Taylor Chevrolet Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1972

199 N.L.R.B. 1064 (N.L.R.B. 1972)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor Chevrolet Corporation and Ice , Oil, Construc-
tion & Supply Drivers & Allied Workers, Local Un-
ion No. 398, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America . Case 3-CA-4723
vation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
October 26, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 27, 1972, Trial Examiner William F.
Scharnikow issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOw, Trial Examiner: The com-
plaint alleges but the answer of the Respondent denies that
the Respondent, Taylor Chevrolet Corporation, has en-
gaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of
the National Labor Relations Act, as amended, 29 USC,
Sec. 151, et seq. (herein called the Act) by refusing on and
after December 16, 1971, to sign a collective-bargaining
agreement, the terms of which had previously been agreed
upon with the Charging Party, herein called the Union.
Pursuant to notice, a hearing was held before me in
Rochester, New York, on April 24 and 25, 1972. The Gener-
al Counsel, the Union, and the Respondent appeared by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evi-
dence upon the issues. Since the hearing, counsel for the
General Counsel and for the Respondent (herein sometimes
called the Company) have submitted briefs which have been
duly considered.
Upon the entire record in the case, and from my obser-
The Company is engaged at Rochester, New York, in
the sale and servicing of new and used automobiles and
trucks. In the year preceding the issuance of the complaint
the Company sold more than $500,000 worth of automo-
biles, trucks and related products. During the same period
the Company in the course and conduct of its business
operations, purchased and received products valued in ex-
cess of $50,000 which were shipped to it in the State of New
York directly from suppliers located outside the State of
New York. I find, as the Company admits, that it is engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to entertain jurisdiction of
this case.
II THE LABOR ORGANIZATION INVOLVED
Ice, Oil, Construction & Supply Drivers & Allied
Workers, Local Union No. 398, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of the
Act.
IN THE ALLEGED UNFAIR LABOR PRACTICES
A. The 1970-1971 Agreement
On April 17, 1970, the Company and the Union signed
a comprehensive collective-bargaining agreement covering
the Company's salesmen , which in Article XXXVI, headed
"DURATION OF AGREEMENT," provided that its
terms should remain in effect from April 1, 1970, to March
31, 1971, and thereafter under certain conditions. The wages
and other economic benefits granted in the agreement were
made effective as of April 1, 1970. At the beginning of the
brief negotiations for the 1970-1971 agreement, the parties
initialled and dated such provisions upon which they could
agree and then put such provisions aside, with the under-
standing that they would not be the subject of further nego-
tiations unless the employees refused to ratify them.
B. The Negotiations for a 1971-1972 Agreement
Prior to December 14, 1971
1. The bargaining meetings from March
through June 1971
At the first bargaining meeting which was held on
March 24, 1971, the Union presented to the Company a list
of 28 "Items" headed "Proposals of Demands," which con-
sisted of changes which the Union was proposing be made
in the 1970-1971 agreement for inclusion in the 1971-1972
agreement. Although only 28 items were listed, many more
proposed changes were involved because various specific
and detailed proposals were included under many of the
individual items. The first meeting was confined largely to
the Union's explaining its new proposals.
199 NLRB No. 176
TAYLOR CHEVROLET CORPORATION 1065
At the next meeting on April 2, 1971, the parties agreed
to follow the same procedure which had been followed in
the negotiations for the previous contract, i.e., initialling,
dating, and setting aside agreed-upon provisions. At this
meeting, eight of the items on the Union's "Proposal of
Demands," as modified, were initialled and dated by Elmer
H. Taylor, the president of the Company, and by Joseph A.
Catalano, Sr., the president and business representative of
the Union. A ninth item was dropped by the Union. Among
the items thus agreed upon was Item 22, as follows: "Page
14, Article XXXVI-DURATION OF AGREEMENT One (1) year
Agreement-effective 4/1/71 to 3/31/72."
Taylor approved this provision after consulting the
other members of his committee, including Bryce McFeg-
gan, the Company' s labor relations advisor. Taylor credibly
testified that before the parties initialled and dated Item 22
Catalano did not mention the possibility of the provisions
ultimately agreed upon being made effective retroactively to
April 1, even though an agreement was reached a consider-
able time later.' Following the April 2 meeting but prior to
June 1, the parties met several times, including May 13. At
the May 13 meeting the Company gave a handwritten coun-
terproposal to the Union covering most of the items listed
on the Union's original "Proposal of Demands," including
the length of the probationary period, the terms of a pay
plan, changes in the vacation schedule, weekly payment of
commissions, and other economic items.
The parties met again on June 1, 1971. At this meeting
there was discussion of an existing form of incentive pay
plan for salesmen providing extra commissions for sales
above a stated level, called a "plateau." Under the existing
plateau plan a new car salesman could count towards his
plateau only new cars sold and a used-car salesman could
count only used cars sold. (The Respondent' s salesmen,
while designated primarily as new-car salesmen, used-car
salesmen, or truck salesmen, were allowed to sell any of the
Company's vehicles .) The Union, through President Catala-
no, sought to persuade the Company to agree to give the
salesmen credit towards their plateau bonus for all cars sold,
new or used, but the Company refused to agree. The Union
then proposed that new car salesmen sell only new cars and
used car salesmen sell only used cars in the future. Taylor
and Catalano agreed on this proposal, shook hands on it,
and the meeting was adjourned on this note.
The next bargaining meeting was held on June 4. State
Mediator Milton Goldberg of the New York Board of Me-
diation was present. The precise nature of the discussions at
i Catalano testified as follows:
I told them that the Union was asking for one year, with the effec-
tive date to be April 1, and the expiration date to be March 31st and
whatever items we would agree to in the future, they would apply to
April 1st, 1971.
Insofar as the latter part of Catalano 's testimony implies that the idea of
retroactivity was discussed before the parties initialled and dated Item 22, I
do not credit his testimony . As it developed later on , Catalano had virtually
no independent recollection of conversations occurring at bargaining meet-
ings held months later than the April 2 meeting . As to this meeting, Catalano
was testifying over a year after the event and his testimony implying that
retroactivity was discussed is too neatly tailored to the Union's purpose in
this case for me to accept it in the face of the countervailing testimony
this meeting is not disclosed in the record. However, it does
appear that the Company's counterproposal first given the
Union on May 13 was discussed. In an effort to reach an
agreement the Company presented a further written propos-
al in which it increased the amount of the monthly guaran-
tee. The Union Committee, after caucusing, rejected this
offer, but said that this offer together with the items previ-
ously agreed upon would be submitted to the salesmen as
a whole at a ratification meeting that evening, and indicated
that there was a possiblity of an agreement being reached.
This meeting terminated after the Union took the position
that any increased economic benefits should be made effec-
tive retroactive to April 1. Taylor, for the Company, refused
to agree to this, explaining that he had not taken the new
pay proposals into account in closing deals since April 12
A ratification meeting of the Company' s salesmen was
held at 7 p.m. that same evening, June 4. Presented for the
salesmen's vote were the Union's proposed changes in the
previous agreement which had been agreed upon and init-
ialled by the parties and, I am convinced, the Company's
counterproposals of May 13 3 The vote was in favor of
accepting the Company's offers. At this meeting Catalano
informed the salesmen of the agreement reached on June 1
that new car salesmen would sell new cars exclusively and
that used car salesmen would be confined to the sales of
used cars. The salesmen agreed to the change. Catalano
called Taylor on June 5 and told him that he thought that
the parties had reached an agreement and that he would
submit the proposed agreement for his signature.
On June 8 a majority of the Company's salesmen
signed a letter to Catalano in which they expressed polite
but emphatic disapproval of his action in agreeing that new
car salesmen would be limited to selling new cars and used
car salesmen would be confined to selling used cars. A few
days later Catalano called Taylor, explained the salesmen's
objections to limiting them to the sale of new or used cars,
and told him, according to Catalano, that "we would revert
back to the old language of the old agreement." Catalano
could not recall Taylor's response to this announcement,
but testified that Taylor did not object, as far as he
knew.4
2 Union President Catalano's testimony is that this question was not raised
until some time later in June . I believe that Taylor's recollection is more
accurate on this point than Catalano's and, in any event, it is immaterial, in
my view of this case, when in June this objection was first raised by the
Company
3 While the record does not disclose the questions presented to the employ-
ees at the ratification meeting I infer, from the provisions of the proposed
contract subsequently submitted by the Union to the Company after this
meeting , that these proposals were presented to the salesmen before the
ratification vote was taken . Thus, as found below, this proposed contract
adopted virtually all of the provisions of the Company's counterproposal of
May 13 which had not previously been disposed of one way or another. The
one exception was the vacation provision
Taylor denied receiving any telephone call from Catalano after June 5.
I believe that Taylor's recollection is faulty in this regard Since the Company
was living up to the terms of the expired contract until such time as a new
agreement was reached, Catalano's agreement to the limitation of the
salesmen's right to sell all kinds of cars had not been put into effect at the
time of Catalano's call, and Catalano 's subsequent announcement of the
return to the old practice , therefore , was not of any great significance to
Taylor at that time . I think that Taylor simply had forgotten about this call
when he testified 10-1/2 months later
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. August 1971 meetings in which the Company
refused to sign a draft of complete agreement
submitted by the Union in June; the Regional
Director's refusal to issue a complaint on the
Union's unfair labor practice charges and his
affirmance by the General Counsel on
November 21, 1971
In the latter part of June, Catalano sent to Taylor a
complete collective-bargaining agreement which was identi-
cal in form to the preceding expired agreement. It included
all of the provisions of the old agreement concerning which
the Union had not proposed any changes, all of the items
on the Union's original "Proposal of Demands" as to which
the parties had indicated their agreement by initialling and
dating, and the substance, at least, of almost all of the
Company's counterproposals of May 13, as to which the
parties had not previously formally noted their agreement.
Among the Company's counterproposals of May 13 which
were included in the Union's proposed new agreement with-
out change were provisions covering the following: proba-
tionary period, selling points, shift and sales meetings,
demonstrators, new and used car and truck pay plans (in-
cluding finance incentives and the plateau bonus). The
Union's inclusion of these provisions in the proposed agree-
ment constituted an abandonment of its own proposals re-
garding these matters and an acceptance of the Company's
proposals with regard thereto. The one provision concern-
ing which agreement had not been previously reached as to
which the Union did not conform its contractual provision
to the Company's counterproposal, as indicated above, was
the vacation provision.
Also included in the Union's proposed agreement was
the provision of the old agreement permitting all salesmen
to sell new or used cars or trucks, without limitation as to
type of vehicle; article XXIX, paragraph 1. The inclusion of
this provision in the Union's proposed agreement was con-
sistent with Catalano's announcement over the telephone to
Taylor earlier that month and was inconsistent with the
agreement Catalano had reached with Taylor on June 1
limiting the types of vehicles the salesmen could sell.5
The parties met twice in August for contract discus-
sions . Taylor did not attend either of these meetings. Mc-
Feggan, the Company's labor relations advisor, was the
Company's spokesman at these meetings. At the first meet-
ing on August 4, the question of vacations was first dis-
cussed. McFeggan stated that the Company was adhering
to the vacation provision advanced in its May 13 counter-
proposal. The Union still insisted on its vacation provision.
The question of pay retroactive to April l was again brought
up. McFeggan said that the Company was not going to
agree to retroactive pay and the Company was not in any
position to discuss this subject without Taylor being pre-
sent." According to Catalano's undenied testimony, he "be-
5 Reference is made here and in the discussion of the subsequent bargain-
ing meetings to the question whether the parties were in agreement on art.
XXIX , par 1, because the Company , up until the close of the hearing in this
case, was taking the position that there had been no resolution of this issue
and that as far as the Company was concerned Catalano 's oral agreement
of June 1 that the salesmen would be l imited to the types of cars which they
could sell was still in effect . However, in its brief the Company no longer
seriously advances this argument.
lieve[d]" that he brought it to the Company's attention at
this meeting that the language in the Union's proposal per-
mitting all of the salesmen to sell all types of vehicles article
XXIX, paragraph 1 was the same as in the expired agree-
ment and that the Company did not raise any objection.
At the second meeting, on August 13, two unresolved
grievances were discussed; then the Company asked that
the Union agree to its vacation proposal but the Union
refused. According to Catalano's undenied testimony, the
subject of the sales of used cars by new car salesmen and
new cars by used car salesmen was also "lightly" touched
upon. Catalano further testified that the Company did not
object to continued adherence to the old practice. There was
a further discussion as to when the increased economic
benefits would go into effect. Catalano said they would
become effective April 1, "as, we agreed to." When Mc-
Feggan again protested, Catalano stated, as he testified,
"We initialled it and agreed to it, and that is what the
effective date is on all items."
On August 23 the Umon filed a charge with the Board's
Regional Office alleging that the Company had failed to
reduce to writing a negotiated collective-bargaining agree-
ment in violation of Section 8(a)(5) and (1) of the Act.
Thereafter, on September 23, the Regional Director refused
to issue a complaint, concluding that the parties had not
reached agreement on all phases of the contract. Upon ap-
peal, the General Counsel, on November 21, 1971, upheld
the Regional Director's action.
C. The Meeting on December 14, 1971 and
the Company's Refusal to Sign a Complete
Draft of Agreement Submitted by the Union
on December 15, 1971
The parties met on December 14 in the presence of
State Mediator Goldberg. The Union asked for a list of the
open items and immediately the discussion turned to the
subject of vacations. After the Union accepted the
Company's earlier vacation provision, Catalano asked
whether the Company would sign the agreement. The Com-
pany objected that there had been no agreement reached on
retroactivity. The Company again pointed out that the deals
which the Company had been making in the meantime had
been based upon the commission rates and pay schedules
set up in the expired agreement. The Union took the posi-
tion that the retroactivity issue was disposed of by the
Company's initialling and dating Item 22, the effective date
provision, on April 2. The parties adhered to their respective
positions regarding retroactivity throughout this meeting.?
McFeggan announced that because of the wage-price
freeze promulgated by the President on August 15, the
Company was limited to a 5.5-percent wage increase and
6 The foregoing findings are based upon McFeggan's credited testimony.
Catalano at first testified that nothing was said about the effective date or
the duration of the contract On cross-examination , however, Catalano, after
consulting his notes, testified that there was "a slight discussion on effective
and the details of it" at this meeting.
7 The above findings are based upon my blending of the testimony of
General Counsel's witness, Bernard King , the attorney for the Union, and
Company witness Taylor Catalano gave testimony concerning an offer of
retroactive pay made by Taylor at this meeting which cannot be reconciled
with the testimony of either King or Taylor. I do not credit Catalano's
testimony in this regard.
TAYLOR CHEVROLET CORPORATION
that Company would not exceed this level. (The economic
package to which the parties had tentatively agreed before
the establishment of the wage-price freeze exceeded the 5.5-
percent level.) Attorney King argued that there had been
Pay Board rulings that the wage-price freeze did not apply
to contracts which were effective before the freeze and that
it was improper for the Company to go back on its prior
agreements . McFeggan urged that penalties were imposed
upon violators of wage -price regulations and Taylor pointed
out that the Company could not afford the adverse publicity
which might follow signing an agreement which apparently
conflicted with wage-price regulations . Attorney King pro-
posed that Taylor sign the agreement subject to Pay Board
approval , but Taylor refused and persisted in his refusal
thoughout this meeting.
Taylor testified that he raised the question at the De-
cember 14 meeting as to what had happened with respect to
his oral agreement with Catalano on June 1 limiting the
salesmen regarding the types of vehicles which they were to
sell and that he received the response from the Union that
"we withdrew it." Neither Catalano, Attorney King, nor
Union Committeeman Speranza could recall any such dis-
cussion having taken place at the December 14 meeting. In
resolving this conflicting testimony it should be borne in
mind that the Company , after receiving the Union's pro-
posed agreement which was sent to it late in June, made no
objection to the inclusion therein of the old article XXIX,
paragraph 1, language , which was inconsistent with Taylor's
oral agreement with Catalano of June 1. As I understand the
position of the parties , there was never any real disagree-
ment between the parties concerning the salesmen being
permitted to sell all types of vehicles . The disagreement
originally was over whether the new car salesmen should
receive credit towards their plateau bonus for the sale of
used cars , and similarly whether used car salesmen should
receive such credit for the sale of new cars . And the Union
had yielded to the Company 's rejection of such a proposal.
Under all the circumstances I conclude that Taylor was
mistaken in his testimony on this point.
On December 15, the Union sent to the Company a
revised complete agreement in which it incorporated the
vacation provision proposed by the Company in its counter-
proposal of May 13 . The parties stipulated that the Compa-
ny thereafter refused to sign the agreement.
D. The Company's Contentions;
Conclusions
The complaint raises the narrow issue whether the
Company "has refused , and continues to refuse, to sign a
written agreement embodying rates of pay, wages, hours of
employment or other conditions of employment agreed
upon ." All parties recognize that if agreement was reached
by the parties on all of the provisions of a collective-bar-
gaining agreement and the Company thereafter refused to
sign an agreement embodying these provisions , such con-
duct would be violative of Section 8(a)(5) of the Act. The
Company contends ( 1) that there was no meeting of the
minds of the parties as to whether the economic benefits
provided in the agreement would become effective retroac-
tively to April 1 and (2) that the President 's wage-price
1067
control program and the regulations of the Pay Board pro-
mulgated as part of this program which , in general, limit
wage increases to 5.5 percent , justified the Company's refus-
al to sign an agreement providing for increases in excess of
5.5 percent . With respect to the Company 's first contention
the General Counsel argues that in view of the ground rules
agreed to by the Company, its action in initialling and dat-
ing Item 22 of the Union's proposal of demands, which
provided for a 1-year agreement , effective April 1, 1971, to
March 31, 1972, foreclosed the Company from thereafter
raising any question about retroactivity . Regarding the
Company's second point, the General Counsel contends
that there is nothing in the wage -price control program
which prohibits an employer from signing an agreement
providing for wage increases in excess of the 5 .5-percent
standard if, as in this case , the implementation of the agree-
ment is made subject to the approval of the Pay Board. In
view of my conclusions concerning the Company 's first con-
tention , set forth below , I do not reach the Company's sec-
ond point.
As found above , on April 2 , at the second meeting of
the parties, the Company, although it was under no obliga-
tion to do so, agreed to the Union 's suggestion that the
parties follow the ground rules established in the earlier
negotiations which involved initialling , dating, and setting
aside agreed-upon proposals. Pursuant to this procedure, on
April 2, the Company initialled and dated Item 22 , provid-
ing as follows : "Page 14,. Article XXXVI-Duration of
Agreement : One (1) year Agreement-effective 4/1/71 to
3/31/72." It should be noted that nothing in the language
of Item 22 necessarily connotes that retroactive effect will
be given to all provisions later agreed upon . It would not be
inconsistent with the language of Item 22 for the parties
later on to agree that certain provisions be given a later
effective date. Considering only the bare language of Item
22, the parties ' agreement on this item can reasonably be
construed as indicating merely their intention to have con-
tinuity between the two agreements and that the new agree-
ment shall have a 1-year term. It is only when the language
of Item 22 is considered together with the full language of
article XXXVI of the old agreement that any question of
possible retroactivity arises.
It should also be borne in mind that at the time the
Company initialled and dated Item 22, it had no reason to
anticipate that the negotiations would not be completed in
a reasonably short period as had the negotiations for the
1970-1971 contract and there was no occasion for retroac-
tivity to be taken into consideration . (As the proposals sub-
sequently made by the Company indicate , the Company
was not averse to making economic concessions in order to
obtain an agreement .) When, on June 4, after the union
committee had rejected the Company's counterproposals,
the question of retroactivity was first raised, the Company
refused to agree that the economic items under considera-
tion be made effective retroactively to April 1. At both of
the meetings of the parties in August and at the final meet-
ing on December 14 the Company adhered to the position
that it would not make its improvements in economic items
effective retroactively . When the issue of retroactivity was
raised, the Company explained as the reason for its refusal
to agree to retroactivity the fact it had continued to make
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deals on the basis of the pay schedule of the old agreement.
Thus it appears that from the time the Company first be-
came aware that there was a problem about retroactivity, it
made it clear to the Union that it would not agree to retroac-
tivity.
I conclude , despite the language of article XXXVI of
the old agreement, that the Company, when it approved
Item 22, never consciously agreed to make all benefits sub-
sequently agreed upon effective retroactively to April 1 and
that consequently there was never any meeting of the minds
of the parties regarding the proposition that economic bene-
fits should be made effective retroactively. Accordingly,
since no agreement was reached by the parties on the issue
of retroactivity, the Respondent's refusal to sign the agree-
ment was not a violation of Section 8(a)(5) of the Act.
Nevertheless, even if notwithstanding my conclusions
stated above the Company, by its action on April 2 in adopt-
ing the procedural arrangement proposed by the Union and
in approving Item 22, may under ordinary contract law
principles be deemed to have committed itself to an agree-
ment on retroactivity, in my opinion good-faith bargaining
does not require the Company to adhere to such a commit-
ment. To hold the Company rigidly bound 8 months later
to such a selflimiting procedural,arrangement, no matter
what developed later on in the negotiations and how much
time had elapsed, appears to me to be inconsistent with the
scheme of collective bargaining envisaged by the Act.
The Act contemplates that the parties to the collective-
bargaining process will freely exchange views, with each
having a full understanding of the proposals of the other. It
further contemplates a willingness on the part of the parties
to change positions in response to developments as the ne-
gotiations progress. The parties cannot have the freedom to
change positions in response to the changing conditions at
the bargaining table contemplated by the Act if they are
held irrevocably bound to a procedural arrangement made
at a time when the parties were not in a position to evalute
the true significance of such an arrangement. In the instant
case the Company had not even formulated its counterpro-
posals when it cooperated with the Union in agreeing to the
selflimiting ground rules proposed by the Union. To enforce
such an arrangement mechanisticly and legalisticly so as to
hold the Company firmly bound to a provision which can
be construed as having a meaning not within the Company's
contemplation at the time the Company agreed to it seems
to penalize the Company for being "a good fellow" and
cooperating with the Union in order to expedite the negotia-
tions. In sum, giving effect to this procedural arrangement
in the circumstances of this case, in my opinion, cannot be
reconciled with the requirement of Section 8(d) of the Act
that the parties to bargaining negotiations treat with one
another "in good faith."
For all of the foregoing reasons I would be constrained
to reject the General Counsel's contention concerning the
binding effect of the procedural arrangement agreed to by
the parties on April 2 even if I were persuaded that retroac-
tivity was then contemplated.
Since my conclusions set forth above are dispositive of
the narrow issue presented by the complaint in this case, it
is immaterial whether the Company was acting within its
rights when on December 14 it withdrew its former eco-
nomic proposals because of the President' s wage-price pro-
gram, and consequently I do not decide this question.
I recommend that the Board enter the following:
ORDER
The complaint herein is dismissed in its entirety.