necessary in
order that the Union be enabled to intelligently
negotiate with regard to the entire area of pensions and
profit sharing
On October 11, Fredricks replied-
In reply to your recent communication relative to the
above entitled matter whereby you requested that the
company submit to your office a complete breakdown
of the funds for each individual employee involved in
the company trust fund , please be advised that we have
repeatedly informed Mr Charles Edwards of the
International Association of Machinists that we did not
feel it was proper to submit the information on mass
[sic] that he had requested, but that the information
would be available to him at the offices of the company
provided that he could keep the individual accounts
confidential so that one employee would not know what
other employees have in the trust account as we feel
that that information is personal to the employee lust
as much as an individual savings account We have also
offered Mr . Edwards the information if he would have
each member of the bargaining unit request same from
the office. To date Mr. Edwards has failed and refused
to procure the available information in either of the
suggested ways.
Accordingly , we must respectfully refuse to
communicate the information in the manner it was
requested . We hereby reoffer to have the information
submitted , however, as set out in the paragraph above.
At the October 18 meeting, with a conciliation
commissioner in attendance , Edwards renewed his demand
for the trust fund data and Fredricks , as he testified,
"again renewed our offer to show him the annual amount
contributed to the trust fund and to submit [to] each
employee - though we do it annually - the amount that
they have now in their trust fund ." Fredricks later
testified that he told Edwards that the amount each had in
his own account was his own business and "confidential."
To sum up, according to Edwards , Satori variously
wanted a pledge that the data would be confidential
because its divulgence would cause unrest or stated that
no notes were to be taken . Burniston confirmed the last
position which, according to Edwards , was taken on July
17.
Satori supported Edwards, variously testifying that
these individual amounts would be provided if kept
confidential " for his own use", that he did not feel at
liberty to divulge to Edwards the balance of each in the
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trust fund, and, finally, that he wanted to keep the
balance of each confidential and leave it to each employee
to decide whether his balance would be disclosed.
In the exchange of correspondence with the Union,
Fredricks took a mildly broader position, to wit, that the
data would be available to Edwards at the offices of
Respondent if the individual amounts were kept
confidential, but also raising the requirement that each
employee request his balance.
This, in essence, may be characterized as a fluid
position on the part of Respondent but, nevertheless, at no
time did Respondent agree to meet the request of the
Union for the data, except with restrictions as specified.
Realistically speaking, the simple answer is that
Respondent was unwilling to turn over this information
unqualifiedly to a responsible agent of the Union for use
in comparison of the two plans. A requirement that it
would be available only to Fredricks "in confidence" at
the offices of Respondent, or with no notes taken or that
it be submitted only to the respective employees placed
Edwards in the unworkable position of being unable to
evaluate Respondent's proffered plan, fraudulently
removing the data or memorizing it, hardly a tenable
position.
Conclusions
Because, in the posture most favorable to Respondent,
it refused to give union officials the data concerning the
individual fund balances for analysis , evaluation and
comparison with the union proposals , Respondent must be
faulted herein. It is axiomatic that profit-sharing and
pension plans are a part of wages and therefore a
mandatory subject of bargaining Section 8(a)(5) of the
Act imposes an obligation upon an employer to furnish,
upon request , "all information relevant to the bargaining
representative ' s intelligent performance of its function "
Wilson Athletic Goods Mfg. Co, Inc., 169 NLRB No.
82.
The pertinent issue, therefore , is the relevance of the
requested information to the Union 's bargaining demands.
The Union had come forward with - its own
well-established plan and Respondent in turn pointed to
its own . Knowledge of the amounts credited to each
employee would seem critical to a comparison and
analysis of the potential benefits under the respective
plans; indeed , the Union readily offered to abandon its
request for its own plan if the analysis disclosed that
Respondent 's plan provided equal or superior benefits.
As an example of the relevancy . of a comparison of the
plans, the General Counsel points out that one feature of
Respondent 's plan is it provision for payment of benefits,
unless otherwise requested , in quarterly installments of 5
percent of the total unit until depleted , viz, over a
maximum period of 5 years; moreover, the Union's plan
gives qualifying seniority credit for employment with other
employers contributing to its own fund , manifestly a
benefit not present in Respondent 's plan.
While the claim that employees may prefer financial
anonymity in this area is understandable , such individual
desires have long gone by the wayside in the face of
collective bargaining in behalf of the interests of the entire
bargaining unit I find that the duly requested and refused
data was relevant to bargaining upon the respective
retirement programs . The refusal to furnish the data
served only to frustrate meaningful bargaining in this
indicated area.
I find that Respondent in this respect has defaulted in
its bargaining obligation by withholding from the Union
relevant information concerning the operation of its own
plan. I further find that Respondent has thereby engaged
in unfair labor practices within the meaning of Section
8(a)(5) and, derivatively, Section 8(a)(1) of the Act See
N L R B v. Goodyear Aerospace Corporation, 388 F.2d
673 (C A. 6), Cone Mills Corp, 169 NLRB No. 59;
Weber Veneer and Plywood Co, 161 NLRB No. 97, B.
F. Diamond Construction Co., 163 NLRB No. 25,- and
The Electric Furnace Co, 137 NLRB 1077.
4. Undercutting the Union
Preceding and during the contract negotiations, the
employees of Respondent's parts department were paid a
fixed salary without any commission. The compensation
for this group was taken up at several negotiating
meetings, including those of September 18 and September
29. This discussion included a contract offer by
Respondent on September 18 providing a new form of
compensation, namely, a smaller salary plus commission
However, during the negotiations, Respondent went
directly to the employees of the parts department with
such a proposal. According to parts man David Hingst,
John Ekman, head of the department spoke with the men
in April or May, shortly after negotiations started. He
proposed that they be paid a monthly salary of $350 a
month plus 1 percent commission, rather than the existing
salary of $425 or $450 a month without commission. He
promised that this would constitute an increase for them
John Ringe of the parts department similarly testified that
some time before October 19, Ekman proposed putting
such a plan into effect in discussions with several
employees. I find that this was in essence the plan later
put forward by Respondent on September 18.
As noted, negotiations collapsed on October 18 and
Respondent did install this plan on October 19. It has
resulted in a small increase for Hingst and no real change
of earnings in the case of Ringe.
It is readily apparent that in the face of a designated
bargaining representative actively engaged in .contract
negotiations, Respondent negotiated directly with its
employees concerning wage changes, contrary to its
obligation to deal : with their bargaining representative. I
find that by negotiating with its employees concerning
wages at a time when wage negotiations with the Union
were pending, Respondent took steps which tended to
undermine the designated bargaining representative,
contrary to its obligations under the Act I find that
Respondent has thereby engaged in conduct violative of
Section 8(a)(5) and 8(a)(1) of the Act. Medo Photo
Supply Corp v. N.L R.B., 321 U.S. 678, 684.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III and
occurring in connection with its operations set forth in
section 1, 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 thereof.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
PETER SATORI CO., LTD. 43
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that Respondent unconditionally
furnish the Union the requested information on its pension
plan, refrain from negotiating wage increases directly with
employees when wage negotiations with the Union are
pending, upon request, bargain with said Union
concerning rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understanding is
reached, embody same in a signed agreement
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1 Peter Satori Co., Ltd. is an employer within the
meaning of Section 2(2) of the Act
2. International Association of Machinists District
Lodge 94 is a labor organization within the meaning of
Section 2(5) of the Act.
3. All service department employees of Respondent,
including automotive line mechanics, their apprentices and
helpers; front-end mechanics, brake mechanics, tune-up
mechanics, air conditioning mechanics; automatic
transmission mechanics, heavy-duty mechanics, lubrication
mechanics; automotive electricians; used car get-ready
mechanics, new car get-ready mechanics; new car detail
mechanics; paint and body mechanics, their apprentices
and helpers; service wnters; pick-up and delivery men; lot
men; parts pick-up and delivery men; parts men; and
dispatchers, excluding all office clerical and professional
employees, salesmen, guards and supervisors, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. International Association of Machinists District
Lodge 94 has been since December 13, 1966, and now is,
the exclusive representative of the employees in the
above-described appropriate unit within the meaning of
Section 9(a) of the Act
5 By refusing to unconditionally furnish the Union the
respective balances accrued to employees under its pension
plan and by negotiating wage increases directly with
employees while wage negotiations were pending with the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]