Putnam Buick, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1986

280 N.L.R.B. 868 (N.L.R.B. 1986)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Putnam Buick, Inc. and International Association of
Machinists and Aerospace Workers , AFL-CIO,
District Lodge 190, Local Lodge 1414 . Case 20-
CA-18523
24 June 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 28 December 1984 Administrative Law
Judge George Christensen issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by attempting to deal directly with its
employees within the Mechanics and Service Writ-
ers units concerning changes in the employees'
terms and conditions of employment. The Re-
spondent excepts to this finding, and argues that its
communications to the employees were privileged
under Section 8(c). For the reasons set forth here
and in United Technologies Corp., 274 NLRB 1069
(1985), affd. 789 F.2d 121 (2d Cir. 1986), and
United Technologies Corp., 274 NLRB 609 (1985),
affd. 789 F.2d 121 (2d Cir. 1986), we agree with
the Respondent.
The Respondent, between 1968 and 1983, had
been represented in contract negotiations by the
Peninsula Automobile Dealers Association
(PADA). The Respondent advised the Union that
effective 15 July 1983 it would bargain with the
Union on an individual basis. At some point before
the Union and the Respondent exchanged contract
proposals, the Union called the Respondent's em-
ployees into a meeting with employees from six
other dealerships and took a strike vote. In fact, at
the time the Respondent and the Union held their
first negotiation session on 30 August 1983,1 the
Union was then on strike against various dealer-
ships still PADA members.
As set forth more fully in the judge's decision,
the dispute centers on communications which oc-
curred between the Respondent and its employees
' All dates hereinafter are 1983
during contract negotiations . After the conclusion
of the initial negotiating session with the Union on
30 August, the Respondent called its employees to-
gether and passed out copies of the Respondent's
contract proposals and the Union's telephone mes-
sage canceling the afternoon meeting . Joseph
Putnam, the president of the dealership, after read-
ing the proposals aloud, and describing the benefits
to be derived in accepting them, asked Eric Pro-
dinger, an employee leader and local union trust-
ee, 2 what he thought of the proposals.3 Prodinger
did not directly address the proposals' merits, but
questioned why the Company was bargaining on
an individual basis when it had previously been
represented through PADA. Putnam replied that
the comment "pisses me off," that he wanted only
his employees voting on his proposal; the Union
was going to let the employees vote on the propos-
al; and stated "if you don't accept it, then you
might be on strike."
A month later, the Respondent's vice president,
Corso, called the employees to another meeting to
tell them that there would be no more negotiating
sessions until President Putnam was released from
the hospital. He also declared, "[I]t's up to you
guys what you want, an IRA or a pension. If you
want an IRA, I am willing to fight for you." The
Respondent's IRA proposal had been offered to the
Union 20 August.
On 9 November Putnam called still another
meeting of unit employees. He introduced a repre-
sentative from Merrill Lynch and an insurance
broker. The Merrill Lynch representative explained
the benefits of an Individual Retirement Account,
while the insurance broker explained the hospital
surgical and insurance plan in which the Respond-
ent was interested, assuring the employees that it
would equal the benefits the employees were then
currently receiving.
As the Supreme Court has declared, "The Na-
tional Labor Relations Act does not countenance
negotiating with individuals when they have bar-
gaining representatives." Medo Photo Supply Corp.
v. NLRB, 321 U.S. 678, 683-685 (1944). However,
Section 8(c) of the Act provides that:
(c) The expressing of any views , argument,
or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an
unfair labor practice under any of the provi-
sions of this Act, if such expression contains
2 A union trustee is the custodian of the Local Union's property A
trustee verifies the incoming bills, payments, and the audit
3 Prodinger conceded in his testimony that it was "obvious" that the
"purpose" of the meeting was not to negotiate with the employees but to
bong them up to date on the status of negotiations
280 NLRB No. 101
I
PUTNAM BUICK
no threat of reprisal or force or promise of
benefit.
The judge acknowledged that under Section 8(c)
an employer is entitled to communicate noncoerci-
vely with its unit employees during collective-bar-
gaining negotiations .4 Indeed, as the Board recent-
ly stated, "[e]mployees ought to be fully informed
as to all issues relevant to collective-bargaining ne-
gotiations and the parties' positions as to those
issues . We believe employees are fully capable of
evaluating the relative merits of those positions for
themselves."5 Nonetheless, violations of Section
8(a)(5) will be found if employer communications
with unit employees during collective-bargaining
negotiations are coercive or invite direct bargain-
ing between the employer and the employees.6
The judge reasoned that the Respondent exceed-
ed its 8(c) rights and violated Section 8(a)(5) and
(1) of the Act because it denigrated the union rep-
resentatives, conveyed the impression that the Re-
spondent and not the Union was advancing the em-
ployees' interests, argued the merits of the Re-
spondent's proposals, implied that the failure of
union representatives to accept its proposals would
mean that employees would have to strike in sup-
port of the union proposals, solicited employees'
views of the Respondent's proposals, and implicitly
urged employees to communicate their views on
the proposals to the union representatives.
Contrary to the judge, we do not find that the
facts in this case establish that the Respondent en-
gaged in unlawful direct dealing with the employ-
ees. Nor, in our view, did the communications tend
to undermine the Union's representative status. As
set forth above, the Respondent's mechanics, along
with the employees of six other dealerships, had al-
ready taken a strike vote on the PADA contract
proposals. In fact, the Union was already on strike
against the other dealerships. Thus, when the Re-
spondent called its unit employees together after
the 30 August negotiating session with the Union,
it did so to inform them of the specific content of
proposals the Respondent had already presented to
the Union, so that there would be no confusion or
misunderstanding on which proposals the employ-
ees would be voting. Given the fact that some of
these employees had earlier participated in voting
on the PADA proposal, it was entirely reasonable
for the Respondent to report directly to its em-
ployees on the status and the content of the negoti-
ations.
4 Procter & Gamble Mfg Co, 160 NLRB 334, 340 (1966)
s United Technologies Corp, above, 274 NLRB 1069, 1074 ( 1985), see
also United Technologies Corp, above, 274 NLRB 609 (1985)
' See, e g, Mashkin Freight Lines, 272 NLRB 427 (1984), Friederich
Truck Service, 259 NLRB 1294 (1982)
869
As stated earlier, even though he alone was
asked to comment on the Respondent' s proposals,
trustee Prodinger conceded that the Respondent
was not trying to bargain with the employees in
the 30 August meeting . In the subsequent October
meeting, Vice President Corso made the statement
that if employees wanted proposed increases in
company contributions for their pensions to go into
an IRA established for each employee (a proposal
already made to the Union), rather than into the
union pension fund, he would "fight" to get the
IRA. This statement was made in the context of
ongoing negotiations with the Union and was an
implicit suggestion that the employees inform the
Union if they wanted the IRA. Nor do we view
the presentation in November by the Merrill
Lynch representatives as support for finding a vio-
lation. Again, the Respondent had already present-
ed the proposals to the Union at the bargaining
table, and was merely giving a more detailed expla-
nation to employees who might not otherwise un-
derstand fully the substance of the proposals.
Finally, Putnam's statement that, if his proposals
were not accepted, the employees might be on
strike acknowledges a realistic possibility given the
strike vote the Union conducted 6 weeks earlier
among the Respondent's employees and those from
the six PADA dealerships and the ongoing PADA
strike. Under similar circumstances, the Board in
United Technologies Corp.7 found that an employer
did not engage in unlawful direct dealing with its
employees when it placed a full-page editorial ad-
vertisement in the local newspaper describing its
offer to the union and urging employees to "weigh
the company's final offer against the alternative of
a strike." Similarly, we do not view Putnam's com-
ments here as coercive.
Accordingly, based on the foregoing, we find
that the Respondent has not attempted to deal di-
rectly with its unit employees. We shall therefore
dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER JOHANSEN , dissenting.
Contrary to the majority, I agree with the judge
that the Respondent violated Section 8(a)(5) be-
cause the Respondent's statements invited a bar-
gaining exchange between the Respondent and its
employees.
The Respondent's president, Putnam, presented
the Company's proposals to the employees at a 30
August meeting, and described how the employees
' 274 NLRB 1069 (1985), affd 789 F 2d 121 (2d Cir. 1986)
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would benefit by accepting these proposals.
Putnam then singled out employee Eric Prodinger
and put him on the spot by engaging in a bargain-
ing exchange with him over the merits of the pro-
posals despite Prodinger's unfamiliarity with the
issues . Thus, Putnam first solicited Prodinger's as-
sessment of the proposals in front of the assembled
employees , then chastised him for his response, and
then threatened the employees that if they did not
accept the Company's proposals they "might be on
strike."
Any invitation to engage in a dialogue on the
relative merits of the proposals should have been
directed to the collective-bargaining representative
rather than to the employees. The fact that Pro-
dinger was a trustee does not in any way change or
modify the character of the Respondent's coercive
conduct or its object, because the fact remains that
Prodinger was a rank-and-file employee vis-a-vis
the Respondent; he was not a member of the
Union's bargaining committee.
Further, it was the Respondent who planted the
threat of a strike in the minds of unit employees
only hours after its first negotiating session with
the Union. This coercive statement was made when
Putnam voiced displeasure with Prodinger's solicit-
ed comments . By way of explanation, the majority
asserts that, before its meeting with employees, the
Union had already conducted a strike vote among
mechanics at Putnam and six other dealerships.
Further, at the time of the meeting, other employ-
ees represented by the Union were already on
strike against various other PADA dealerships.
Given this context, according to the majority, Put-
nam's comments constituted a lawful exercise of his
right to communicate with his employees. But the
Respondent had chosen to bargain separately from
PADA, thus the PADA negotiations had no direct
relationship to the Respondent's individual bargain-
ing. It was the Respondent who raised to employ-
ees the possibility of a strike on the very day its
separate negotiations for a new contract com-
menced . In this context, President Putnam's re-
marks must be deemed coercive.
The Respondent's appeal to its employees to
engage in direct bargaining was further compound-
ed in early October when Vice President Corso
called the unit employees together to inform them
that contract negotiations were being temporarily
suspended while Putnam was in the hospital. How-
ever, Corso told employees that in the meantime, if
they wanted proposed increases in company contri-
butions for their pensions to go into an IRA estab-
lished for each employee, rather than into the
union pension fund, he would "fight" to get the
IRA. Such a face-to-face appeal contemplated, by
its terms, direct discussions between the Respond-
ent's vice president and the employees. Corso's
"it's up to you" remarks clearly invited employees
to discuss with him their desires regarding the
IRA. Only by this process would he know whether
to "fight" for an IRA.
The context of this case is vastly different from
that found in United Technologies.' There, the par-
ties had a long and fruitful history of bargaining
one-on-one. Here, the Respondent had always bar-
gained through PADA, the multiemployer group
representative; this was its first attempt at bargain-
ing one-on-one with the Union. In its zeal to wrest
control of its destiny from others and speak for
itself, the Respondent took on the role rightfully
belonging to the Union. This was no implicit sug-
gestion for employees to go to the Union but,
rather, was an explicit attempt to convince employ-
ees that the Respondent was more interested than
the Union in their welfare. Thus, Corso's remarks
were an attempt to reach agreement on an issue
with employees rather than with their chosen rep-
resentative and in the process undermined the
Union's status as the collective-bargaining repre-
sentative.
The 9 November meeting with the Merrill
Lynch and insurance representatives is yet another
example of the Respondent's direct dealing with
the employees. The Respondent engaged the serv-
ices of salespersons in the securities and insurance
fields in an effort to have them explain and sell the
Respondent's proposals to the employees. This
effort was misplaced. Rather than direct these pres-
entations to the union negotiators who were in a
position to evaluate, accept, and recommend the
proposals to the employees, and who alone had au-
thority to act,2 the Respondent bypassed the Union
and made its appeal directly to the employees.
Accordingly, the Respondent 's statements to em-
ployees about going on strike and about an IRA
unlawfully undermined and bypassed the Union. I
also find that the solicitation of Prodinger's com-
ments on the Respondent's proposals, chastising
him for questioning the Respondent' s bargaining
tactics, and the presentation by brokerage and in-
surance salesmen constituted direct bargaining with
individual employees rather than with their desig-
nated bargaining representative, all in violation of
Section 8(a)(5) of the Act.
1 274 NLRB 609 (1985), affd 789 F 2d 121 (2d Cir. 1986)
2 Pursuant to Sec 9(a) the Union is the exclusive bargaining represent-
ative and that imposes "the negative duty to treat with no other " NLRB
v Jones & Laughlin Steel Corp, 301 U S 1, 44 (1937)
PUTNAM BUICK
Donald R. Rendall, Esq., for the General Counsel.
James A. Carter, Esq. (Berman & Carter), of San Francis-
co, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On May 23, 1984, I conducted a hearing at San Francis-
co, California, to try issues raised by a complaint issued
on January 11, 1984, based on a charge filed by Local
Lodge 1414, an affiliate of District Lodge 190 and the
International Association of Machinists and Aerospace
Workers, AFL-CIO (Union) on November 14, 1983.£
The complaint alleged that Putnam Buick, Inc. (Com-
pany) violated Section 8(a)(1) and (5) of the National
Labor Relations Act (Act) by attempting to undermine
the Union's status as the collective-bargaining representa-
tive of its employees within two bargaining units , bypass
the Union in negotiations over changes in the unit em-
ployees' wages, and interfere with, restrain, or coerce the
unit employees' exercise of their Section 7 rights under
the Act, through comments by its officers at meetings
with the employees which disparaged the Union, and
conveyed the message the Company was representing
their best interests, that acceptance of changes in their
wages the Company was proposing in negotiations with
the Union was in their interest, and that they might have
to strike if the Union did not accept the Company's pro-
posal; and by urging the employees to communicate their
view of the Company's proposals to the Union, soliciting
the view of an employee leader concerning the Compa-
ny's wage proposals, and requesting a copy of the pen-
sion plan covering the unit employees.
The Company in its answer to the complaint denied
committing any violation of the Act and denied that at
all times since 1968 the Union has been and is the exclu-
sive representative of its employees within the mechanics
unit and since 1973 has been and is the exclusive repre-
sentative of its employees within the service writers unit.
The issues created by the pleadings are: (1) whether
since the dates set out above, and currently, the Union
has been, and is, the exclusive representative of the Com-
pany's employees within the two units; (2) whether the
Company made the comments, statements, and requests
set out above, and (3) if so, whether the Company there-
by violated the Act.
The parties appeared by counsel and were afforded
full opportunity to adduce evidence, examine and cross-
examine witnesses , argue, and file briefs. Both counsel
argued orally and elected not to file briefs.
Based on my review of the entire record, observation
of the witnesses, perusal of the arguments, and research,
I enter the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted , and I find
at all pertinent times the Company was an employer en-
I Read 1983 after all further date references omitting the year
871
gaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning
of Section 2 of the Act.
II. THE UNITS AND THE UNION'S REPRESENTATIVE
STATUS
For many years the Company has been an auto dealer
employing sales and services personnel in its operations.
Between 1968 and 1983, it was a member of the Penin-
sula Automobile Dealers Association (PADA), and au-
thorized PADA to act on its behalf in bargaining with
the Union concerning the rates of pay, wages, hours, and
working conditions of certain of its employees, and to
execute contracts setting out the rates of pay, wages,
etc., of those employees.
In 1968, the Company authorized PADA to negotiate
and execute a contract on its behalf in which the Union
was recognized as the exclusive bargaining representative
of employees performing mechanical and related work
(the mechanics unit and contract) and which set forth
their rates of pay, wages, etc. In 1973, the Company au-
thorized PADA to negotiate and execute a contract on
its behalf in which the Union was recognized as the ex-
clusive bargaining representative of the employees classi-
fied as service writers, road testers , dispatchers, and
tower men (the service writers unit and contract) and
which set forth their rates of pay, wages , etc. The em-
ployees within the two units were continuously covered
by like contracts between PADA and the Union through
July 15.
Prior to commencement of negotiations between
PADA and the Union for contracts covering the unit
employees for a term commencing July 16, the Company
withdrew its membership in and authorization for
PADA to represent it for collective- bargaining purposes
and advised the Union it would bargain with the Union
as an individual over the rates of pay , wages, etc., of its
employees within the two units, effective on and after
July 16. Representatives of the Company and the Union
met thereafter to negotiate those terms.
In view of my findings (and the Company' s admission
in its answer to the complaint) that since 1968 the Com-
pany has recognized the Union as the exclusive collec-
tive-bargaining representative of its employees perform-
ing mechanical and related work (the mechanics unit),
that since 1973 the Company has recognized the Union
as the exclusive collective-bargaining representative of its
employees classified as service writers, road testers, dis-
patchers, and tower men (the service writers unit), and
that continuously since those dates, either through
PADA or directly, the Company has bargained with the
Union and executed contracts covering the wages, rates
of pay, hours, and working conditions of its employees
within those units, I find and conclude the two units
were appropriate for collective-bargaining purposes
within the meaning of Section 9 of the Act.
On the above facts, the Union's continued majority
representative status is presumed , unless that presumption
is rebutted by substantial evidence.2 In this case, not
2 Bartenders Assn. of Pocatello, 213 NLRB 651 (1974), Emerson Mfg
Co, 200 NLRB 148 (1972), and cases cited therein
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only did the Company fail to produce any evidence to
rebut the presumption, its officers testified they met and
bargained with the Union concerning the wages, etc., of
the unit employees following the July 15 expiration of
the PADA-union contracts, without ever asserting any
doubt concerning the Union's representation of a majori-
ty of its employees within the units or advancing any
grounds to support such an assertion.
I therefore find and conclude that at all pertinent times
since 1968 and 1973, including all pertinent times since
the July 15 expiration of the last PADA-union contracts
covering those employees, the Union has represented a
majority of the Company's employees within the two
units.
I also find and conclude that at all times since 1968 the
Union has been, and is, the exclusive collective-bargain-
ing representative of the Company's employees within
the mechanics unit and since 1973 of employees in the
service writers unit, within the meaning of Section 9 of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged August 30 Direct Dealing and
Solicitation
The expired PADA-union contracts required the Com-
pany to make specified monthly contributions to the
automotive industries pension fund and the PADA insur-
ance trust fund on behalf of each unit employee (to pro-
vide the employees with pension, hospital, surgical, sick-
ness , accident, and life insurance benefits) and to comply
with all the terms and conditions of the trust agreements
creating the two funds, any modifications thereof, and
any rules and regulations promulgated by the trustees
designated under the terms of the trust agreements to ad-
minister their terms.
During the morning of August 30, Joseph Putnam, the
Company's president and co-owner, and Richard Corso,
the vice president and general manager,3 met with repre-
sentatives of the Union to negotiate the terms of a com-
pany-uion contract covering the rates of pay, wages,
hours, and working conditions of the employees within
the two units on and after July 16. In the course of those
negotiations, Putnam proposed, inter alia, increases in the
Company's monthly pension contributions, but with the
condition each employee have the opportunity to elect
payment of the increases into an individual retirement ac-
count rather than the pension fund (with continued pay-
ments of the basic contribution specified in the expired
PADA-union contracts into the pension fund), and that
the Company cease making contributions into the insur-
ance fund but rather preserve the level of benefits pro-
vided under that fund through a plan of the Company's
choosing.
The negotiators broke for lunch with the understand-
ing they would resume negotiations that afternoon. Over
the luncheon recess, however, the union representatives
H The complaint alleged, the answer admitted , and I find at all perti-
nent times Putnam and Corso were officers, supervisors , and agents of
the Company acting on its behalf within the meaning of Sec 2 of the
Act
telephoned the Company's office and left a message they
would be unable to attend the planned afternoon session.
Putnam and Corso received the message when they went
to the offices after lunch.
They summoned the unit employees to a meeting.
Putnam stated he wanted to tell the employees what was
happening in the negotiations; advised them he and
Corso met with representatives of the Union that morn-
ing, presented a company proposal for new contract
terms, and planned to continue negotiations that after-
noon, but the Union canceled the meeting; passed around
the telephone message canceling the meeting and copies
of the company proposals; told the employees their rep-
resentatives said the company proposals were better than
they expected, they did not know what to do, and would
have to consult their superior; described how the em-
ployees would benefit by acceptance of the company
proposals; and urged the employees to convey their view
of the company proposals to their union representatives.
Putnam solicited a statement from employee Eric Pro-
dinger 4 concerning the merits of the company proposals.
Prodinger was reluctant to comment but, at the urging
of several unit employees, Prodinger finally responded
by asking Putnam if the company proposals the employ-
ees had before them was the Company's final offer.
Putnam replied in the negative. Prodinger then professed
an inability to understand why Putnam was bargaining as
an individual, since he previously always joined with
auto dealers in the area whose employees were repre-
sented by the Union in negotiating the wages, etc. of the
unit employees. Putnam replied that comment "pisses me
off," he wanted only his employees voting on his propos-
al, and the Union was going to have to let them vote on
it and, if they did not accept it, they might be on strike.5
B. The Alleged October Direct Dealing
In early October, Corso summoned the unit employees
to another meeting. He informed the employees Putnam
was in the hospital with a serious blood clot; that no one
knew how long Putnam was going to be confined to the
hospital; and that there were not going to be any negoti-
ations between the Company and the Union over the
terms of a new contract covering their wages, etc., while
Putnam was unavailable. He went on to state it was
going to be up to the employees to decide whether they
wanted increases in company contributions for their pen-
sions to go to the pension fund or into an IRA estab-
lished for each employee, and he would fight to get the
latter for them if that was what they wanted.6
" Prodinger held various offices in Local 1414, at this time he was a
trustee
5 These findings are based on the testimony of Prodinger, who im-
pressed me as a sincere and reliable witness, plus testimony by Putman
and Corso, which substantially corroborated Prodmger's testimony
6 These findings are based on the testimony of Prodinger and Corso.
While Corso denied making the latter statement, I credit Prodinger's tes-
timony to that effect, as noted above, Prodinger, a current employee, im-
pressed me as a sincere, reliable witness
PUTNAM BUICK
C. The Alleged Early November Direct Dealing
In early November, Corso approached Prodinger at
his work station and told Prodinger the Union and Serra-
monte Oldsmobile (another auto dealer in the area) had
reached a settlement on new contract terms which in-
cluded the establishment of IRA plans for each employ-
ee, in addition to the union pension plan. Prodinger re-
plied an IRA and a pension plan were two different
things and the pension plan was not a union pension
plan, but a multiparty plan administered by trustees se-
lected in equal numbers by the representatives of the par-
ticipating employers and the affected employees. Corso
said he would like to see the plan. Prodinger offered to
supply a copy and later did so.
D. The Alleged November 9 Direct Dealing
On November 9, Putnam summoned the unit employ-
ees to another meeting. He introduced a Merrill Lynch
representative and an insurance broker, stating the
former was an expert on IRA plans and the latter an
expert on insurance plans. The Merrill Lynch representa-
tive spoke, extolling the benefits of an IRA plan and ex-
plaining the options available; she did not make any com-
parisons between the potential income from an IRA plan,
given the size of the contributions into that plan, and in-
creased pension income based on similar contributions to
the existing pension fund. The insurance broker de-
scribed a hospital, surgical, and insurance plan the Com-
pany was interested in, assuring the employees it would
equal the hospital, surgical, and insurance benefits the
employees were receiving under the PADA insurance
trust fund. The two departed and Putnam took the floor
to announce he met with the employees' union represent-
atives earlier that day, and the negotiators were unable
to resolve their differences on the pension and insurance
issues (the Union proposed the increased pension contri-
butions offered by the Company go into the pension fund
for credit to each employee's pension account and the
Company continue its contributions into the PADA In-
surance Trust Fund to provide hospital, surgical, sick-
ness, accident, and life insurance benefits for each em-
ployee). He distributed two documents to the employees;
one was a copy of a letter from a CPA firm setting out
the tax consequences for employees establishing an IRA
account and the second reported there was a bill pending
in Congress to permit doubling the amount which an em-
ployee could place in an IRA account. Corso then took
the floor, and stated that he had examined the booklet
setting out the terms of the automotive industries pension
fund; that under its terms an employee who elected early
retirement would be penalized 6 percent for each early
year; and that if a retiree worked more than a certain
number of hours, he could lose his pension.
E. Analysis and Conclusions
At the August 30 and early October employee meet-
ings , Putnam and Corso made remarks which created the
impression the unit employees' bargaining representative
was not pursuing their interests diligently and effectively
873
and they, rather than their representative, were seeking
to advance the employees' economic interest.'
At all three general employee meetings (August 30,
early October, and November 9), Putnam and Corso
(and their invited speakers) tried to secure employee sup-
port for changes in current pension and health and wel-
fare benefit plans advanced by the Company and op-
posed by the Union, implying the employees might have
to go on strike if their representative did not accept the
changes the Company was advocating, to cause the em-
ployees to pressure their representative to accept the
Company's proposals.8 At the August 30 meeting,
Putnam also solicited employee leader Prodinger's views
concerning the Company's proposals in an obvious at-
tempt to promote direct bargaining with the employees
over their proposals. Although an employer is privileged
under Section 8(c) of the Act to inform his employees of
the details of proposals he has made to their collective-
bargaining representative concerning their wages, etc. (as
well as the representative's proposals) and the status of
negotiations over those proposals,9 the Board, with court
approval, has ruled he exceeds his 8(c) rights and vio-
lates Section 8(a)(1) and (5) of the Act when he deni-
grates his employees' collective-bargaining representa-
tive, conveys the impression he and not their representa-
tive is advancing their interests, argues the merits of his
proposals, implies the failure of their representative to
accept his proposals would mean they would have to
strike in support of the union proposals, solicits employee
views of his proposals, and urges the employees to com-
municate their views of his proposals to their representa-
tive (with the expectation they will pressure the repre-
sentative to accept his proposals). As the Board stated in
a leading case:
Good faith bargaining . . . requires . .. on the part
of the employer . . . recognition that the statutory
representative is the one with whom it must deal in
conducting bargaining negotiations . . . it is incon-
sistent with this obligation for an employer . . . to
seek to persuade the employees to exert pressure on
the representative to submit to the will of the em-
ployer, and to create the impression that the em-
ployer rather than the union is the true protector of
the employees' interests . . . the employer's statutory
obligation is to deal with the employees through the
r Putnam, by telling the employees on August 30 the lull in negotia-
tions was caused by their representative's cancellation of the afternoon
bargaining session and by telling the employees their representative char-
acterized his contract proposals as so much better than they expected,
they did not know what to do, and Corso, by telling the employees at the
early October meeting he would fight their representative to secure for
them the change in pension contributions the Company was advancing in
negotiations with their representative
8 This purpose was established by Putnam's urging the employees to
convey their views of the Company's proposals to their union represemta-
tive and his statement they might have to go out on strike if their repre-
sentative did not accept the Company's proposals, following his (and his
visitors') sales pitches for those proposals
9 Seneca Electric Co, 265 NLRB 1531 (1982), Ampac, 259 NLRB 1075
(1982), Semperit Pacific, Inc, 237 NLRB 478 (1978), Penasquitos Gardens,
236 NLRB 994 (1978)
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, and not with the union through the employees.
[Emphasis added.] 10
And, repeaied more recently:
Such a tactic far exceeds the permissible limits of
direct communication [and] amounts to a campaign
among unit members to exert pressure on their rep-
resentative to agree to the employer's request. Such
efforts are inconsistent with an employer's obligation to
negotiate directly with the Union and constitutes by-
passing the collective-bargaining representative. [Em-
phasis added.] 1 1
On the basis of the foregoing, I find and conclude that
in the course of conducting meetings with unit employ-
ees on August 30, in early October, and on November 9,
Putnam and Corso (and their invited speakers) made re-
marks, statements, and requests creating the impression
the Union was not pursuing the employees' interest dili-
gently and effectively, that the Company rather than the
Union was seeking to advance the employees' economic
interests, that the Company's proposals for changes in
the employees' currently effective pension and health
and welfare benefits were more to their benefit than the
Union's proposals on those subjects, and that the em-
ployees might be forced out on strike if their representa-
tives did not accept the Company's proposals, urged the
employees to communicate their views concerning the
Company's proposals to the Union, and solicited an em-
ployee leader's views regarding the Company's propos-
als. I further find and conclude that by those remarks,
statements, and requests, the speakers were attempting to
undermine and bypass the employees' collective-bargain-
ing representative and deal directly with the employees
rather than the Union with respect to proposed changes
in the employees' wages, thereby violating Section
8(a)(1) and (5) of the Act.
The foregoing findings and conclusions dispose of all
but one issue-whether, as alleged in the complaint,
Corso requested in early November that Prodinger
supply him with a copy of the current effective pension
plan and, if so, -whether the Company thereby violated
the Act. Findings have been entered that Prodinger vol-
unteered to supply a booklet describing the current pen-
sion plan when Corso expressed an interest in its terms; it
was not supplied at Corso's request. In any event, the
Company, as a participant in the pension plan, was enti-
tled to the document. I therefore find and conclude this
complaint allegation lacks merit and will recommend it
be dismissed.
10 General Electric Co, 150 NLRB 192, 194 (1964), enfd 418 F 2d 736
(2d Cir 1969).
11 Hiney Printing Co., 262 NLRB 157, 164 (1982) See also Farm Crest
Bakeries, 241 NLRB 1191 (1979), Limpco Mfg Co, 225 NLRB 987
(1976), and Eastern Washington Distributing Co, 216 NLRB 1149 (1975).
With respect to employee solicitations, see Goodyear Aerospace Corp, 204
NLRB 831 (1973), modified on other grounds 497 F 2d 747 (6th Cu
1974), and Harrison Mfg Co, 253 NLRB 675 (1980), enfd. 682 F 2d 580
(6th Cir. 1982)
CONCLUSIONS OF LAW
1. At all pertinent times the Company was an employ-
er engaged in commerce in a business affecting com-
merce and the Union was a labor organization within the
meaning of Section 2 of the Act.
2. At all pertinent times Putnam and Corso were offi-
cers, supervisors, and agents of the Company acting on
its behalf, and the two speakers invited by Putnam to
speak to the employees on November 9 were agents of
the Company acting on its behalf,' within the meaning of
Section 2 of the Act.
3. Units titled the mechanics unit, consisting of compa-
ny employees performing mechanical and related work,
and the service writers unit, consisting of company em-
ployees classified as service writers, road testers, dis-
patchers, and tower men, at all times have been and are
appropriate units for collective-bargaining purposes
within the meaning of Section 9 of the Act.
4. At all times since 1968 the Union has represented a
majority of the Company's employees within the former
unit and since 1973 the Union has represented a majority
of the Company's employees within the latter unit.
5. At all times since 1968, including all times since July
16, the Union has been and is the exclusive collective-
bargaining repesentative of the Company's employees
within the mechanics unit within the meaning of Section
9 of the Act and at all times since 1973, including all
times since July 16, the Union has been and is the exclu-
sive collective-bargaining representative of the Compa-
ny's employees within the service writers unit within the
meaning of Section 9 of the Act'.
6. On August 30, in early October, and on November
9, the Company violated Section 8(a)(1) and (5) of the
Act by attempting to undermine and bypass the Union
and directly deal with its employees within the mechan-
ics and service writers units concerning changes in those
employees' wages.
7. The Company did not violate the Act by Pro-
dinger's offer to supply Corso with a copy of the booklet
describing the terms of the current pension plan covering
the unit employees.
8. The aforesaid unfair labor practices affected and
affect commerce within the meaning of Section 2 of the
Act. '
THE REMEDY
Having found that the Company committed unfair
labor practices , I recommend it be directed to cease and
desist therefrom and take affirmative action designed to
effectuate the purpose of the Act.
Having found that the Company did not commit one
of the unfair labor practices alleged in the complaint, I
recommend those portions of the complaint so alleging
be dismissed.
[Recommended Order omitted from publication.]