American Parts System

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 41 (N.L.R.B. 1977)

AMERICAN PARTS SYSTEM
American Parts System and Chauffeurs, Teamsters
and Helpers Local Union No. 776. Case 4-CA-
8291
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 14, 1977, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, American Parts
System, Harrisburg, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
FRANK H. ITKIN, Administrative Law Judge. The Union
filed an unfair labor practice charge in this case on October
28 and a complaint issued on November 29, 1976. A
hearing was held in Harrisburg, Pennsylvania, on January
11 and 12, 1977. The issue presented is whether Respon-
dent Company violated Section 8(aX5) and (1) of the
National Labor Relations Act by negotiating with the
Union with no intention of entering into any final or
binding collective-bargaining agreement. Upon the entire
record, including my observation of the witnesses, and
after due consideration of the briefs filed by the parties, I
make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Respondent, a Delaware corporation, is engaged in the
operation of an automobile parts distribution center in
Harrisburg. During the past year, Respondent sold and
shipped products valued in excess of $50,000 directly to
firms located outside Pennsylvania. It is undisputed and I
i Resp. Exh. 3 (June 25); Resp. Exh. 4 (July 13); Resp. Exh. 5 (August
16); Resp. Exh. 6 (September 27); and Resp. Exh. 7 (October 19). Lerten's
notes were received into evidence without objection.
232 NLRB No. 8
find and conclude that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. In addition, it is undisputed and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
On May 3, 1976, the Regional Director for Region 4 of
the Board certified the Union as exclusive bargaining agent
of Respondent's employees in the following unit:
All customer service employees, drivers, and warehouse
employees employed at the 48 North Cameron Street,
Harrisburg, Pennsylvania, facility, excluding all other
employees, guards, office clericals, and supervisors as
defined in the Act.
The Respondent and the Union thereafter met at five
bargaining sessions (June 25, July 13, August 16, Septem-
ber 27, and October 19, 1976). The evidence pertaining to
what transpired at these sessions is summarized below.
A. The June 25 Session
Erwin Lerten, an attorney specializing in labor relations,
was chief negotiator for Respondent Company in its
negotiations with the Union. Lerten, relying upon his notes
which were taken during the course of the five bargaining
sessions,' testified with respect to the first bargaining
session on June 25 as follows:
According to Lerten, the first session started at 10:08
a.m. Present for the Union were Arthur Hunsberger,
president of the Union, and Wayne Shughart, business
representative of the Union. Present for the Company were
Lerten and Earl Lauver, general manager at the Compa-
ny's Harrisburg facility. At the beginning of this session,
Shughart submitted to the company representatives the
Union's written contract proposal (G.C. Exh. 3). Lerten
"pointed out to the Union that [he] had asked to have the
contract proposal submitted in advance" and "since the
Company had not had a chance to look at it, the Company
would have to go over this proposal and come back with a
proposal of their own." Lerten "then asked if there was any
information which the Union wanted from the Company."
Hunsberger "requested a copy of the Company's group
insurance plan." Lerten gave Hunsberger a booklet
pertaining to the group insurance plan. Lerten also gave
Hunsberger a copy of the Company's retirement plan.
Lerten, in turn, requested copies of the Union's proposed
health and welfare and pension plans. The Union did not
have copies of these plans available.
Lerten recalled:
Mr. Hunsberger then stated that the union shop
clause [as contained in its proposed contract] is a must
and he [HunsbergerJ wanted to make it very clear that
there could be no contract unless the Union got a union
shop. [Lerten] stated this may or may not be a problem,
that the Company recognized that the issue of union
security was a negotiable item.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shughart stated "that any wage increase that was negotiat-
ed should be made retroactive to . . . June 25 .... "
Lerten replied "that the Company would not agree to
retroactivity .... 2
Lerten "asked" when the union representatives would be
"available to meet again." Lerten wanted bargaining
sessions to be scheduled "two days in a row" because he
had "to travel from California" and did not want "to break
continuity." The parties "agreed to meet July 13 at 9 a.m.,
with the understanding that [they] would not meet on the
afternoon of July 13, and [would meet] on July 14 at 9
a.m."3 According to Lerten, "There were no other subjects
discussed ... " at this initial session. This session ad-
journed about 11:25 a.m.4
Union President Hunsberger, in his testimony, recalled
that at this first session "we didn't get into any real
specifics." Hunsberger claimed that Lerten stated at this
session, inter alia, "in no way, shape or form would they
consider union shop"; that the Company "was not going to
pour any money into a pension plan that was administered
in part by the Teamsters because they had no intention of
pouring money down a rathole"; that the Company wanted
a I-year contract and the Union wanted a 3-year contract;
and that the Company "would not agree to retroactivity."
On cross-examination, Hunsberger acknowledged that his
letter and memorandum to the Region during the investi-
gation of this case, dated November 18, 1976 (Resp. Exh.
2), does not contain a statement "that the Company said
· . .at the first meeting that there was no way that they
could agree to a union security clause." Hunsberger
claimed that he "didn't put it in the letter." Hunsberger
acknowledged that the letter and memorandum recites:
"the Company stated that they [were] opposed to a closed
union shop." Hunsberger assertedly had made notes at this
bargaining session; however, Hunsberger's notes were not
brought to the hearing.5
B. The July 13 Session
Lerten testified that the second session started 9:10 a.m.
on July 13. Present for the Union "at the beginning of the
meeting" were Hunsberger and Shughart. Present for the
Company were Lerten and Lauver. Lerten recalled that he
submitted the Company's written counterproposal to the
union representatives (G.C. Exh. 4). The parties "then
started in a review of the Company's counter-proposal."
Lerten recalled that, as for "Section 1, Recognition" (G.C.
Exh. 4), Shughart noted that "the location was wrong since
the Company was going to move." Lerten "agreed on
behalf of the Company to add the address to which the
Company was going to move .... "
Lerten testified:
We then discussed Section 2, Union Security [G.C.
Exh. 4].... Mr. Hunsberger stated that the union
shop is a must, that if the Company would not agree to
2 Lerten recalled inquiring about dues and initiation fees. Hunsberger
replied that union dues were S9 per month and the initiation fee was $30 for
an employee earning less than $4.75 per hour.
3 Hunsberger was unavailable to meet during the afternoon of July 13.
4General Manager Lauver attended all five bargaining sessions.
According to Lauver, at the June 25 session, "Hunsberger said it must be a
a union shop, there's no use talking about anything
else. [Lerten] replied that this was a negotiable item
.... Mr. Hunsberger stated that the Union did not
have any contracts without a closed shop and there's
not going to be one in American Parts. [Lerten] replied,
is the Union saying that it will not negotiate on union
shop. Mr. Shughart replied, that's right.
According to Lerten, Hunsberger then referred to "Section
4, Rights of Management" (G.C. Exh. 4). Hunsberger
stated that "it takes away every right from employees
except the right to have a baby." Lerten replied: "this is
one of the most important provisions to the Company;
however, [the Company is] not going to say the same thing
as the Union; [the Company is] willing to negotiate on the
subject of management rights as well as anything else we
have proposed."
Lerten recalled that Shughart "commented" on "Section
16, Wage Rates" (G.C. Exh. 4). Shughart asserted: "that's
less than the people are making now." Lerten replied: "that
isn't true; that's what the people are making now; we don't
have any problem getting people at those rates." The
Union then examined various portions of the Company's
counterproposal for about 10 or 15 minutes. Hunsberger,
referring to "Section 27, Employer Investigations" (G.C.
Exh. 4), asserted that "polygraph tests are illegal." Lerten
disagreed. Hunsberger replied: "we are not going to let
anyone assent to a polygraph test." Lerten also recalled
that, with respect to "Section 28, Termination Of Employ-
ees For Health Reasons" (G.C. Exh. 4), Hunsberger
asserted that "it is illegal to terminate anyone at age 65."
Lerten disagreed.
Lerten testified:
Mr. Hunsberger then stated, their Union bylaws
require joining the Union after 30 days. [Lerten]
replied, what you are saying is that because of . . .
Union bylaws, you can't even negotiate on union shop.
The Company is willing to negotiate on union security;
if the Union wants to propose anything less than a full
union shop, the Company will look at it. There was no
reply from the Union representative when [Lerten]
made this statement.
In addition, as Lerten further testified:
It was at this point that [Union Representative] Don
Thomas arrived in the meeting room. Shortly thereaf-
ter, Mr. Hunsberger stated that we are at what you call
an impasse; without a full union shop we are just sitting
here spinning our wheels. Mr. Shughart then suggested
bringing in federal or state mediation.
Lerten agreed to mediation. Lerten asked if the Union
"wanted to meet tomorrow" as scheduled. Hunsberger
union shop" and Lerten "said it may or may not be a problem, but lit l is an
item for negotiation."
5 Hunsberger claimed that Walter Smithson, regional operations manag-
er and controller for the Company, was also present at this session. Lerten
and Smithson testified that Smithson was not present at this session.
Lerten's notes do not show Smithson present at this session (Resp. Exh. 3).
42
AMERICAN PARTS SYSTEM
"replied no; we cannot get a mediator that fast." This
session adjourned about 11:45 a.m.6
Hunsberger recalled, inter alia, that at this second session
the Company "said that they would in no way recognize
union security"; the Company "felt that no employee
should be forced to join the Union"; the Union asserted
that "we had no contracts which did not have a union
security clause" and "we were accountable to our Execu-
tive Board"; the Union stated that "there were too many"
items in the Company's proposed "Rights of Management"
clause; "we touched on a few things like seniority, but it
was very brief" - "this was a rather short meeting as
[Hunsberger] had a previous engagement in Lancaster";
and the Union stated that the Company's proposed section
on "Discipline and Discharge" was "far too long."
Hunsberger also recalled stating, inter alia, that "it looks
like you don't plan to increase the employees' wages and
[the Company] said, well, we have a never-ending supply of
applicants, and we can hire people at this rate, and we are
not going to grant an increase, period." Hunsberger also
recalled that the Union "objected strenuously to the
polygraph test and [the Company] said that was a
requirement .... 7
Donald Thomas, business agent for the Union, testified
that he "arrived late" at the second bargaining session.
Thomas asserted, inter alia, "' remember [the company
representative] saying that the Company . .. did not want
to have a union shop" - "the only thing that I remember
they had suggested is that they would not accept ours and
that they were looking at an open shop."
C. The August 16 Session
According to Lerten, the third session started at 9:10
a.m. on August 16. Present were Federal Mediator Harry J.
Aiken, Lerten, Lauver, Hunsberger, Shughart, and Smith-
son. Mediator Aiken "asked both parties to state their
positions." Lerten testified:
Mr. Hunsberger stated in reply to this request . . .
that the parties had two meetings, that the parties were
miles and miles apart, that the Company proposal was
not going to do the job, that basically we will talk about
union security and polygraph tests among many, many
issues, that the Union felt their proposal was a proper
one since it was standard Teamster language.
Lerten "replied that the Union has refused to bargain on
union shop .... " Hunsberger "replied that the Union is
going to insist on a union shop since the Union bylaws
require it." As for the proposed provision concerning
polygraph tests, Lerten explained that the Company
"widely used polygraph tests" and the tests were proper.
The Union, according to Lerten, was "strongly opposed"
to the use of polygraph tests "in any shape or form."
s Lauver, in his testimony, recalled that "Hunsberger said that the union
shop is a must, and if it can't be agreed upon, there's no use of talking any
further." Lerten responded: "It is a negotiable item."
I On cross-examination, Hunsberger acknowledged that he "might have"
said that "the Union did not have any contracts without a closed shop and
there's not going to be one at Amencan Parts." Hunsberger also
acknowledged that "we discussed areas of dispute in only general terms
There was a discussion concerning the "right to honor
picket lines." Lerten asserted "that the Company could not
have its employees honoring picket lines," noting that
"most of its customers are non-union ... and we cannot
afford to let our employees have the right to honor a picket
line during the terms of the contract .... " There was
discussion on the Union's "proposal on seniority." Lerten
asserted: "seniority should only apply in layoffs when
people would be losing their jobs"; on other issues, "skill
and ability should be the determining factor .... " Lerten
noted that "under the Company's proposal . . . if there
was a disagreement as to skill and ability . . . this issue
could be determined under the arbitration clause as
proposed by the Company ... ."
The parties discussed the "pension plan as proposed by
the Union." Lerten, as he testified, "pointed out that the
Company had its own pension plan" and "it was wrong to
pull the people out of that pension plan." Lerten added
that the Company actually "had no control whatsoever in
the Teamsters pension plan." Lerten "pointed out that in
view of what happened to the [Teamsters] Central States
Pension Plan, with the charges of corruption, et cetera ...
the Company in no way would agree to place its money
into a Teamsters plan."
Shughart, according to Lerten, agreed on the Company's
proposal on "jury duty" (sec. 23.02, G.C. Exh. 4) and its
proposal on "military service" (sec. 29.01). The parties
turned to "Checkoff, Article XVIII of the Union's
proposal" (G.C. Exh. 3). Lerten recalled:
I [Lerten] stated that this in my opinion was tied in
with union shop .... Mr. Shughart, at that point,
stated that the Union didn't really need checkoff. Mr.
Hunsberger contradicted [Shughart] and said that the
Union was going to insist on checkoff.
The parties turned to "sick leave." Lerten, as he testified,
"stated that the Company has a counter-proposal on sick
leave, and this was Section 21 of the Company proposal.
Mr. Shughart stated that the Company proposal on sick
leave was O.K." The parties turned to "bereavement pay"
and Lerten again "pointed out that the Company has a
counter-proposal on this, Section 23.05. And, Mr. Shughart
stated that the Company proposal on bereavement pay was
O.K."
the parties discussed wages. Lerten recalled that "Mr.
Shughart stated that a straight progression was O.K. but
the Company would have to up wages." Lerten replied:
"The basic test ... was the ability to [attractI and retain
skills"; the "wages proposed by the Company ... met this
test because we had no problem attracting and retaining
the necessary skills." Lerten testified:
At this point, Mr. Aiken commented that the parties
were apart on 19 substantial issues. Does anybody have
a new counter-proposal? [Lerten] replied the Company
Hunsberger claimed that Smithson was also present at this session. Lerten
and Smithson testified that Smithson was not at this session. Lerten's notes
support his testimony (Resp. Exh. 4).
Shughart. called as a rebuttal witness by the General Counsel, admitted
that he was present at this session, but he was asked no questions about
what transpired at the session.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has no new counter-proposal. Mr. Shughart then
replied that wages is one of the major issues.
There was a recess in this session at 11:05 a.m. to enable
the mediator to confer separately with the parties. The
parties reconvened about 1:35 p.m. According to Lerten,
Hunsberger, at this point, proposed a change in the
preamble. Lerten agreed. However, as Lerten testified:
Mr. Hunsberger stated that the Union still wanted a
union shop. On polygraph tests, he feels it is against the
law in Pennsylvania. [Lerten] replied, if the Union can
show it is against the law, [Lerten] will take out the
polygraph test. Mr. Hunsberger then stated that on the
right to honor a picket line, he was not against his
members making a delivery to customers unless the
customer is on strike, [he did not] want to be a party to
an agreement if one of the members gets injured.
[Lei ten] stated that this was just an excuse .... On
health and welfare and pension, Mr. Hunsberger stated
that the Union could go along with the Company's
health and welfare and pension program for a first
contract; however, he wanted the Company to pay the
full premium on the health and welfare, that the
Company should pay for dependents. [Lerten] replied
that the Company's feeling is that it's the obligation-of
the employee and not the employer ...
In addition, as Lerten recalled, Hunsberger asserted "that
the Company should not have the right to subcontract if
people were laid off"; "he wanted a successors and assigns
clause"; "he saw nothing wrong with the Union shop
stewards clause"; "as long as the business agent calls and
makes an appointment," he did not "see any problem" on
the subject of the "business agent"; he "wanted checkoff";
the Union's proposal "on discipline and discharge . ..
covers it well" and the Company "could put up work rules
if it wants"; "on holidays, vacations and wages . . . the
Union would accept some kind of compromise .... "
Lerten testified:
I [Lerten] replied I see no point in this if the Union is
going to insist on a full union shop; and Hunsberger
replied that the Union had to insist on a full union shop
since this was required by the Union bylaws. And
[Lerten] replied that as long as the Union's feet are set
in concrete there's no place to go.
Lerten recalled that Smithson noted that "union shop is a
problem" at another company warehouse "because of the
initiation fees"; "the Company lost good applicants
because of the compulsory union membership .... " The
mediator then called a recess and met with the parties
I Lauver recalled that "Hunsberger said a union shop is a must because
it's required by the bylaws" and Lerten responded: "Since the Union stands
in concrete on the union shop, there is no place to go." Lauver recalled that
Smithson referred to union shop as a "problem" at another company
warehouse because "it did affect hiring new employees because of the
initiation fee." Lauver noted that there was no discussion on "agency shop"
or "something less than union shop" at this or any other session. Lauver
recalled that Lerten "said if it isn't a union shop, there is no need for
checkoff . . Mr. Shughart said there was no need for checkoff but Mr.
Hunsberger said it was necessary for checkoff."
Walter Smithson. regional operations manager and controller for the
separately. Finally, the mediator called the parties together
and adjourned the session at about 2:25 p.m.8
Hunsberger, in his testimony, claimed that at this third
session "we explained to Mr. Aiken some of the stumbling
blocks we were encountering"; "we went through our
contract at length and we discussed several issues in the
contract that we could not live with"; and "we stated our
position ... that we have no contracts in the area that do
not have a union security clause and this was going to be a
must in a negotiated contract." Hunsberger "stated that we
wanted our seniority clause" - "they [the Company] felt
that their contract was what they wanted .... " Accord-
ing to Hunsberger, the Company proposed 7 holidays; the
Union proposed 11 holidays; the employees were receiving
7 holidays. On the "health and welfare plans," the
Company "wanted to keep their own plan." The Company
was "not going to have anything to do with any plans that
the Teamsters have any control over .... " On the subject
of "vacations," according to Hunsberger, the Company
"felt their plan was sufficient." Various other subjects were
assertedly discussed including subcontracting. Hunsberger
recalled that the "Company said that they would not agree
to" the Union's proposed checkoff or security clause "in
any way, shape or form, . . ." and that the Company
"went so far as to say all Teamsters are mafia connected
.... " Hunsberger recalled, inter alia, that the Company
stated that "they had an unending supply of applicants at
the wage rates they were presently paying and they were
not going to increase the rates" - "they weren't even going
to discuss the rate increase."
Hunsberger further recalled that there had been agree-
ment on "the change in the recognition clause"; "the
military clause" - "we agreed that we could live with" the
Company's military clause"; "we could live with their jury
duty clause"; "we said that we could live with their sick
leave provision"; and "we agreed that we could go along
with their bereavement pay ... " and "funeral leave"
proposals. Hunsberger asserted that during this session,
[W]e had stated that we might be able to move maybe
towards an agency shop. The Company said no way
would [they] have anything to do with anything other
than an open shop.
Hunsberger further asserted that,
.[W]e could reduce our demands on wages, vacations,
holidays, and funeral leave . . . and we could reduce
our demands in other areas .... The Company took
Company, attended the August 16, September 27, and October 19 sessions
only. At the August 16 session, according to Smithson:
Mr. Hunsberger said that the union shop was a necessary item for us
to have a contract with the Teamsters Union and that it was required
by the Union bylaws and that they have no contracts from . . . their
particular local that did not have a union shop clause ....
Lerten replied: "a union shop was a negotiable item." Smithson recalled
citing the "problems" in recruiting personnel which the Company had
encountered by having a union shop at another warehouse.
44
AMERICAN PARTS SYSTEM
the position that [their] counter-proposal. . . was their
proposal and that was it.9
Thomas testified that at this session "Mr. Lerten took the
position that" the union shop clause "was not acceptable to
them." Thomas claimed:
[A]s I recall it, we had a break, and we spoke to both
parties, both parties had a break; and then I asked
them, and I was the one who initiated it ... whether or
not they would accept an agency shop.
Thomas claimed that Lerten said "no." Thomas further
testified:
[A]t the third meeting, we were trying to find some
common ground, and we told them [the Company] that
we would be willing to move relative to wages, holidays
and vacations ... .o
D. The September 27 Session
Lerten testified that the next session started at 10:09 a.m.
on September 27. Present were Mediator Aiken, Lerten,
Lauver, Smithson, and Hunsberger. Also present, accord-
ing to Lerten, were Donald Thomas, business agent for the
Union, and Joe Biggie, a company representative. Media-
tor Aiken asked the parties "to review their positions."
Lerten testified:
Mr. Hunsberger was the first to reply and stated
number one is union shop; Company has [not] budged
for it; union shop is a must under the Union bylaws;
that the Union won't go along with the polygraph tests;
that the Union took issue with people not having the
right to honor a picket line; and that the seniority
clause proposed by the Company is fully unacceptable.
Mr. Hunsberger further stated that the Union wanted
an increase in holidays; that the Union wanted the
Union health and welfare and pension plan; that the
Union wanted an increase in vacations; that the Union
wanted a subcontracting clause and that the subcon-
tracting clause proposed by the Union is in all their
contracts; that the Union wanted their merger and
consolidation clause; that the Union wanted their
transfer of title clause; that the Union wanted their Art.
XI protection of rights, that this was a standard clause
in all of their contracts; that the Union wanted their
grievance and arbitration provision and wanted their
shop steward clause; and the Union wanted a Union
representative to be on the Company premises whether
with Company permission or not; that the Union
wanted a checkoff, that this was standard procedure,
9 On cross-examination, Hunsberger acknowledged that the Union's
executive board "would not approve" a contract without a "full union shop"
clause. Hunsberger claimed that Shughart was not at this meeting. Shughart
testified on rebuttal that he "attended the June and July meetings only.
'o On cross-examination, Thomas initially placed this third meeting on
or about October 6. Lerten testified that Thomas was not at the third
session. Lauver and Smithson also testified that Thomas was not present at
this meeting. And, Lerten's notes (Resp. Exh. 5) do not show Thomas
present at this session.
" Lauver testified that at this session "Mr. Hunsberger said that a union
shop was necessary for a contract and Mr. Lerten said it's a negotiable
item."
namely, a checkoff; that the Union wanted their
discharge clause, that this was standard language so far
as the Union was concerned; that the parties were far
apart on wage rates.
I [Lerten ] then stated that the Union was right so far
as the issues were concerned, but I considered there to
be other issues ....
I stated that the Company's position has not
changed on any of these issues at this time.
Mr. Aiken then stated that it might be profitable to
list the provisions on which there is agreement. Mr.
Aiken stated that the parties were in agreement on the
preamble, recognition, sick leave, jury duty, funeral
pay, and military leave. There was then a recess for a
Union caucus at 10:30 a.m. We then met, that is the
Company met with the Mediator at 12:35 p.m. The
parties reconvened with the Mediator at 1:45 p.m. At
that time the Mediator stated with both parties present,
after several conferences with both parties, both parties
are far apart; that the Union has to meet with its
members and see where they are; that it was best to set
another date for a meeting.
This meeting adjourned about 1:50 p.m.'I
E. The October 19 Session
The final session was on October 19. The session started
at 11:15 a.m. Present were Mediator Aiken, Hunsberger,
Thomas, Lerten, Lauver, and Smithson. According to
Lerten, Mediator Aiken "asked the parties to state their
positions, whether they had any change in positions since
the last meeting." Lerten recalled that "Hunsberger replied
first that the Union was unable to move on union security
or any of the economic issues, that there was no way the
Union was going to be embarrassed by a ... substandard
contract in any way, shape or form." Lerten, as he testified,
accused the Union of "not negotiating in good faith."
Union Representative Thomas asked, "is the Company
closing the door to changes in economic positions." Lerten
replied:
The Company was not closing the door on changes in
economic positions; however, the Company was not
proposing any increases in wages or benefits at this
time.
Hunsberger "asked for the Company's final proposal."
Lerten replied: "the Company has given the Union a
proposal." According to Lerten, "Mr. Hunsberger stated
Hunsberger recalled that at this session "there wasn't too much
discussed"; "there wasn't any movement by the Company in any area land]
I again accused them of bargaining in bad faith .... " Hunsberger asserted
that
Mr. Lerten took the position that this contract that he proposed ...
was the best thing for them and he would not move from it in an) way.
shape or form.
Hunsberger acknowledged stating that "union shop was a must .... "
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he didn't have the Company's proposal because he tore it
up." Lerten recalled:
Mr. Thomas stated that the Union will contact the
Company through Aiken's office.
The meeting adjourned about 11:45 a.m. According to
Lerten, "since October 19, 1976, 1 have not been contacted
by Mr. Aiken or the Union with reference to any further
meeting." 12
At this fifth session, according to Hunsberger, "there was
little or no discussion of anything" and "the Company
would not move from [its] contract." According to
Hunsberger:
I again accused them of bad faith and they said, no,
we're not bargaining in bad faith; I again asked the
Company if this was their final proposal and they said,
no it wasn't; and their only answer to me was we're
here; as long as we're here, we're bargaining in good
faith.' 3
As shown above, there are conflicts in testimony
concerning who was present and what was said during the
five bargaining sessions. I find and conclude, on the entire
record, that the testimony of Company Negotiator Lerten,
as detailed supra, is a reliable and trustworthy account of
the bargaining sessions. His testimony is corroborated in
part by the credible testimony of Lauver and Smithson. His
testimony is corroborated in part by his longhand notes
which were prepared at the bargaining sessions.14 His
testimony is also substantiated in part by the acknowledge-
ments of Union Representatives Hunsberger and Thomas.
Moreover, the testimony of Hunsberger and Thomas was,
at times, vague and unclear as to exactly what transpired at
these sessions. Therefore, insofar as the testimony of
Lerten, Lauver, and Smithson conflicts with the testimony
of Hunsberger, Thomas, and Shughart, I credit the former
as more reliable and complete on this record.
Discussion
General Counsel argues that Respondent Company
violated Section 8(a)(5) and (1) of the National Labor
Relations Act by negotiating with the Union with no
intention of entering into any final or binding collective-
bargaining agreement. In N.L.R.B. v. General Electric
Company, 418 F.2d 736, 762 (C.A. 2, 1969), cert. denied 397
U.S. 965 (1970), the Court stated:
[T]he statute clearly contemplates that to the end of
encouraging productive bargaining, the parties must
12 Lauver recalled that "Mr. Hunsberger said they were unable to move
on" the "union shop." Lauver also recalled Hunsberger saying that they
were "unable to move on" the "economic items." And, Lauver recalled that
"we ended when Mr. Thomas said that they would contact the Mediator,
contact the Company through the Mediator."
Smithson recalled:
Mr. Hunsberger stated that the Union could not accept the contract
without a union shop due to their bylaws.
': On cross-examination, Hunsberger acknowledged that he "might
have" opened this fifth session "by telling Mr. Aiken that the Union was
make "a serious attempt to resolve differences and
reach a common ground," N.LR.B. v. Insurance
Agents' Int'l Union, 361 U.S. 477, 486, 487, 488 (1960),
an effort inconsistent with a "predetermined resolve not
to budge from an initial position." N.LR.B. v. Truitt
Mfg. Co., 351 U.S. 149, 154-155 (1956) (Frankfurter J.,
concurring).
S * *
A pattern of conduct by which one party makes it
virtually impossible for him to respond to the other -
knowing that he is doing so deliberately - should be
condemned by the same rationale that prohibits "going
through the motions" with a "predetermined resolve
not to budge from an initial position." See N.LRB. v.
Truitt Mfg. Co., supra (concurring opinion).
In N.L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229,
231-232 (C.A. 5, 1960), the court stated:
The obligation of the employer to bargain in good
faith does not require the yielding of positions fairly
maintained. It does not permit the Board, under the
guise of finding of bad faith, to require the employer to
contract in a way the Board might deem proper. Nor
may the Board ". . . directly or indirectly, compel
concessions or otherwise sit in judgment upon the
substantive terms of collective bargaining agreements
.... " for the Act does not "regulate the substantive
terms governing wages, hours and working conditions
which are incorporated in an agreement."
On the other hand, while the employer is assured
these valuable rights, 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
sophistication and finesse. [Citations omitted.]
More recently, in Borg-Warner Controls, a Division of
Borg-Warner Corporation 198 NLRB 726, 729-730 (1972),
the Board, Chairman Miller dissenting, stated:
[T]his case does not present a simple case of whether
the Respondent's actions constituted an outright
refusal to bargain with the certified representative of
the employees, but rather whether the record establ-
ishes that the Respondent engaged in a lengthy series of
bargaining conferences with no intention of reaching
agreement with the union.
unable to move on union security or the economic issues." Hunsberger then
added: "not the economic" issue; "it had already been established, that we
were willing to move at the third meeting."
Thomas, in his testimony, claimed that "Mr. Hunsberger said that it was
the desires of the local to have a union shop and again [Lerten] said that
[he I would not bargain on that." Thomas also claimed that he "personally
suggested ... an option of agency shop." Lerten assertedly refused.
14 I am persuaded here that Lerten's longhand notes of the bargaining
sessions (Resp. Exhs. 3 through 7) are more reliable than the Union's
typewntten statement and memorandum which was submitted to the
Region during the investigation of this case (Resp. Exh. 2). The above
exhibits were received into evidence without objection.
46
AMERICAN PARTS SYSTEM
The issue is not, as Respondent suggests, that
Respondent did not make enough concessions. Rather,
the issue is whether Respondent's approach to bargain-
ing demonstrated an unyielding rigidity during negotia-
tions which made collective bargaining a futility.
Respondent's unyielding rigidity is clearly established
both in terms of Respondent's substantive proposals
and its conduct relative to the procedural consider-
ations of bargaining. Accordingly, the totality of
Respondent's conduct during its bargaining compels
the conclusion that Respondent only went through the
elaborate motions of bargaining and adapted its tactics
to its own ends with no sincere desire of reaching an
agreement. [Footnote omitted.]
And, as the Board noted in Borg-Warner, "no case
involving an allegation of surface bargaining presents an
easy issue to decide"; "no two cases are alike"; and "none
can be determinative precedent for another, as good faith
bargaining 'can have meaning only in its application to the
particular facts of a particular case'...." quoting from
N.LR.B. v. American National Insurance Co., 343 U.S. 395,
410 (1952).
Applying these principles to the credited evidence recited
above, I find and conclude that here, like in Borg-Warner
Controls, supra, the Company's "approach to bargaining
demonstrated an unyielding rigidity during negotiations
which made collective bargaining a futility .... " At the
first session, the Union submitted its proposed written
contract (G.C. Exh. 3). At the second session, the
Company submitted its proposed written contract (G.C.
Exh. 4). Each party pressed for its contract. A mediator
was brought in at the request of the Union. The Union
thereupon agreed to the Company's sick leave, military
service, jury duty, and bereavement pay clauses. And, as
Company Negotiator Lerten recalled, "[Union Representa-
tive] Hunsberger stated that the Union could go along with
the Company's health and welfare and pension program
for a first contract .... " Hunsberger, however, urged the
Company to "pay the full premium" on the health and
welfare program. Lerten refused. According to Lerten,
Hunsberger also stated: "on holidays, vacations and wages
. . .the Union would accept some kind of compromise
.... " Lerten, as he testified, "replied, I see no point in
this if the Union is going to insist upon a full union shop."
The Company made clear that, although willing to talk,
it was in effect insisting upon its proposed contract.
According to Lerten, the Company "was not proposing any
increases in wages or benefits at this time .... " In
addition, the Company's proposed contract provided for,
inter alia, a broad "rights of management" clause contain-
ing some 26 sections; a broad "discipline and discharge"
clause listing some 51 "just cause" grounds for discharge; a
"grievance procedure" and "arbitration" clause with the
"result of [a] polygraph test . . . binding upon all parties
.. ." and excluding from its coverage "any matter reserved
solely to the rights of Management, or to the discretion of
the Employer .... " and a no-strike clause. The Compa-
ny's proposed "rights of management" clause reserved to
the Employer, inter alia, the "location of the business,
including the establishment of new warehouses or depart-
ments . . . and the relocation or closing of warehouses,
departments [etc.]...." "the determination of the em-
ployees who are to be transferred because of lack of
work...." "the placing of service, maintenance or
distribution work with outside contractors or subcontrac-
tors"; "the determination of safety, health and property
protection measures...." and "the right to terminate,
merge or sell the business .... " The Company's proposal
on "wage rates" provided that "nothing herein shall
preclude the paying of a higher wage or salary at the sole
discretion of the Employer .... " The Company's pro-
posed "strikes, lockouts and boycotts" clause provided that
"violation of any provision of this Section . . . by the
Union shall be just cause for the Employer's immediate
termination of the Agreement without notice . . "and
"violation of any provision of this Section . . . by any
employee . . . shall be just cause for the immediate
discharge of that employee regardless of whether or not
that employee or any of the employees ... are engaged in
a strike which is found by the NLRB or any court.. . to
be an 'unfair labor practice strike'...."
A close examination of the Company's proposed con-
tract makes it "difficult to believe that the Company with a
straight face and in good faith could have supposed that
this proposal had the slightest chance of acceptance by a
self-respecting union, or even that it might advance the
negotiations by affording a basis of discussion; rather, it
looks more like a stalling tactic by a party bent upon
maintaining the pretense of bargaining." Cf. N.LR.B. v.
Reed & Prince Manufacturing Company, 205 F.2d 131, 139
(C.A. 1, 1953), cert. denied 346 U.S. 887. Indeed, as the
Board found in American Steel Building Company, Inc., 208
NLRB 900, 910 (1974):
[R]espondent made no significant concession toward
granting the employees any job security or economic
benefit. While respondent's representatives denied
having verbalized a determination not to agree to any
significant changes in existing terms and conditions of
employment, the course of their bargaining eloquently
and unmistakably conveyed that message. Under
respondent's purported contract proposals, the employ-
ees would have secured no substantial benefit. On the
contrary, in some major respects they would have been
worse off with Respondent's proposed contract than
without any contract. For example, while the employ-
ees would have renounced all right to strike, Respon-
dent would have retained "the unrestricted right and
privilege to suspend, transfer, cease, relocate or resume,
at its discretion, the operation of its business, or any
part thereof" and "the right to subcontract any work or
job." Without a contract, the Union would have been
entitled to negotiate on such matters and if necessary to
strike. Without a contract, the Union could strike for
higher wages, whereas Respondent offered no general
wage increases and proposed a contractual agreement
that individual increases could not be considered
"discriminatory" ....
Moreover, as stated by the Board in San Isabel Electric
Services, Inc., 225 NLRB 1073 (1976), the company's
proposed contract in effect "would strip the Union of any
effective method of representing its members on the issues
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of safety and work rules . . ." further excluding it "from
any participation in decisions affecting important condi-
tions of employment . . . thus exposing [the company's]
bad faith."
It is true, as Respondent argues, that the Union made
clear throughout the bargaining sessions that "union shop"
is "a must" and "there could be no contract unless the
Union got a union shop." It is also true, however, as found
above, that the Union manifested some willingness to
compromise after the mediator entered the negotiations.
The Union accepted some proposals of the Company and
expressed a willingness to "go along with the Company's
health and welfare and pension program for a first
contract" if the Company would pay the "full premium for
dependents." The Union indicated that it "would accept
some kind of compromise...." on holidays, wages, and
vacations. The Company, with minor exception, refused to
budge from its initial written proposal. When pressed,
Lerten asserted:
I see no point in this if the Union is going to insist on a
full union shop.
In short, although the Union expressed some willingness to
compromise, management blocked any effort to get it to
move from its initial proposal.?5
I am persuaded here that Respondent presented and
thereafter rigidly adhered to a proposed contract which it
understood would not be accepted. Efforts by the Union in
this case to discuss and effect compromise were summarily
blocked by the Company by citing the Union's position on
union shop and union security. I am persuaded here that
Respondent's conduct during negotiations makes it clear
that it had no intention of reaching an agreement with the
Union. As the Board noted in Borg-Warner Controls, supra,
"we do not find, nor do we suggest, that Respondent's
refusal to make concessions with regard to economic
matters violates the Act." Nevertheless, I am persuaded
here that an analysis of Respondent's proposals and its
conduct "showed a rigidity so intense as to warrant an
inference that Respondent was seeking the avoidance
rather than the obtaining of an agreement"; that "Respon-
dent was actively pursuing a course of bargaining that was
designed to compel the Union to reject its proposal; [and]
that [Respondent] patently [engaged] in surface bargaining
without a good-faith intention of reaching agreement
.... " in violation of Section 8(a)(5) and (1) of the Act.
(Ibid.)
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
15 The Company argues that "the Union's bad faith bargaining
precluded any Company bad faith bargaining," citing Continental Nut
Company, 195 NLRB 841(1972). That case is distinguishable. There, as the
Administrative Law Judge found, "the Union's refusal to bargain in good
faith ... removed the possibility of negotiation and precluded the existence
of a situation in which [the Company'slgood faith could be tested .... "In
the instant case, the Charging Party Union had not "removed the possibility
of negotiation"; on the contrary, it had manifested a willingness to effect a
compromise on significant issues.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the certified bargaining agent for the
Company's employees in the following appropriate unit:
All customer service employees, drivers, and warehouse
employees employed at the 48 North Cameron Street,
Harrisburg, Pennsylvania, facility, excluding all other
employees, guards, office clericals, and supervisors as
defined in the Act.
4. The Company violated Section 8(a)5) and (1) of the
Act by, from about June 25 to October 19, 1976,
negotiating in bad faith with the Union with no intention
of entering into any final or binding collective-bargaining
agreement.
5. The unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent engaged in the unfair
labor practices as set forth above, I recommend that it
cease and desist from engaging in such conduct or like and
related conduct, and take certain affirmative action
designed to effectuate the policies of the Act. I also
recommend that Respondent be ordered to bargain
collectively and in good faith, upon request, with the
Union as the exclusive bargaining representative of its
employees in the unit set forth above; in the event that an
understanding is reached, to embody such understanding
in a signed agreement; and to post the attached notice.
In order to insure that the employees will be accorded
the statutorily prescribed services of their selected bargain-
ing agent for the period provided by law, I recommend that
the initial year of certification begin on the date that
Respondent commences to bargain in good faith with the
Union as the bargaining representative in the appropriate
unit. Southern Paper Box Company, 193 NLRB 881, 883
(1971).
ORDER 16
Respondent American Parts System, Harrisburg, Penn-
sylvania, 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 or conditions of employment with Chauffeurs,
Teamsters and Helpers Local Union No. 776 as the
exclusive representative of its employees in the appropriate
unit described below:
All customer service employees, drivers and warehouse
employees employed at the 48 North Cameron Street,
's In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
48
AMERICAN PARTS SYSTEM
Harrisburg, Pennsylvania facility, excluding all other
employees, guards, office clericals and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate 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 representative of its
employees in said unit, and embody in a signed agreement
any understanding reached.
(b) Post at its facility in Harrisburg, Pennsylvania, copies
of the attached notice marked "Appendix."' 7 Copies of
said notice, on forms provided by the Regional Director for
Region 4, 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
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NoTncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively and in
good faith concerning rates of pay, hours of employ-
ment, and other terms and conditions of employment
with Chauffeurs, Teamsters and Helpers Local Union
No. 776, as the exclusive bargaining representative of
our employees in the unit described below:
All customer service employees, drivers and
warehouse employees employed at the 48 North
Cameron Street, Harrisburg, Pennsylvania, facili-
ty excluding all other employees, guards, office
clericals, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively and in
good faith concerning rates of pay, hours of employ-
ment, and other terms and conditions of employment
with the above Union as the exclusive bargaining
representative of our employees in the appropriate
bargaining unit as stated above and embody any
understanding reached in a signed agreement.
AMERICAN PARTS SYSTEM
49