Wright Motors, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1978

237 N.L.R.B. 570 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright Motors, Inc. and Local 215, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 25 CA 8920
August 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AN[) MEMBEiRS PI N: Ii ()
AND TRt FSDALtI
On May 4, 1978, Administrative Law Judge Abra-
ham Frank issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief. The General Counsel filed a brief
in support of the Administrative Law Judge's [)eci-
sion.
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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and herebh
orders that the Respondent, Wright Motors, Inc.. Ev-
ansville, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
In adopting the Administrative law Judge's I)ecision. se place noi reh-
ance on the fact that Respondent chose tI liIigate the question of its obhlga-
lion to bargain. (f. ( oninental Nut ( oipuotnl. s195 NIRB 841 1972.
DECISION AND RECOMMENDED ORDER
ABRAHAM FRANK, Administrative Law Judge: The charge
in this case was filed on May 9. 1977,1 and the complaint.
alleging violations of Section 8(a)(5) and (1) of the Act,
issued on July 29. The hearing was held at Evansville, Indi-
ana, on October 25.2 The General Counsel and the Re-
spondent filed briefs, which have been duly considered.
The issue in this case is whether Respondent, since No-
vember 9, 1976, refused to bargain with the Union in good
All dates are in 1977 unless otherwise indicated
' The motion of the parties to correct the transcript in ninor repecls is
granted.
faith with a sincere intention to enter into a final collective-
bargaining agreement.
FINI)INGS ()i FA.(C AND (CONCI.[SIONS OF LAW
A. Prelinlnart Findings and Conclusions
The Respondent, Wright Motors. Inc., is an Indiana cor-
poration engaged in the business of servicing and distribut-
ing new and used cars in Evansville, Indiana. Respondent
admits, and I find, that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Charging Party, hereinafter called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
B. Background 3
On October 19, 1973. over Respondent's objections, the
Union was certified by the Board as the exclusive bargain-
ing representative for a unit of Respondent's employees
stipulated by the parties and hereinafter found to be appro-
priate. Respondent refused to accept the validity of the
certification or to meet with the Union for any purpose. On
January 23, 1975, in a summary judgment proceeding. the
Board found that the Respondent's refusal to meet and
bargain with the Union was violative of Section 8(a)(5) and
ordered bargaining (216 NLRB 279,Thereafter, on Janu-
ary 20, 1976. the Board's Order was enforced by the Court
of Appeals for the 7th Circuit in an unpublished decision
(529 F.2d 529). Respondent's petition for a writ of certio-
rari was denied by the Supreme Court on October 4, 1976
(429 U.S. 826).
On January 30. 1974, and in successive letters thereafter.
dated July 8, 1974. February 4 and March 20. 1975, and
March 3. 1976, the Union demanded bargaining. Respon-
dent or its attorneys responded in letters to the effect that
Respondent was testing the validity of the Board's certifi-
At the outset of Ihe hearing, counsel for Ihe General Counsel offered
ii, evidence a settlement agleenellent between the Board. the Union. and
the Resp ndent in C'ases 25 ( A 6576 and 25 (A 5742. executed on No-
emhber 14. 1973 Bs Ihe terms of the settlement agreement. the Respondent
posled a notice that It would not engage in various unfair labor practices
relating to the right of its employees to join or assist the Union or ans other
labhr organization. including the Institution of stringent ,ork rules. creating
Ihe ilpression of surveilance, discriminating against emplosees bs dis-
ch;rge oir tranisfer intrerrogating emplosees. Ihreatening to discharge em-
plosees. threatening to close ils facilit,. threatening that Its employees
isould lose compensation. and threatening to negotiate v. ith a closed mind
in the event the emplosees selected the lnion Io represent them Two em-
plosees. (;regor y Witherspoon and James Capps. were made whole for loss
of earnings as a result of the discrimination against them Bs executing the
selleririnl agreemenl the Respondent did not admit the commlssion of ans
uinf.ir labor practices (Counsel for the General Counsel also offered to
prove hs the testimon) of Wltherspoon and ( apps that Respondent en-
gaged In certain conduct .hich a is the subject of the aforementioned set-
led case, I he proffered exhibits and testimons ,were rejected bh me on the
ground that the Board i.sill not reel upon a prior settlement agreement or the
tlestrilllnt of anl indid dua. relating to the subject matter of the settled case
esn u.s hbackground evidence iof Respondent's hostilit\ in a subsequent un-
fair labh pr.ictice prioceeding :Edue.ood l xrwring ( enter In . 230 NI RB
11121 fin I (1977) Ihis case is more recent than the cases upon which the
(;,enera;l ( Counsel relies represents Ihe Board's considered Miev. and is one
with ,.hich I cannoit claini unfa.niliarits
237 NLRB No. 84
570
WRIGHT MOTORS. IN(
cation and that it would not meet with the Union while the
matter was pending in 'the courts.
C. Bargaining Negotiations
On November 15. 1976. C. K. Arden. president and
business manager of the Union, formally requested Re-
spondent to meet and bargain. In reply, Respondent's sales
manager advised Arden to contact Respondent's attornes.
Arthur Rutkowski. On January 3 Arden wrote to Rutkow-
ski, again requesting a meeting for the purpose of negotiat-
ing a contract. Rutkowski responded on Januar, 17. sug-
gesting a meeting date of February 14. In separate letters.
dated January 20 and January 25. respectively. Arden and
the Union's staff counsel, Anne ('avanaugh Ihomas, pro-
tested the delay in meeting. Rutkowski remained firm and
the Union yielded.
The parties met in seven bargaining sessions. beginning
on February 14 and thereafter on March 9. April 5, Max
24. June 14, and October 18 and 21. Representing the Re-
spondent at these sessions were Rutkowski and Mac Clas-
ton, Respondent's sales manager. Representing the Union
were Lewis Smith, business representative, and Thomas.
At the first bargaining session, on February 14. the
Union presented a proposed basic contract, which did not
include wage rates but included. inter a/ia. provisions for
Recognition, Union Security, Discharge and Suspension, a
Probationary Period of 60 days for new emplosees. a No
Strike--No Lockout clause, a Grievance Procedure leading
to binding Arbitration, and Employer Contribution to the
Union's Pension Fund. The Union requested that Respon-
dent furnish information on the current wages of the unit
employees and their fringe benefits. Rutkowski asked for
the Union's constitution and b,laws and the amounts of
the dues and initiation fees. Smith stated that the constitu-
tion and bylaws were being amended, but that the LUnion
could furnish Respondent with the current bslaws. Dues
were $8 $12 per month and initiation fees $25 $50. subject
to modification by'the Executive Board and the Interna-
tional. Rutkowski asked questions about the meaning of
specific articles and clauses, and these were discussed
briefly. At the conclusion of the meeting Rutkowski prom-
ised to give the Union's proposals serious consideration.
He indicated that he would go over them with the Compa-
ny and would have counterproposals to make. He also
promised to have the wage information and the list of ben-
efits requested by the Union in the mail by the end of the
week. The parties agreed to meet the following March 4.
The Union undertook to reserve a meeting room.
On February 21, Rutkowski sent Smith a letter. which
listed the wage or commission rate paid various categories
of employees and the Respondent's health, welfare, and
vacation benefits in general terms. Smith responded on
March 1 that he needed the actual dollar amount of pay
and benefits paid each individual employee and that such
information was needed prior to the next meeting, which
had been rescheduled from March 4 to March 9. On
March 4, Rutkowski responded that the Union had access
to the W-2 statements of earnings for the employees and
could get the information itself and that, moreover. a good
part of the unit was on a 50 50 commission basis. With
respect to benefits. Rutkowski stated that the compan! did
not have anN of its benefits broken down in actual dollar
amounts for each employee.
At the negotiation session of March 9. Respondent of-
fered its first counterproposal, with the understanding that
it was subject to total agreement on all parts of the contract
and subject further to the submission of all tentative agree-
ments on specific items to the Company's Board of Direc-
tors for approval. In pertinent part. the Respondent's pro-
posed agreement provided: ( 1) recognition of the Union
for the unit of employees certified by the Board; (2) an
open shop in which the : nion would not interfere with the
emplo,,ees' choice concerning union activities or pressure
any employee to join the Union or to sign a checkoff for
union dues and initiation fees. (3) a management-rights
article. giing Respondent the exclusive right "to select and
direct the working force, to determine and from time to
time to redetermine the number, location and types of its
plants and operations and the methods, processes and ma-
terials to be emploed; to hire, promote, suspend or dis-
charge for cause; to establish, allocate, and change work
schedules and assignments. to transfer employees from one
job classification to another or to relieve employees from
duties because of lack of work or other legitimate reasons:
the right to stud' or introduce new or changed production
methods. machinery, tools and equipment or facilities and
to determine the quantity and quality of the materials and
workmanship required: to establish, determine, maintain
and enforce standards of production; to determine and re-
determine repairs to the plant. equipment or machinery'
subcontract work. whatever may he the effect on employ-
ment: to expand. reduce, combine or cease any job. depart-
ment. operation or service. to determine starting and quit-
ting times and determine the number of hours and shifts to
be worked: to alter, rearrange or change. to extend, limit,
or curtail its operations or ans part thereof, or to shut
dowkn completel, or any part thereof whatever may be the
effect upon employment: to make such reasonable rules
and regulations, not in conflict with this Agreement as it
mas from time to time deem best for the purpose of main-
taining order, safety and the effective operation of the
business and after advance notice of such rules and regula-
tions to require compliance therewith." Management also
retained all other rights and prerogatives, including those
exercised unilaterally in the past, subject only to the ex-
press restriction of such rights in the Agreement. The exer-
cise of none of the specific management rights would be
subject to the grievance procedure. (4) a no strike-no lock-
out article in which the Union would agree to fine any
employee engaging in a work interruption and issue a
statement that such interruption was unauthorized by the
Union and in violation of the agreement and that any es-
tablished picket line should be ignored. Under this article
the Union would also refrain from engaging in any form of
"economic pressure by publication. advertisements, picket-
ing. handbilling. or otherwise, directed against the Compa-
ns. its ow ners, or Management. or the products or services
of the CompanN." In the event of a claimed violation of
this article "bh an, employee or group of employees." the
CompanN was granted the right to seek an injunction in
state or I ederal court and file suit for damages against the
571
IDE)ISIONS ()F NAT IONAI. IABOR RELA I(ONS BOARD)
Union without first arbitrating the claimed violation. The
Union, "its officers, agents and members" would be liable.
collectively and individually for damages resulting from
the claimed violation. The inion would waive its right to
remove any action for damages from a state or Federal
court, when instituted by the Company. Further, the par-
ties would agree to execute and post a performance bond
of $20,000, to be forfeited as liquidated damages in the
event either party violated the agreement. In addition to
the above remedies, the Company reserved the right to dis-
charge or otherwise discipline any employee violating the
no-strike clause. In the event a grievance was filed, the
arbitrator's jurisdiction would be limited to determining
whether the employee engaged in the prohibited conduct.
The degree of discipline or the selection of the employee to
be disciplined would not be in issue before the arbitrator.
(5) Among other obligations of employees. each employee
would be required to have a valid current driver's license.
each mechanic would be required to pass the mechanic's
certification test in the time period determined by the
Company, and no mechanic would be permitted to per-
form outside commercial work in the automotive field. (6)
The Company would continue its practices with respect to
health and safety.
Smith looked over the Company's proposal briefly and
asked Rutkowski to explain some of the provisions. As to
the performance bond, Rutkowski said that it was intended
to show financial responsibility and was in addition to ac-
tual damages suffered by the Company. With respect to
wage rates, Smith asked if Respondent was refusing to ne-
gotiate on hourly wage rates. Rutkowski responded 'No.
that is our proposal that hourly wage rate set at our discre-
tion, but we'll negotiate on that too." Smith and Rutkowski
discussed briefly the obligations of employees to have valid
licenses, to take the mechanic's certification test. and to
refrain from outside mechanical work. The parties then
discussed Respondent's refusal to furnish the Uinion the
specific information previously requested. Smith insisted
that the Union needed the specific amount of wages and
benefits paid each individual and asked, "Are you going to
give me that information or not?" Rutkowski replied that
he did not know (1) whether the Company had those fig-
ures and (2) whether the Union was entitled to such infor-
mation. The Union could get it from the employees' W 2
forms. Clayton explained in general terms the Company's
profit-sharing pension plan (NADART), 4 the guarantee of
monthly income paid weekly, the flat rate and the 50 50
commission rate, the warranty rate, and health, life, and
disability insurance. Rutkowski promised to provide the
Union with whatever information the Company had relat-
ing to these benefits. The Respondent would also provide
figures on holidays and uniforms. Rutkowski agreed to
check if the Company had the dollar figures paid to each
individual and whether the Union was entitled to it.
On March 29, Smith wrote to Rutkowski, asking that the
requested information, which Rutkowski in the interim had
indicated would be available at the next negotiation session
of April 15, be forwarded to Smith prior to that date. On
March 31, Rutkowski acknowledged receipt of Smith's let-
4 Natinal Automohikl DIcalers A-,Sot:itillol RcticnllCni I 'kill
ter and confirmed the meeting date of April 15, but did not
refer to Smith's request for information. On April 4. Smith
ag;ain wrote to Rutkoswski, renewing his request that the
information he submitted to Smith prior to April 15. On
April 5,. Rutko Aski's secretalr n wrote Smith that Rutkowski
wsas out of town and would return on April 8. On the latter
date Rutkos, ski forwarded the requested information to
Smith.
The parties met on April Is at 1:35 p.m. in a bargaining
session that lasted about 3 hours. At the beginning and end
of the rneeting C('laton gave the union representatives ad-
ditional specific details as to the cost to employees of the
various benefits currently available to them, i.e.. life, dis-
ability. and health insurance and the C(ompany's retire-
ment pension plan. Clayton also explained the Respon-
dent's current practice 'with respect to the lunch period,
reporting and quitting time, break periods, special school-
ing for employees, tools furnished by the Company, dis-
counts for service and purchase of new cards, seniority.
and discharge.
The parties compared several articles of their respective
proposals, bhut there was little movement. As to manage-
ment rights. Smith and Thomas expressed concern that the
Respondent's article gave the Company the right to shut
down its business without regard to the effect on employ-
ment. Rutkowski agreed, and stated further that the Cornm-
pans would not have to bargain about closing its business
unless the Union was successful in obtaining a provision in
the contract specifically restricting the Company's right to
do so. Smith also pointed out that the Respondent's man-
agement rights article would not he subject to the grievance
procedure. Again Rutkouwski agreed. stating, "If it's not
important enough to you to raise it at the table. we retain
the right."
With respect to the no strike no lockout article in Re-
spondent's proposal. Smith protested the requirement for a
performance bond. stating that they could not live with
thait it would cut their throats if something happened.
Rutkowski repeated his position expressed at the previous
meeting that the bond was in addition to other remedies.
Smith also objected to Respondent's proposal that the
Union fine members under the no-strike provision, that the
Union waive its right to move a case from a state or Feder-
al court, and that an arbitrator's discretion be limited in a
grievance case. Thomas pointed out that Respondent's ar-
ticle bound the lUnion for acts of individual members. To
this Rutkowski replied that if the Union could not control
its members it should not be their exclusive representative:
it should stop getting members. Smith indicated that the
IUnion could move on its language. but not to Respon-
dent's. Rutkowski said, 'You haven't told me anything
wrong." However. Rutkowski noted that he was not mar-
ried to every comma and would take into consideration the
bond if the Union agreed to Respondent's clause.
The parties recessed and returned to discuss the article
on probationary employees. Smith objected to Respon-
dent's I-year requirement for probation. suggesting that 50
days was enough. Rutkowski rejected the shorter period,
stating. "You haven't given me any reason to move off a
year." As to the Respondent's proposal on leave of ab-
sence. Smith said he saw nothing wlrong with the first para-
572
WRIGiHT 1() I()RS. IN(
graph and agreed to it. Other clauses under this article
were discussed and the parties agreed to hold them open
for a while. On the clause relating to activitties of the union
steward. Smith agreed that the steward would not he able
to solicit grievances. Rutkowski agreed to consider some of
the Union's language to the effect that the ste, ard could
process grievances after hours. As to plant \isitation for
union representatives. Smith sat no problerm ith tilhe Re-
spondent's proposal. Smith also w\as willing to accept Re-
spondent's proposal as to the use of the ('ompain\'s hulle-
tin board by the L nion. However. the issue \ais left open
because Smith would not agree that a department head had
to initial a union notice. Questions on health arid saletS
and the nondiscrimination clause were put on hold Smith
agreed to Respondent's language as to agreeilenl and rec-
ognition. The Union's article on discharge andc suspension
of employees was discussed and left open. I he parties then
considered their respective articles on grievance anld arhi-
tration. Smith objected strenuousl, to Respondent's p rol-
sion for permissive arbitration. saing thi it las uiifa.ir
and unreasonable and utnderni nled tihe criexa nce-arbilr-a
tion procedure. Smith asked if Rutkosksski sould take mIn\-
thing other than Respondent's language on al'bilrtioill.
Rutkowski replied. "No. not right no\\s ." II would delpenil
on the entire agreement reached. I homas asked wit\ Re-
spondent did not want mandators arbitration. Rutlkosski
responded that he didn't want the arbitrator being there to
decide the very things that could decide the verx lir elihood
of the Respondent's business. However. Rutkouski indi-
cated that if they could get some laniguage Respondent
might be able to agree to some form tof nmandators arbhitra-
tion. Rutkowski said that the union represerltat ites had not
given him any reason to set anll of Respondent's proposals
aside.
Smith suggested they go back and start with page I.
However. Rutkowski would not accept the language of the
I!nion's initial "Agreement" clause or the "Purpose andl
Intent" of the agreement. Rutkowski took the position that
if the Union wanted any current practice continued it had
to he raised at the table Smith asked if Rutkowskil had
agreed to anything at that meeting Rutkowski replied that
Respondent had said it would consider thimngs Smith said.
"We need to redraft our proposals then." Rulkos ski ian-
swered, 'Whatever vou need to do."
As indicated above. the charge was filed on \Ma; ') aid
served on Respondent oni that date.
The fourth meeting of Max 24 was brief. Rutkosskil at
this time presented counterproposals relating to, manage-
ment rights. arbitration. the no-strike clause. and other mi-
nor provisions. The parties agreed to meet on June 14 for
the next session. In addition to a number of mitnor chaitges.
the Respondent's counterproposals: (I) removed Respon-
dent's proposed limitation on the arbitrator's authorits as
to grievances filed underr the no Strike no Ilockout article:
(2) substituted a period of 9 months for Respondenlt's origi-
nal proposal of I year for probationars emploeess: (3)
eliminated the requirement for permissive arbitration in fa-
vor of mandatory arbitration: (4) eliminated the provision
removing management rights from the grievance proce-
dure: 15) eliminated the requirement that a department
head initial all Uinion notices posted on the ('onpanll's
bulletin board. such notices. hosuever. to be subject to ap-
proval of compatn) management.
Nt the filthi meetill of Juno e 14 the mnion agreed to a
ilueilhe of minnor proposals of Respondent. such as the
c.ecrIlli pros ss. slith T minor changes. use of the bulletin
board. reportin i and call-in pa!. examilnatins of emplo)-
ecs. and tile intent. putrpose. and scope of the agreement
Respondent offered to consider permitting the steward to
pI)oces griesances on comnpan> time ssith pay. The parties
wertc still far apart on tIhe probhationar, period, the I.nion
insinting that 6() dclas Uias enough. Rutkosuski suggested
theie might he different periods for different groups of em-
pIosees 1tlld Smith inldicated that xwxas a possibility.
Smith offeretd nes usritten proposals for a maintenance-
of-st.nda irdl aliuse .and i revised. shorter management-
irIlhts clause. Rutkou Iski insisted that Respondent's man-
aclllelltl-igllt clause u.as not a tradeable item. Rutkowski
also) t ook the postioll that any past practice of Respondent
that thie I nion u;lilted to preser e u. ould have to he specif-
icills lisled iin the contract. If it 'aIs important enough to
the l ni on. then It swould hase to be proposed and put
do i in writing. FIhere wsas no agreement as to these items.
Smitlh IliCc athed at tht e Respondentll had made some
ricl mI lcmient and so ha;d the tinion. Hie suggested that
thes geet the lalnIuaee iteems out of the u ax, at the next
tirletite ald mov11e to monetar\ items. -I holmas proposed
the inext mIeetili hbe held on June 27. (Cla ton proposed
.IIIIC 28
No mneetilng uas held on June 28. or. indeed, from the
dale of the last meetiirg. June 14. to ()ctober 18. The June
28 mrlcetilg ;as canceled bN Smith ldue to an emergencN in
hIlls famil . Rutkouskli as not asailabl e in Jui, because of
trial comilitients. Smith oxas not aailable in August and
Septelhber because Ihe was bus\ negotiatinl other con-
tracts I lhotillas as on ; acatioll clurilg the s eek bridging
Aligust arid September. Moreover. the I nion believed
there \\as no point in requesting a meetilg after the com-
plaitit in this case issued because Respondent had refused
to imieet -ith the U nion while litigating the previous unfair
lahor piactice.
Ithe Regional Director ha;d advisecl the parties on Juin
2u that tihe hearintg in this case would be held on October
On September 31. at the stiggeestion of the (General
('o tlltl. Smiithl u rote Rut kouski asking for aniother negoti-
atilie sessioni ()n ()ctober 6 Rut kou ski responded. suggest-
ing that the, hold two mlleetilns. o, ne in October 18 and
allotlher oin October 21. I he parties met on these two dates.
Il he meetIl on ()ctober 18 hegalln t about 1 .4 p.m
and lasted until sometitlile before 3 p.m. Ihe parties re-
vicsAed their differences with respect to the no strike no
lockout prioi ntl. the arhitration language, requiring a
w rllell submlission agreeimentl to he entered detailing the
dispute at issue. procuessig of gries ances by the steward.
the man;lalgemllenlt-rights clause. and the probationary pe-
riod. l here \as conlsiderable discussion of the Respon-
dent's current promotlion polico. the flat rate. and assign-
menlls to 5ariot s jobs. Smith said the U nion would
seriouslS consllder Respondent's proposal for different pro-
h;bti ntl;l periods for different classificattions of emplo)ees.
Ihe lntoni l ould accept the Respondent's language on
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stewards if the Respondent would permit the steward to
process grievances on company time. Smith also said the
Union would consider the Respondent's management-
rights clause if the Respondent would consider the Union's
maintenance-of-standards clause.
The bargaining meeting of October 21 began at about
1:30 p.m. and lasted until about 5:30 p.m. At the outset of
the meeting, Thomas presented Respondent's representa-
tives with a written proposal spelling out circumstances un-
der which employees not included in the bargaining unit
could perform bargaining unit work. The matter was dis-
cussed in some detail and was left open. Discussed also
were the Respondent's proposals with respect to holidays
and seniority. Thomas requested that a copy of the senior-
ity list be furnished the Union.
The meeting adjourned to permit the Respondent's rep-
resentatives to caucus. Upon their return. Rutkowski re-
sponded to the Union's positions. As to the limitation on
bargaining unit work by employees not employed in the
unit, Rutkowski said the Union's proposal was too broad:
that the Respondent might consider some other form of
restriction, but not the Union's language. With respect to
holidays, the Respondent agreed to modify several para-
graphs of its March 9 proposal. With respect to seniority.
the Respondent agreed to modify its March 9 proposal and
accept several of the Union's counterproposals on this
item. Respondent agreed to furnish the Union with a copy
of the seniority list.
Rutkowski also presented the union representatives with
written counterproposals. (1) The Respondent now offered
to modify its May 24 article on no strike-no lockout by: (a)
eliminating the requirement that the Union fine an em-
ployee for engaging in a prohibited strike; (b) eliminating
the provision that union officers would be liable collective-
ly and individually for damages resulting from a violation
of this provision; (c) eliminating the Union's waiver of its
right to remove any action for damages from a state or
Federal court; (d) eliminating the requirement for a
$20,000 performance bond. (2) The Respondent offered to
modify its March 9 proposal for probationary employees to
require a 120-day probationary period for hourly employ-
ees, but retaining the I-year period for mechanics, body-
men, and painters. (3) The Respondent offered to modify
its proposal on stewards to permit the steward to process
grievances on working time for 1-hour a week, provided it
did not interfere with his work or the work of any other
employee and the steward notified and secured permission
of the foremen to be absent. (4) The Respondent offered to
delete provisions in its arbitration article: (a) requiring that
a written submission agreement be entered into detailing
the dispute at issue; (b) denying the arbitrator the right to
rule on any arbitrable matter except while the Agreement
was in full force and effect; (c) denying the arbitrator the
right to change or establish any wage or to pass on matters
having to do with new or changed jobs: (d) restricting sub-
mission of grievances to an arbitrator to one at a time un-
less otherwise mutually agreed. (5) The Respondent
dropped its proposal that all promotions and methods of
promotion be made at the sole discretion of the Company.
(6) The Respondent offered to modify its proposal with
respect to mechanics' outside work to permit such work if
not in competition with the Company. (7) The Respondent
offered to drop its article on open shop with the under-
standing that there would be an open shop. (8) The Re-
spondent offered to negotiate the minimum wage rate for
each individual hourly rated employee and to eliminate the
provision that wage rates be set at the discretion of the
Company. (9) The Respondent also proposed minor
changes under the article on grievance procedure.
The Union accepted the Respondent's proposals on no
strike no lockout but objected to the clause granting the
Respondent the sole right to discharge or determine the
discipline for an employee engaging in a prohibited strike:
accepted Respondent's proposals on arbitration, promo-
tions, and the right of the steward to process grievances on
working time but held open the proviso that such pro-
cessing not interfere with work. There was basic agreement
on grievance procedure and, as indicated above, on holi-
days and seniority. Other proposals were discussed with-
out resolution. The minutes of Rutkowski show that the
parties were to meet for the next negotiating session on
November 2.
D. Summary of Bargaining Negotiations
No agreement was reached on any issues during the first
two meetings of February 14 and March 9.
On April 15, the parties agreed, with minor changes, to
Respondent's proposal of March 9 relating to agreement.
recognition, and plant visitation. Under leave of absence,
the Union accepted Respondent's proposal for a 30-day
leave of absence to be granted at the Respondent's sole
discretion. 1The Union also accepted Respondent's lan-
guage forbidding the union steward to solicit grievances.
On June 14. the parties agreed, with minor changes. to the
articles relating to certain general provisions, bulletin
board, reporting pay, call-in pay, examinations, and the
intent, purpose, and scope of the agreement.
On October 21, there was basic agreement on holidays.
seniority, union representation, the grievance procedure,
arbitration, and no strike-no lockout. Dropped by Respon-
dent were its proposals that wage rates and promotions be
determined at Respondent's sole discretion and that the
contract contain a specific article guaranteeing an open
shop.
Discussed. but unresolved during the meetings, were ar-
ticles on management rights (Respondent's lengthy para-
graph against the Union's shorter paragraph); the Union's
proposals of maintenance of standards: obligations of em-
plovees as set forth in the Respondent's March 9 proposal:
probationary employees: nondiscrimination, relating to
employees' right to refrain from union activity: nonbar-
gaining unit employees, relating to work by such employ-
ees or supervisors in the bargaining unit; and the Union's
article on discharge and suspension.
Not discussed during any of the meetings were wages,
hours, fringe benefits (except for holiday eligibility), over-
time and premium pay, union security and checkoff, union
pensions (except for questions as to its status under ERISA
and IRS), duration of the contract, temporary transfers,
separability and savings, classifying employees, aspects of
the agreement in full contained in Respondent's March 9
574
WRIGHT 1MOTORS. INC
proposal, and some provisions of protection of rights and
general provisions contained in the I nion's proposal of
February 14.
ANALYSIS AN[) FIN s. Co)N(l t sioN s)s 0I .s
It is the position of the General Counsel that Respon-
dent from the beginning of the IO(h) period to the date of
the hearing in this case did not bargain in good faith with
the Union with a sincere intention to reach agreement. Al-
though the complaint was issued prior to the last two meet-
ings. Respondent's total conduct was thoroughly litigated
in this proceeding, and I have taken all of it into consider-
ation in reaching my judgment.
Section 8(d) of the Act obligates the parties to "meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of emploh-
ment ... " Although neither part' is required to agree to
a proposal or make a concession and the Board mas not
substitute its judgment for that of the parties. :. L R R. B.
American National Insurance Co.. 343 '.S. 395 (1952):
H. K. Porter Co., Inc., Di.sson Disivon Damnille Ilorks v.
N.. R.B., 397 U.S. 99 (1970). that is the beginning, not the
end, of an inquiry into allegations of surface bargaining.
"Enforcement of the obligation to bargain collectively is
crucial to the statutory scheme. And. as has long been rec-
ognized, performance of the duty to bargain requires more
than a willingness to enter upon a sterile discussion of
union management differences." N IR. . .R ... Iuri,'can
National Insurance ( o...siq/ra at 402. Put in different and
eloquent words by Judge Brown in N.L.R.RB. . Herman
Sausage (o., Inc.. 275 F.2d 229, 232 (('.A. 5,. 1960): "On
the other hand while the employer is assured these valuable
rights Ithe right to maintain its position free from the
Board's direction]. he may not use them as a cloak. In
approaching it from this vantage, one must recognize as
well that bad faith is prohibited though done with sophisti-
cation and finesse. Consequently, to sit at a bargaining ta-
ble, or to sit almost forever, or to make concessions here
and there, could be the very means bh which to conceal a
purposeful strategy to make bargaining futile or fail. Hence.
we have said in more colorful language it takes more than
mere 'surface bargaining.' or 'shadow boxing to a draw,' or
'giving the Union a runaround while purporting to be
meeting with the Union for purpose of collective bargain-
ing.' "
The Board too has emphasized that collective bargaining
is something more than the mere meeting of emploser and
representatives of his employees. It is essential that there be
a serious intent to adjust differences and reach an accept-
able common ground, Wal-Lite Diiision of United States
Gypsum Co., 200 NLRB 1098 (1972), on major, substantive
issues of collective bargaining. Borg-Warner Controls, a Di-
vision of Borg-Warner Corporation, 198 NI.RB 726 (1972).
See also Flambeau Plasvic.s Corporation, 167 NI RB 735,
749 50 (1967). enfd. 401 F.2d 128 (C.A. 7. 1968). cert. de-
nied 393 U.S. 1019. Where there have been lengths negoti-
ations. the question is whether it can be inferred from "the
totaliti of the emploier's conduct that he went through the
motions of negotiation as an elaborate pretense with no
sincere desire to reach agreement. or that he bargained in
good faith but was unable to arrive at an acceptable agree-
ment with the t:nion." Quoting N. L. R. B. v. Reed & Prince
.Mlanufacturing Compan,. 205 F.2d 131, 139-140 (C.A. 1.
1953).: Siiei' & Co. Inc.. 176 NI RB 208. 211 (1969).
I have set forth in considerable detail, perhaps too much
detail. the minitiae of the bargaining relationship between
the U'nion and the Respondent. including the histor) of
legal steps antedating the 10(h) period in this case.
On this record one fact stands out. In June 1973. a ma-
jorits of Respondent's emplooees in the appropriate unit
voted to be represented b\ the I 'nion. As of the date of this
Decision. almost searts later. there has been no bargain-
ilg on the primary. statutory subjects of collective bargain-
inl. vag es. and hours
For 3 years. Respondent pursued its legal right to appeal
the Regional Director's determination ' that the challenges
to the ballots of two emplovees. Joe Wright and Steve
(iro,es. should be sustained on the ground that thes are
close relati es of managementi Wright is the son of George
Wright, president of Respondent. George Wright owned 51
to 52 percent of Respondent's stock at the time of the elec-
tion. G;ro es is George WNright's nephew. Grove's mother at
the time of the election oswned 28 percent of Respondent's
stock. I here uaas not hargaining during this period and the
employees remained unrepresented.
Ihe Supreme ('ourt denied certiorari on October 4.
1976. On Nosember 15. 1976, the Union requested bar-
g.aining. Respondent referred the Union to Rutkowski, its
attorne' and chief negotiator. On Januars 3, the Union
wrote to Rutkowski. It would take another month, until
February 14. before Rutkowski was willing to meet. Ordi-
narils,. a delis of a month or so in scheduling an initial
meeting Wsould not in and of itself he evidence of bad faith.
But these emplosees had been denied their bargaining
rights for the preceding 3 nears while Respondent litigated
its obligation to bargain. In such circumstances good faith
on the part of the Respondent required that it respond with
alacrity to the Ulnion's first request rather than merely pro-
viding the m'nion with the name of Respondent's attorne.,
who then insisted upon further delay.
L.ittle. if anvthing. was accomplished at the meeting of
February 14 The Union presented its basic contract and
asked for current wage and fringe benefits information, to
which it was clearlx entitled. Respondent vacillated. first
providing the information in general rather than specific
dollar amounts. then asserting that the Union could get the
wage information itself, that the Company did not have the
dollar amounts of fringe benefits, and finally that Rutkow-
ski was not sure the Union was entitled to this information.
Almost 2 months later, on April 8. after further, urgent
correspondence. Rutkowski forwarded the requested infor-
mation to the Ulnion.
In the interim, the parties met on March 9 and Respon-
dent presented 36 written counterproposals. Some of these
proposals would have put the employees in a far worse
position with the I nionI than without it, Others would have
so damnaged the Union's abilit\ to function as the employ-
ees' bargaining representattise that Rutkowski. a skillful
'I t 1ke ]Ll.iti.l ne,.e ,f Rct, l] ml [) rtr', Rcplit oni OhlectOn-l ill m
( hal'!erlc d I t L LIIo I Ill ( .,IC " Rt '; 2 r' m,1,ud ,,1l \XlIu qI '9 19'1
575
DECISIONS OF NA'I'IONAL LABOR RELATIONS BOARD
and experienced practitioner. could not possibly have ex-
pected that they could result in serious and meaningful
collective bargaining. The provisions are set forth above: I
repeat the more flagrant ones here. An "open shop" was
guaranteed. limiting the Union's right to secure members
and check off authorizations to pay for the costs of union
representation. A lengthy management rights clause, not
subject to the grievance procedure, gave the Company ex-
clusive control over hours, work rules, and production and
authorized the Company to subcontract, curtail, or shut
down its business completely without regard to the effect
on employment. An extraordinary no strike no lockout
clause required the Union to fine "any employee" who en-
gaged in a prohibited work interruption, granted the Com-
pan) the right to seek an injunction and damages against
the Union without arbitrating the claim, made the Union,
"its officers, agents. and members" liable individually and
collectively for damages, required the Union to waive its
legal right to remove a suit from a state or Federal court,
provided for a $20,000 bond to be forfeited as liquidated
damages in the event of a violation of the article (in addi-
tion to actual damages), and limited the authority of an
arbitrator in providing a remedy. An article on arbitration
provided for only' limited and permissive arbitration. Hour-
ly wage rates and promotions would be set at the ('om-
pany's sole discretion.
Not until May 24, after the charge in this case was filed,
did Respondent agree to mandatory arbitration, remove its
limitation on the arbitrator's authority under the no strike-
no lockout provision, agree that management rights would
be subject to the grievance procedure, and eliminate lesser,
but equally unacceptable, language.
Not until October 21, after the complaint in this case
was issued and 4 days before the hearing, did the Respon-
dent withdraw other of its extreme proposals of March 9
under its no strike -no lockout article, the article on arbitra-
tion, the specific requirement for an open shop, and the
provisions that wage rates and promotions be set at the
Company's sole discretion. More than a year after its obli-
gation to bargain in good faith under Section 8(a)(5) and
(d) of the Act was finally judicially determined, the Re-
spondent offered to negotiate the minimum wage rate for
each individual hourly rated employee.
Information as to the dollar amounts of the employees'
current wage rates and fringe benefits, which the Union
had urgently requested in February and which were reluc-
tantly yielded in April, were of no use to the U[nion be-
cause there was no bargaining on these monetary. substan-
tive issues. The seven negotiating sessions over a 10-month
period were occupied mainly with long discussions of Re-
spondent's proposals, examples of which are set forth
above.
It is a fact, as Respondent reminds me in its brief, that
Rutkowski never took an adamant position on any of Re-
spondent's 36 initial bargaining articles. It is also a fact
that the proposals which presented the greatest obstacle to
agreement on language were withdrawn by Respondent af-
ter the charge and complaint in this case issued. Rutkowski
made it clear from the very beginning that he was not wed-
ded to every comma in Respondent's proposals. Hie was
willing, he said, to negotiate, depending on the entire
agreement. Confronted by Smith with the question whether
Respondent was refusing to negotiate on wages, Rutkowski
responded quickly that that was only the Respondent's
proposal. Respondent was willing to negotiate the question
whether it would negotiate on wages! Considering his com-
petence and long experience, Rutkowski must have known
better than that. Wages are mandatory subjects of bargain-
ing. They nmus be negotiated.
Respondent would have me conclude that it was en-
gaged only in hard bargaining. Contrary to Respondent, its
failure to take an adamant position on any bargaining sub-
ject is not a complete defense to the charge of surface bar-
gaining. Indeed, the law is clear that an employer's posi-
tion, to which he is deeply and honestly committed. may be
maintained forever, though it produce a statemate.
NA.L.R.B. v. Herman Sausage, supra at 231. Gehnrich &
GC;hnrich. I/n., 232 NLRB 1122 (1977). An employer or a
union may bargain hard on an issue of importance to it,
recognizing that it must give something of substance for
what it gets and striving always for an acceptable compro-
mise to reach final agreement. Hard bargaining is not bar-
gaining interminably over straw men and then yielding
precipitously on the hard-fought issues without final agree-
ment or hope of final agreement on all issues. This type of
bargaining compels the inference that its purpose is not to
arrive at a hard bargain but to insure no bargain through
the tactics of delay. It does not appear that any of Respon-
dent's proposals from which it retreated after months of
delay were proposed out of deep conviction, high principle,
or economic necessity.
I conclude that Respondent, forced finally to recognize
and bargain with the Union, embarked upon a plan or
strategy to frustrate and insure the failure of the collective-
bargaining process by: (1) delaying meeting with the
Union: (2) delaying providing the Union with relevant bar-
gaining information: (3) engaging in surface bargaining
with no sincere intention of reaching agreement.
By such conduct. Respondent has violated Section
8(a)(5) and (1) of the Act.
These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
The appropriate unit is: All mechanics, bodymen, paint-
ers, general laborers. partsmen, and service writers em-
ployed by the Employer at its Evansville, Indiana, estab-
lishment: but excluding all office clerical employees,
dispatchers, all professional employees. all guards. and
supervisors as defined in the Act.
l1m Rus-Fi)y
Having found that Respondent has engaged in the unfair
labor practices set forth above, I shall recomend that it
cease and desist from such conduct or like or related con-
duct, and take certain affirmative action to effectuate the
policies of the Act. I shall also recommend that Respon-
dent be ordered to bargain collectively in good faith, upon
request, with the Union as the exclusive bargaining repre-
sentative of its employees in the above unit; in the event
that an understanding is reached, to embody such under-
standing in a signed agreement, and to post the attached
notice.
576
WRIGHT MOTORS. INC(
In order to insure that the employees will be accorded
the statutorily prescribed services of their elected harg!an-
ing agent for the period provided by law. I shall recom-
mend that the initial year of certification begin on the date
the Respondent commences to bargain in good faith with
the Union as the bargaining representative in the appropri-
ate unit. Southern Paper Box Conipanr. 193 NILRB 881. 883
1 971 ).
Upon the basis of the foregoing findings of fact. conclu-
sions of law, and the entire record in this proceeding. and
pursuant to Section 10(c) of the Act. I herebh issue the
following recommended:
ORDER 6
The Respondent. Wright Motors Inc.. EvLanssille. Indi-
ana. its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Refusing to bargain collectively and in good faith
concerning rates of pay, hours of employment. and other
terms and conditions of employment with Local 215. Inter-
national Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America. by delauing meeting
with such labor organization, delaying furnishing rele'ant
bargaining information, and engaging in surface bargain-
ing with no sincere intention of reaching agreement. I he
appropriate unit is:
All mechanics, bodymen. painters, general lahoiers.
partsmen, and service writers employed bh the 1tm-
ployer at its Evansville. Indiana. establishmient: but
excluding all office clerical employees. dispatchers. all
professional employees. all guards. and supervisors as
defined in the Act.
(b) In any like or related manner interfering with. re-
straining, or coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request. bargain collectively and in good faith
concerning rates of pay, hours of employment. and other
terms and conditions of employment with the above-
named Union as the exclusive bargaining representative of
its employees in the above-designated unit, and embody in
a signed agreement any understanding reached. T he initial
year of the Union's certification as the exclusive bargaining
representative of the employees in the above-designated
unit will begin on the date the Respondent commences
bargaining in good faith with the Union as such represen-
tative.
(b) Post at its establishment in Evansville, Indiana. cop-
ies of the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Director
for Region 25. after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomiarilx posted. Reasonable steps shall he taken bh\ Re-
sponldetit to insure that said notices are not altered. de-
faced. or coeTred hb al!\ othe niaterial.
(c) Notifx the Regiotnal I)irector for Region 25. in Arit-
inr. within 2'( daos from the date of this Order. xh;at steps
Respondelnt has taken to comLIpl herewsith.
III 111 .Ct 111 11i i C\LtC Io1tI. -IC api J A t r bx Nti'(,It 1 i , l ,1 10 .l
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d it li I \ i.dt C,] for F [. [Mii ?Oi 'i iI
rC¢.c11[ l l [h, i 1, C II, '11 I "1C"
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f the ,lc \1 t1w,1 1 I A,'[' RcLi.uhl, [i' .trd' 1,,hll I4,i 1 'T-. -cd I'Ur1 'l:hlit 1'.:
It kld llt'rl[ ,q1 li t [ I l NM., t .l[ of \Ipcil, I lifffling I o nc ()rdCl Af the
\% tlll.,l I .A-,r Rc .i(m m, ll.ili
APPEND)IX
Noi lt TEo F10ti llls
PosTii,) BN ORDI R 0)1 li,
N s\loNsil I Rt)R Ri i OliloNs BO\RI)
An AXencx of the I nited States (overnnilent
W'I xll ,)l refuse to harg;ain collectively, and in
good faitih Conlerning rates of pa , houlrs of emploN-
mllen.lt, ld other tcrmis and conditions of emplo mcinle
',ith l.ocal 215. Internationtal Brotherhood of leani-
sters, Chauffeurs. W'arehousemen arid Helpers of
A.ierica. as the exclusive bargaining representative of
our employees in the unit set forth below. dela.'ing
meeting with said L nion. delan!:lg furnishing relex ant
bargaininig information. engaging in surface hargailn-
ing xi ithout a sincere inrtenltioin to reach agreement.
I lh appropriate hargaining unit is:
AII mechanics. hod mien. painters. general laborers.
partsmen anld service writers employed hb the I m-
plo.)er iat its L: insitille. Inldiana establishmenit: but
excluding all office clerical employees. dispatchers.
all professional enploxees, all guards and all super-
\isors as defined in the Act.
Wi x ii - Sno in an\ like or related manner interfere
with. restrailn. or coer[ce our empnqloxees in the exercise
of the rights guaal;liteed them in Section 7 of the Na-
tional L abor Relations Act.
WiVi iii upon request. bargain collectixelx arid in
good faithli concerning rates of pa!. hours of emplo?-
mtent. and other terms anid conditions of emplonment
Awith the above-naimed I 'nion as the exclusive bargain-
tig representative of our employees in the above-de-
scribed unit and emhoid in a signed agreement an!
understandinig reached. i'he initial year of the U nion's
certification as thie exclusive bargaining representative
of the emplo, ees in the aboxe-designated unit will be-
gin on the date swe commence bargaining in good faith
with the /tniton as such representative.
W:RI(IIlI MOI()1 RS I\,
577