Northwestern Dodge, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 877 (N.L.R.B. 1981)

NORTHWESTERN DODGE, INC.
Northwestern Dodge, Inc. and Local 376, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Vartkes Haroutunian. Cases 7-CA-15863 and
7-CA-15827
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 22, 1980, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions and an argument in
support thereof.
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, find-
ings,' and conclusions of the Administrative Law
Judge to the extent consistent herewith, and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by unilaterally altering the vacation pay plan con-
tained in the expired collective-bargaining agree-
ment with the Union by imposing a condition not
discussed during negotiations2 and by refusing to
process employee grievances under the grievance
procedure of the expired collective-bargaining
agreement. We agree.
The Administrative Law Judge also found that
Respondent violated Section 8(a)(3) and (1) of the
Act by laying off employees Vartkas Haroutunian
and Philip Maniscalchi. In reaching this result, the
Administrative Law Judge relied on his finding
that certain aspects of Respondent's conduct dem-
onstrated animosity toward the Union and Harou-
'No exceptions were filed to the Administrative Law Judge's dismissal
of the complaint allegations that Respondent violated the Act by engag-
ing in surface bargaining; by refusing to provide the Union with certain
requested information and to meet with the Union at reasonable times for
the purpose of collective-bargaining; and by implementing certain eco-
nomic changes without first bargaining or consulting with the Union
after an impasse was reached in the bargaining. Although no exceptions
were taken to the Administrative Law Judge's findings regarding the par-
ties reaching an impasse, we note our disagreement with his discussion of
the Board's Decision in Excavation-Construction, Inc., 248 NLRB 649
(1980).
Although Respondent did not except to the findings on which this
violation was premised, it has excepted to the Administrative Law
Judge's Conclusions of Law and recommended Order based thereon. Ac-
cordingly, we have considered the issues to be before us and have af-
firmed the findings and conclusions of the Administrative Law Judge re-
lating to it and adopt his recommended Order in that regard.
258 NLRB No. 118
tunian, and that Respondent's alleged business justi-
fications for the layoffs were pretextual. The Gen-
eral Counsel urges the Board to adopt the Admin-
istrative Law Judge's finding of unlawful layoffs
and contends that this finding is further supported
by certain facts which the Administrative Law
Judge erroneously failed to consider. Respondent
excepts to the Administrative Law Judge's finding
of animosity and asserts that, since its economic
justifications for the layoffs are supported by un-
controverted evidence, the Administrative Law
Judge improperly found them to be unlawfully mo-
tivated. For the reasons set forth below, we find
that Haroutunian and Maniscalchi were not unlaw-
fully laid off.
The pertinent facts are not in dispute. Respond-
ent employed four used-car salesmen, Maniscalchi
being the least senior and Haroutunian being next
to the last in seniority. The most recent collective-
bargaining agreement between Respondent and the
Union covering new- and used-car salesmen pro-
vides that, should business conditions require a re-
duction in the work force, layoff and recall of
salesmen shall be by seniority except where sales
performance is unequal, in which case a more
senior employee having a lower total unit sales or
sales gross within the immediate preceding 6-month
period may be laid off first.
Prior to the June 30, 1978,3 expiration of their
most recent collective-bargaining agreement the
parties commenced negotiating the terms of a new
agreement. Throughout negotiations the Union was
represented by Eddie Petroff, its principal officer
and business agent; Howard Lewis, the union ste-
ward and a new-car salesman; and Haroutunian, a
used-car salesman. Respondent was represented by
Alfred Woroniec, its president and general man-
ager, and Roy Hunsinger, its attorney. Sometime
during the first negotiating session on June 20,
Woroniec said to Petroff, "I object to [Haroutun-
ian] being in the room, he is not here representing
the salesmen, he is here representing himself." Pe-
troff responded that Haroutunian was a member of
the bargaining committee and was asked to be pres-
ent at the bargaining session. 4 After some discus-
sion the matter was dropped and Haroutunian was
permitted to remain at subsequent bargaining ses-
sions. Thereafter, at a sales meeting on November
14, Woroniec said, inter alia, that he was tired of
this "union bullshit"; that it was causing a reduc-
3 All dates herein are in 1978 unless otherwise indicated.
4 Art. VIII, sec. 4, of the parties most recent collective-bargaining
agreement provides that the Union, in contract negotiations, "may be
represented by employees in the bargaining unit, not to exceed one." that
the representative may be selected in any manner the Union desires, and
that the Union shall designate the representative to the Company
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in sales; and that he would like to tackle it on
the showroom floor. Subsequently, on November
27, during an exchange at the parties' eighth and
final negotiating session, Hunsinger commented
that "the LAHA is a break even thing."5 When
Haroutunian laughed and replied, "[y]ou gotta be
kidding," Hunsinger stood, said, "Hey [Haroutun-
ian], I don't want to listen to any more of your
shit," slammed his books, and began packing them
in his briefcase. As Haroutunian retorted, "I've
been listening to your bullshit since day one," and
began citing the LAHA practices of other dealer-
ships, Respondent's representatives left the room.
According to Maniscalchi's uncontradicted testi-
mony, which was not discussed by the Administra-
tive Law Judge, sometime in late November, he
was told by General Sales Manager Ronald W.
McGee, "I think you [Maniscalchi] are going to
become assistant used car manager," but that Man-
iscalchi should say nothing until the appointment
became official. A day or two later General Man-
ager Woroniec, during a telephone conversation
with Maniscalchi, expressed approval of Maniscal-
chi's consistent presence in the used-car lot; said,
"we ought to make you assistant used car manager,
there"; and indicated he would talk to Maniscalchi
later.
On the evening of November 30, Maniscalchi
and Haroutunian were individually called into the
office of Used-Car Manager Edward Kennedy,
their immediate supervisor, and told by Kennedy
that business was bad and that economic reasons
dictated their layoffs. In response to Haroutunian's
demand that the reason for his layoff be put in
writing, that evening he and Maniscalchi received
letters, signed by Kennedy, stating, "Due to eco-
nomic conditions you are temporarily being laid
off." Through the date of the hearing neither Man-
iscalchi nor Haroutunian had been recalled or re-
placed.
The General Counsel contends that the forego-
ing evidence supports a finding that Respondent
demonstrated animosity toward the Union and
Haroutunian; that Respondent laid off Haroutunian
in retaliation for his agressive espousal of the
Union's cause during contract negotiations; and
that to appear to be in compliance with the layoff
provisions of the collective-bargaining agreement
and to conceal the unlawful basis for Haroutunian's
layoff, Respondent laid off Maniscalchi as well.
Respondent contends that Haroutunian and Man-
iscalchi were laid off for economic reasons. In sup-
port of that contention, Respondent relies on the
I LAHA refers to credit life insurance policies sold to customers along
with their automobiles. Respondent was placing its LAHA insurance
with CAW Agency, Inc., owned by Woroniec's wife.
uncontradicted testimony of Woroniec and certain
documentary evidence. Thus, Woroniec testified
that to be "profitable" an auto sales department
must have a 50-percent "retention [rate]," meaning
that direct selling expenses cannot exceed 50 per-
cent of the department's total gross income.6 Wor-
oniec explained that direct selling expenses include
salespersons' commissions, demonstrator cars, and
employee fringe benefits. He stated that the com-
mission for used-car salesmen at other "profitable"
dealerships was about 27 percent of total gross
income, whereas in Respondent's used-car depart-
ment the commission averaged 42.7 percent of total
gross income. With the announcement of new-car
prices in September and October 1978, Woroniec
observed that people stayed away from Respond-
ent causing its sales to drop and its net profits,
which had been declining since January 1978, to
decline even more. Indeed, in November the
volume of used-car sales was 50 percent of the pre-
vious month's average7 and the retention rate in
that department was 27 to 30 percent rather than
the desired 50 percent. Woroniec also testified that
while layoffs in the used-car department had been
considered in the past, the negative turn of eco-
nomic factors compelled layoffs in November, and
that to offset operating expenses it was necessary
to lay off two employees. Woroniec averred that
the determination of which employees would be
laid off was based on a 6-month review of the unit
sales and gross sales of each employee as well as
seniority and that based on this review Maniscalchi
and Haroutunian were selected for layoff because
they were not selling enough units to make the op-
eration profitable. In this regard, the documentary
evidence shows that during the 6-month period
used to review employee sales performance, Manis-
calchi, the least senior employee, was the lowest in
units sold and the lowest in gross sales, and Harou-
tunian, next to the last in seniority, was the next
lowest in both categories. Woroniec testified that
following the layoffs Respondent's retention rate in
the used-car department improved.
Based on the record as a whole, we find that the
General Counsel has failed to establish, by a pre-
ponderance of the evidence, that the layoffs of
Haroutunian and Maniscalchi were discriminatorily
motivated. Woroniec's challenge to Haroutunian's
presence at the first bargaining session is consistent
with the provision of the parties' most recent col-
lective-bargaining agreement restricting to one the
6 Total gross income is defined as the difference between the sales
price and acquisition cost of a vehicle.
' Whereas Respondent's used-car department had been averaging 36.6
sales per month during the first 10 months of 1978, there were only 22
units sold in November.
878
NORTHWESTERN DODGE, INC.
number of employee representatives allowed the
Union. Since new-car salesman and union steward
Lewis was also present during this session, Woron-
iec's charge that Haroutunian was there to repre-
sent himself and not the Union is understandable.
In addition, we note that Haroutunian was allowed
to remain and participate in that and all ensuing ne-
gotiating sessions without further objection. With
respect to Hunsinger's remark to Haroutunian at
the end of the last negotiating session, it clearly
was provoked by Haroutunian's belittlement of
Hunsinger's statement about LAHA. As such, it
amounted to a spontaneous albeit caustic retort-a
retort to which Haroutunian replied in kind with-
out further incident. We also note that this incident
occurred as 5 months of negotiations were coming
to an unsuccessful close; that is, at a point when
the feelings of the negotiators likely were tense and
frayed. In these circumstances, we consider the ex-
change between Hunsinger and Haroutunian to be
nothing more than an example of the free, and
sometimes acrimonious, interplay that often occurs
during negotiations. 8 Also, Woroniec's statement to
unit employees that he was tired of this "union
bullshit," whatever it implied about his feelings
toward the Union, cannot be translated into animus
against Haroutunian merely because he was partici-
pating in the negotiations then in progress. As for
Maniscalchi there is no evidence that he engaged
in, or was believed to have engaged in, any activi-
ties on behalf of the Union. Finally, Respondent's
assertion that Haroutunian and Maniscalchi were
laid off for economic reasons is substantiated by
the general decline in its net profits, the dramatic
drop in the volume of its used-car sales that No-
vember, and the fact that the two employees laid
off had not been replaced at the time of the hear-
ing. Furthermore, in determining which used-car
salesmen would be laid off, Respondent followed
the terms of the expired contract by selecting the
two least senior and productive employees, Harou-
tunian and Maniscaichi.9
Based on the foregoing, we find that the General
Counsel has failed to meet his burden of proving
that the layoffs of Haroutunian and Maniscalchi
were unlawfully motivated. We shall, therefore,
dismiss the complaint allegations pertaining to their
layoffs.
' E.g., The Bettcher Manufacturing Company. 76 NLRB 526, 527 (1948).
' In light of these circumstances, we give little weight to Maniscalchi's
testimony to the effect that sometime in November he was advised he
was being considered for the position of assistant used-car manager. The
comments of McGee and Woroniec upon which Maniscalchi relied in
giving this testimony, were qualified sufficiently as to be ambiguous and
illusory, McGee's by " think .. ." and Woroniec's by "we ought to
... " Moreover, there is no indication in the record that when these
comments were made to Maniscalchi. McGee and Woroniec were aware
that his sales figures were the lowest in the department.
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, as modi-
fied below, and hereby orders that the Respondent,
Northwestern Dodge, Inc., Royal Oak, Michigan,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraphs l(a) and 2(a) and reletter
the subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally, without giving
prior notice to and engaging in collective bar-
gaining with the designated collective-bargain-
ing representative of our employees, modify
our vacation pay plan or otherwise change any
term or condition of employment of our em-
ployees.
WE WILL NOT refuse to bargain collectively
with the designated representative of our em-
ployees by refusing to accept or to bargain
with said designated representative about em-
ployee grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL make whole our employees for
any losses they may have suffered by reason of
our unlawful modification of our vacation pay
plan, together with interest thereon.
NORTHWESTERN DODGE, INC.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: The
charge of unfair labor practices in Case 7-CA-15863 was
filed on December 12, 1978,' by Local 376, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, and in
Case 7-CA-15827 on December 1 by Vartkes Haroutun-
Unless otherwise indicated, all dates refer to the calendar year 1978.
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ian, herein sometimes referred to as Bob Hart. On Janu-
ary 30, 1979, the above-numbered cases were consoli-
dated and a complaint in the consolidated cases was
issued alleging that Northwestern Dodge, Inc., herein
called the Company, has engaged in and is engaging in
conduct constituting unfair labor practices within the
meaning of Section 8(a)(l), (3), and (5) of the National
Labor Relations Act, as amended. The complaint, as cor-
rected on May 4, 1979, in substance, alleges that Re-
spondent:
(1) On November 30 unlawfully laid off its em-
ployees Bob Hart and Philip Maniscalchi (herein
also called Phil Manis) in retaliation against them
for their support of and activities on behalf of the
Union.
(2) Since June 27 has refused to bargain collec-
tively with the Union as the recognized representa-
tive of an appropriate unit of its new-and-used-car
salesmen by engaging in surface bargaining with a
fixed intent not to reach agreement with the Union.
(3) Has further refused to bargain collectively
with the Union by: (a) since May engaging in a
series of dilatory tactics including (i) an unreason-
able delay in furnishing the Union with information
relative to the earnings of the salesmen on account
of the sale of life, accident, and health insurance
(herein referred to as LAH or LAHA), (ii) a failure
to furnish the Union with requested information
concerning the average profit per vehicle sold by
Respondent, and (iii) refusals in August and Sep-
tember to meet with the Union at reasonable times
for the purposes of negotiations, (b) on December 1
unilaterally implementing its final economic con-
tract proposals although the parties to the collec-
tive-bargaining negotiations had not reached an im-
passe, (c) in December and on January 10, 1979, re-
fusing to bargain with the Union concerning griev-
ances arising under the expired contract, (d) on Jan-
uary 10, 1979, unilaterally, without prior notice to
the Union, severing the employment of Bob Hart by
changing his status from that of a laid-off employee
to that of a terminated employee, and (e) on Janu-
ary 10, 1979, unilaterally altering the vacation plan
set forth in the parties' expired contract.
(4) By the foregoing conduct also has interfered
with, restrained, and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act.
Respondent duly filed an answer denying that it has en-
gaged in the alleged unfair labor practices. A hearing in
these proceedings was held in Detroit, Michigan, on De-
cember 17, 18, and 19, 1979. Post-trial briefs were filed
with the Administrative Law Judge by the General
Counsel and by Respondent.
I read the entire transcript of the testimony taken at
the hearing and studied the exhibits introduced in evi-
dence. At the hearing I observed the witnesses and heard
the testimony given by them. The opinions I formed re-
garding the credibility of the witnesses and the reliability
of their testimony have influenced my resolution of the
conflicts in the testimony that appear in the record and
have influenced the findings of fact I have made to the
extent that they are based on the testimonial evidence. I
have attempted to identify all "inconsistencies, ambigu-
ities, contradictions and incredible statements" in the tes-
timony as the Board in Eastern Engineering & Elevator
Co., Inc., 247 NLRB 43 (1980), suggests be done and
have otherwise sought to follow the guidelines of that
case.
Upon the entire record in these cases I make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Northwestern Dodge, Inc., a Michi-
gan corporation, at its place of business in Royal Oak
Township, Michigan, is engaged in the sale and distribu-
tion of new and used motor vehicles and related prod-
ucts. During the calendar year 1978, which period is rep-
resentative of its operations, Respondent's income from
sales exceeding $500,000 and its purchases of auto-
mobiles, trucks, and other materials were valued at in
excess of $500,000, of which in excess of $50,000 were
transported through channels of interstate commerce to
its Royal Oak Township facility. Respondent admits, and
I find, that it is an employer within the meaning of Sec-
tion 2(2) engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Company, which is a large Chrysler dealership in
both physical size and volume of sales, is a management
investment store, that is, Chrysler Corporation owns all
the outstanding shares of its preferred and common
stock, but the appointed manager has broad operational
authority including full control over its labor relations.
During the times material hereto the Company's presi-
dent and general manager was Alfred Woroniec, who
was seeking to purchase the dealership under a profit-
sharing arrangement with Chrysler Corporation whereby
each year 25 percent of the Company's profits is set
aside and allocated towards the purchase by Woroniec of
shares of the Company's common stock (75 percent of
the profits are paid to Chrysler Corporation). In charge
of the used-car department was Edward Kennedy.
The Company and the Union have been parties to a
number of collective-bargaining agreements covering the
Company's new- and used-car salesmen. The most recent
agreement was effective from July 1, 1974, until June 30,
1976, and was extended without change for 2 additional
years until June 30, 1978. By letter dated April 25 the
Union's business agent, Eddie Petroff, served notice on
the Company of the Union's desire to renegotiate the
terms of the agreement. Enclosed with the notice was
the Union's proposals for modification of the subsisting
agreement. Woroniec on behalf of the Company ac-
knowledged receipt of the Union's notice by letter dated
880
NORTHWESTERN DODGE, INC.
May 3, informed the Union that the Company also
wished to renegotiate the terms of the subsisting agree-
ment, and, in particular, that it deemed objectionable the
provisions relating to "used car sales commissions, fi-
nance and insurance provisions, new car pay plan,
Christmas bonus, Health and Welfare provisions and
demonstrator vehicles."
A. The Negotiations
Following the April and May exchange of letters and
a number of telephone conversations between union and
the company representatives, the first negotiating meet-
ing was scheduled for June 20. The parties met in total
eight times on June 20 and 27, July 7, 20, and 27, Octo-
ber 10 and 16, and November 27. The Union was repre-
sented at these meetings by Eddie Petroff, its principal
officer and business agent, and by two of the Company's
salesmen; namely, Howard Lewis, a new-car salesman,
and Bob Hart, a used-car salesman. The Company was
represented by its president and general manager, Alfred
Woroniec, and by its attorney, Roy Hunsinger. In addi-
tion, beginning with the July 20 session Leon Cornfield,
a mediator with the Michigan Employment Relations
Commission, also attended the meetings.
This is another of those cases where the negotiating
parties after a series of meetings were unable to reach
agreement and on the charge of the Union the General
Counsel issued a complaint alleging that the Company
had been going through the motions of collective bar-
gaining with no intention of reaching agreement. I have
had occasions to discuss the principles applicable hereto2
and need not now review them again. The thrust of the
General Counsel's complaint is that the Company delib-
erately sought to frustrate the negotiating process by in-
sisting upon a change in its salesmen's pay plan which
would result in a reduction in their commission earnings,
although the Company was not pleading poverty.'
Woroniec testified that his experience in the auto-
mobile industry taught him that for a retail dealership to
be successful it should operate so that each department
has a 50-percent gross profit in order that after deducting
overhead and other indirect expenses each department
would still show a net profit. He further testified that in
1973 when he first became associated with the Company
it was losing a great deal of money because its gross
profit relationships were far out of line; as an example,
the new-car department was then operating only at a 27-
percent gross profit. He undertook, therefore, to correct
the unfavorable departmental gross profit ratios. In 1974,
the dealership still lost money, but by 1975 his program
began "to take hold" and in that year the Company
made a small profit of less than $100,000 on sales of
about $13 million. Then, in 1976 the Company's profits
' K-Mart Corporation, 242 NLRB 855 (1979); Preterm, Inc.. 240 NLRB
654 (1979); Continental Insurance Company and Underwriters Adjusting
Company, 204 NLRB 1013 (1973), enfd. 495 F.2d 44 (1974); Wal-lite Divi-
sion of United States Gypsum Co., 200 NLRB 1098 (1972), enforcement
denied 484 F.2d 108 (8th Cir. 1973); The Orion Tool. Die and Machine
Company, 195 NLRB 1080 (1972); Vernon Calhoun Packing Company,
Inc., 173 NLRB 753 (1968), enfd. 436 F.2d 588 (5th Cir. 1971).
3 In 1979 the Company showed a loss from its operations. However, in
1978 when the negotiations were being conducted the Company was still
operating at a profit.
were $200,000 on sales of about $15 million; in 1977,
profits were about $300,000 on sales of $18 million and,
in 1978, profits were $200,000 on sales of about $18 mil-
lion. However, according to Woroniec, in the fall of
1978 the profit picture underwent an unfavorable change
because with the announcement of the prices for the
new-car line "[p]eople were shocked. They were just
staying away from the dealerships. They weren't coming
out to buy them like we normally saw in previous years.
.. . People were scared.... When they heard the price
of the car, they'd just back off." This trend continued so
that for 1979, as of the date of the hearing in these cases,
the Company lost approximately 139,000 on sales of be-
tween $12 million and $13 million.
Further explaining the Company's problems, Woroniec
testified that the commissions it was paying to its used-
car salesmen were approximately 42.7 percent of the
gross profits whereas for successful dealerships such
commissions should average about 27 percent,4 and the
commissions it was paying to its new-car salesmen were
about 24 percent of the gross profits, whereas the aver-
age commissions among successful dealerships were 18 to
20 percent; also the used-car lot was too small for the
volume of used-car business the Company was doing.
Another matter with which Woroniec was concerned
was that he was seeking to purchase the dealership to-
wards which 25 percent of the Company's net profits
was being applied and, unless operations continued prof-
itably, this could not be done because Chrysler Corpora-
tion required that the purchase of the dealership be made
only from dealership profits and not with other funds.
Hunsinger testified that in preparation for the negotia-
tions he met with Woroniec on May 18, at which time
they discussed the Company's bargaining objectives.
Woroniec complained that selling expenses generally
were too high and, in particular, the expenses of selling
used cars were so high that the Company probably
would be better off wholesaling its used cars and elimi-
nating that department, and that the agency with which
the Company was placing its LAH insurance, CAW
Agency, Inc., which is owned by his wife, was not
making money. With respect to LAH, Hunsinger pointed
out that direct payment of such commissions to the sales-
men contravened Michigan Law and would have to
cease. 5 Woroniec also complained that the current com-
missions arrangement reduced the incentive of salesmen
to increase unit sales because used-car salesmen were re-
ceiving 50 percent of gross profit "over $200 over lot
charge" and under such division of profits it was to their
advantage to sell fewer cars at greater gross profits while
' The General Counsel called Eddie Petroff as a rebuttal witness and
asked him: "Mr. Petroff, at any time during the contract negotiations
meeting did the company indicate to you any concern about used car re-
tentions [gross profit] being insufficient?" Petroff answered, "Absolutely
none." However, Petroff further testified when asked whether the Com-
pany had complained that its net profit was too low that "I have to
answer it this way: At one time they raised the question that profits in
the used car department are not what they should be. That's it."
5 The evidence regarding the payment of the LAH commissions is am-
biguous. The subsisting collective-bargaining agreement calls for the
Company to pay "18% commission on the [LAH] premium," but CAW
Agency, Inc., furnished each salesman a separate W-2 form reflecting his
LAH commissions.
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the dealership required a larger number of used-car sales
than was being generated at the time, and because the
income of the new-car salesmen was being maintained
largely because the unit prices of the vehicles had in-
creased although the volume of new-car sales had been
declining. Woroniec explained that sales of used cars also
were being hampered because the lot was too small and
he was pressing Chrysler Corporation to purchase an ad-
jacent parcel of land in order to enlarge the used-car lot.
With respect to the Union's proposals Wornoniec in-
formed Hunsinger that he was willing to expand the
health and welfare plan to cover the employees' families
as well as themselves. Woroniec, however, advised Hun-
singer that his wife, who controlled CAW Agency, Inc.,
might give up the business if it could not generate a rea-
sonable profit. Woroniec and Hunsinger decided that the
Company should seek to eliminate LAH commissions
from its collective-bargaining agreement because the
CAW Agency did not wish to pay such commissions and
secondly because the payment of such commissions by
the Company would be illegal.
The discussion below of what transpired at the bar-
gaining sessions does not purport to be a complete sum-
mary of the evidence in regard thereto but is limited to
so much thereof as I believe will permit the reader to un-
derstand the factual basis for my findings.
June 20 meeting: Prior to this meeting, according to
Petroff, he had made a telephone request to Hunsinger
"to have with him a list of all the bargaining unit em-
ployees . . . their date of hire, their classifications, the
rate of pay and last year's earning." The request was re-
newed at this meeting. Hunsinger promised to furnish the
information at the next session. The parties then dis-
cussed each of the proposals that the Union had submit-
ted to the Company with its April 25 letter and tentative
agreement on a number of items was reached. Among
these were: procedure for union-dues checkoff, issuance
of weekly payroll draw checks by noon on the day that
they are due, an increase in the number of persons who
are authorized to appraise used cars, the settlement of a
grievance, and the procedure for inspection and repair of
used cars prior to sale.
June 27 meeting: At this meeting the Company gave
the Union a list showing the name of each employee in
the unit together with his social security number, his
date of hire, and his gross earnings. Petroff complained
that the list was incomplete because it did not show the
salesmen's LAH commissions. These commissions are
paid by the insurance carrier, CAW Agency, Inc.,
which, although independent of Respondent, is wholly
owned by Alfred Woroniec's wife. The Company at this
meeting submitted its counterproposals. They included a
substantial improvement in the employees' health and
welfare benefits and a revision of the employees' com-
mission pay plan which, among other things, eliminated
LAH commissions and substituted a flat $15 per deal in
lieu of finance and LAH commissions. Petroff pointed
out that under the Company's pay proposal the salesmen
would suffer a reduction in their commissions and bo-
nuses. There followed considerable discussion of the
Company's counterproposals including whether under
Michigan statute it was unlawful for the Company to
contract for the payment of LAH commissions to sales-
men. Before the meeting closed, Petroff informed the
company representatives that the Union was going to
serve it with a 30-day strike notice. Such notice was
mailed by the Union the next day.
July 7 meeting: On July 6, the day before this meeting,
Petroff met with Hart and Lewis who gave him the
LAH earnings of the salesmen which were obtained
from the W-2 forms they had received from the CAW
Agency, Inc. At the meeting, Petroff informed the com-
pany representatives that the Union rejected the offer it
had made at the previous session. Petroff advised that he
had obtained the LAH earnings of the salesmen so that
"we could make an intelligent analysis on our own." Pe-
troff indicated that elimination of LAH commissions
would substantially reduce the salesmen's earnings and
that "we want compensation in the new contract equal
to and if possible better than we had in the existing con-
tract." There was further discussion of finance and LAH
commissions. Hunsinger again informed the union repre-
sentatives that the direct payment of LAH commissions
to salesmen was unlawful and gave them the citation of
the applicable Michigan statute. Petroff advised that he
would ask the Union's attorney to interpret the statute
for him. Hunsinger also informed the union representa-
tives that the CAW Agency, Inc., was not making
money and if that situation continued it would go out of
business.
July 20 meeting: Petroff informed the company repre-
sentatives that the Union's attorney believes that Michi-
gan law does not absolutely prohibit payment of LAH
commissions to salesmen and that there is a way around
the law which can be reached by expanding the custom-
er's LAH contract to spell out the commission arrange-
ment. Hunsinger complained that the Union's contract
proposals were costly. There was discussion of the Com-
pany's used-car operations, the Company asserting that
its profits were insufficient and Petroff objecting that if
the used-car operation was doing poorly it was because
of bad management. Hunsinger informed Petroff that the
Company would be willing to improve its pay proposal
with respect to the sale of new cars in order to compen-
sate for the loss of LAH commissions but that it was
"very sticky on the used car pay plan because it had
been way over priced."
July 27 meeting: The Company indicated that it was
flexible regarding commissions for new-car sales and pro-
posed an increase to $15 per vehicle, instead of $12.50
per vehicle, for all units sold in excess of 20 per month
by each salesman. Petroff contended that this proposal
had little value because salesmen seldom sell more than
20 units per month. There was further discussion con-
cerning LAH commissions and the Company furnished
the Union with figures indicating the gross amount of
LAH commissions earned during a 12-month period, the
average amount earned by the salesmen, and the average
amount per deal. Petroff pointed out that, using the
Company's figures under its pay proposal, the salesmen
would lose about $6.14 per sale. Petroff acknowledged
that the Company's proposed improvements to its health
and welfare plan amounted to an increase of $57 per
882
NORTHWESTERN DODGE, INC.
month per individual. Before the meeting closed, accord-
ing to Petroff, "we again asked for a complete break-
down on the totals, number of units per man, the gross
deal per man, and over a period of a year, and using the
same period all the time, not shifting it all around from
one period to another." Woroniec promised to furnish
the Union with the information within the next few days
saying, "I want to get this over with."
October 10 meeting: At this meeting Hunsinger pro-
vided the Union with certain information orally. The tes-
timony of Hunsinger and Petroff differ as to whether the
Union was given the figures for individual performance
as well as total figures. Hunsinger testified that orally he
informed the Union for the calendar year 1977: what was
the average amount paid to each sales person per deal on
account of finance commissions and the average for all
salesmen; the average LAH commissions paid each sales-
man per unit sold and the overall average; the total
number of units sold by each salesman and the total
number of units sold in the aggregate; the total LAH
commissions paid each salesman and the total paid all
salesmen; and the aggregate commissions per salesman
plus aggregate commissions paid all salesmen. I credit
Hunsinger in this regard although Petroff denied that the
Company broke down its various total figures to show
the figures for the individual salesmen. During this meet-
ing the Union submitted a revised economic proposal. It
offered to continue the existing pay plan, with the fol-
lowing improvements: additional health and welfare
benefits to include optical and dental insurance, full hos-
pitalization for the entire family, and an increase in the
sick and accident benefits to $150 per week; a minimum
commission of $50 per sale; and improved vacation bene-
fits. The Company rejected this proposal. According to
Petroff, "Mr. Woroniec ... made statements to the
effect that the [union was] ignoring the company's previ-
ous statements, that he recognizes the union's reluctance
to negotiate a reduction in pay, but, he said, the compa-
ny is thinking of some bonus plan .... for the sales-
men. They can put up $10 per deal in a pot and the com-
pany will match [it with an] equal amount." The Union
then made another proposal to the effect that the current
pay plan should be modified to include $16 per sale as a
bonus, which would be kept in an interest-bearing
escrow account and which would be matched by the
salesmen, a minimum commission of $45 per sale, accept-
ance of the Company's improved health and welfare plan
proposal, and a modification of the Union's vacation pro-
posal.
October 16 meeting: At this meeting there was consid-
erable discussion of the various unresolved issues. The
Company rejected the last proposal made by the Union.
The Union presented the Company with further propos-
als which in part were accepted and in part were reject-
ed. Before the meeting concluded the Company made
another proposal to the Union regarding the pay plan
which, according to Petroff, "Hunsinger said [was] the
company's final offer." Petroff advised that "I would
present the company's final offer to our membership and
see what their thoughts are."
November 27 meeting: The pay proposal which the
Company had made at the previous meeting was consid-
ered and rejected by the Union's membership at a meet-
ing held on November 14. At the November 27 bargain-
ing session, the Union informed the Company of the re-
jection. There was further discussion of the points of dif-
ference between the parties. Before the meeting closed,
Hunsinger, after asking each member of the Union's ne-
gotiating committee whether the Union was willing to
make any change from its last offer and after being in-
formed by each that the Union was unwilling to make
any further concessions, advised the Union's representa-
tives that the Company was going to implement its last
pay proposal.
B. Surface Bargaining
The complaint alleges that in violations of Section
8(a)(1) and (5) "[s]ince on or about June 27, 1978, and
continuing to date, Respondent has engaged in surface
bargaining and with a fixed intent not to reach agree-
ment with Charging Party Union." There were eight ne-
gotiating sessions during which each of the parties made
proposals and counterproposals. The Company offered a
substantial increase in health and welfare benefits and
tentative agreement was reached as to other subjects. All
issues between the parties except for the commissions
payments appeared to be resolvable. Thus, Petroff testi-
fied that, at the October 16 meeting, "I said to Mr. Hun-
singer 'I think we are [close to an agreement].' If you
want to be realistic the big block [to an agreement is]
LAHA." The significant point of difference was that the
Union wanted an increase in the salesmen's commissions
whereas the Company wanted to restructure its pay plan
in a manner that would result in a reduction in the com-
missions earned by the salesmen. In addition, the Compa-
ny proposed to eliminate LAH commissions for the
stated reasons that it was a violation of Michigan law for
the Company to guarantee such payments and that the
CAW Agency, Inc., was unwilling to continue the LAH
commissions arrangement. The Company, however, of-
fered a bonus in lieu of the LAH commissions and
during the negotiations increased its initial bonus offer.
The Union's position throughout the negotiations was
that the Company's restructured commissions plan, even
with the improvements proposed during the negotiations,
would result in a loss of earnings for the salesmen and,
therefore, was unacceptable. The Company's position
was that to guarantee successful operations it was neces-
sary to restructure the commissions arrangement to en-
courage the salesmen to sell more vehicles, which, if ac-
complished, would ultimately increase employees' earn-
ings. It is on this point that the negotiations foundered.
The Union did not object to the elimination of the LAH
commissions or any other change proposed by the Com-
pany so long as the overall package offered by the Com-
pany would not constitute a reduction in the commission
earnings of the salesmen. The Company, on the other
hand, was insistent that there be a restructure of the
commissions arrangements, including the elimination of
LAH, which would result in a reduction in earnings for
any salesman who was not able to increase his unit sales.
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's argument in support of his con-
tention that the Company had engaged in unlawful sur-
face bargaining is the following:
Respondent knew beforehand that its counter-
proposal on economics would be unacceptable to
the Charging Party Union. Hunsinger admitted as
much.
Respondent's economic counterproposal called
for reduction of salesmen's remuneration through a
diminution of commissions and bonuses on new and
used-car sales and the elimination and, later, the vir-
tual elimination of the substantial LAHA commis-
sions. During the course of the contract negotia-
tions, Petroff, using such data as Respondent fur-
nished, demonstrated ineluctably that Respondent's
counterproposal would effect a substantial reduction
in unit employees' total remuneration.
The Respondent, in the eight negotiation sessions,
never claimed an economic necessity for eliminating
LAHA and watering down the commission and
bonus plans. Respondent said no more than that the
Union's proposals were costly. Hunsinger's recount-
ing Woroniec's yearnings to buy the dealership,
during a Hunsinger-Woroniec conference cannot be
said to be a "supported claim of economic necessi-
ty" for the counterproposal.
The Act does not oblige the parties to make con-
cessions during the course of bargaining; however,
the Respondent's presentation of "predictably unac-
ceptable" economic proposals representing less than
the existing package, without a supported claim of
economic necessity, indicates a "predetermination
not to reach agreement." The Respondent engaged
in surface bargaining here. Sweeney & Co., Inc., 176
NLRB 208, 212, enfd. in pertinent part 437 F.2d
1127 (5th Cir. 1971); United Contractors Incorporated
JMCO Trucking Incorporated Joint Employers, 244
NLRB 72; Lawrence Textile Shrinking Co., Inc., 235
NLRB 1178; Borg-Warner Controls, 198 NLRB 726.
The General Counsel thus contends that an employer
is engaged in unlawful surface bargaining if it insists on
an economic proposal calling for a reduction in the em-
ployees' earnings absent "a supported claim of economic
necessity." This is not the law. Just as a union's insist-
ence that there be a wage increase even absent proof that
the employees' living costs have increased alone is not
evidence that the Union is bargaining in bad faith, so an
employer's insistence that there be a change in the pay
structure which will result in a loss of earnings alone is
not evidence of a failure to bargain in good faith even
absent proof that the employer's operation is losing
money. I find that General Counsel has not proved the
surface bargaining allegation of the complaint and I shall
recommend its dismissal.
C. Failure To Furnish Information
Paragraph 13(a) of the complaint alleges: "Respondent
unreasonably delayed in furnishing Charging Party
Union with information relative to the life accident and
health insurance sales earnings of the employees de-
scribed in paragraph 9, above."
Prior to the June 20 bargaining session, Petroff in a
telephone conversation requested Hunsinger "to have
with him a list of all the bargaining unit employees . . .
their date of hire, their classification, the rate of pay and
last year's earnings." At the June 27 meeting the Compa-
ny gave the Union a list showing the name of each em-
ployee in the unit together with his social security
number, his date of hire, and his gross earnings. The par-
ties discussed each employee's assignment and there is no
contention that the Company failed to provide the em-
ployees' classifications. However, Petroff complained
that the list was incomplete because it did not show the
salesmen's LAH commissions. As these commissions are
paid by the insurance agency and not by the Company
and as Petroff's initial request did not clearly indicate
that he also was asking for the LAH earnings, the failure
of the Company to provide those figures on June 27
cannot be construed as a deliberate withholding of re-
quested information. On July 6, the day before the next
scheduled bargaining session, the employee members of
the Union's negotiating committee, Hart and Lewis, gave
Petroff the LAH earnings of the salesmen which were
obtained from the W-2 forms they had received from the
insurance agency. At the July 7 meeting Petroff in-
formed the company representatives that he had the
LAH earnings and at no time thereafter did Petroff
renew his request for the LAH earnings.6
The General Counsel argues that "[d]espite Petroffs
several requests that Respondent furnish information to
the Charging Party Union as to salesmen's earnings in-
cluding LAHA commissions, Respondent never com-
plied therewith. The Union clearly had a statutory right
to such information, for each unit employee, and Re-
spondent's failure to comply with the request for such
detailed information violated Section 8(a)(5) of the Act."
This argument distorts the evidence. On June 27 the
Company furnished the Union with a list showing the
earnings of each salesman paid them directly by the
Company. Thus, the General Counsel is inaccurate in
stating that Respondent failed to comply with the
Union's request for the "salesmen's earnings." The re-
quest made by Petroff did not specify that he also
wanted the salesmen's LAH earnings. At the June 27
meeting for the first time Petroff specifically made that
request. At the next meeting, held on July 7, Petroff in-
formed the Company that he had obtained the salesmen's
LAH earnings and thereafter did not renew his request
for those figures. Thus, in effect, the request that the
Company furnish the LAH earnings was withdrawn.
The Act does not impose a duty on negotiating parties to
I credit Hunsinger's testimony that at the October 10 bargaining ses-
sion he orally informed the union representatives the amount of the LAH
commissions paid each salesman. Although, in his brief the General
Counsel argues that "[alt no time during any of the contract negotiation
sessions did Respondent give the Union the requested information on
LAHA commissions for individual employees," it is noted that the com-
plaint assumes that such information ultimately was furnished the Union
because the allegation is that "Respondent unreasonably delayed in fur-
nishing . .. information relative to the life accident and health insurance
sales earnings." (Emphasis supplied.)
884
NORTHWESTERN DODGE. INC.
engage in meaningless gestures. No purpose would be
served by Respondent giving the union figures which it
already had and no longer wanted. Thus, the complaint
amounts to no more than that the Company did not have
with it, ready to be produced, at the July 7 session the
LAH commissions of the salesmen. The alleged delay
was for the period between two consecutive bargaining
sessions, namely, from June 27 to July 7, which the Gen-
eral Counsel has not proved was unreasonably long. In-
consistent with the allegation of paragraph 13(a) of the
complaint, the General Counsel in his brief contends not
that such delay was unlawfully long, but rather that the
violation arises out of Respondent's failure to furnish the
information at all. As such contention is not within the
scope of the complaint and as I find that the Union infer-
entially withdrew its request for the LAH commissions, I
shall recommend that paragraph 13(a) of the complaint
be dismissed.
Paragraph 13(b) of the complaint alleges that: "Re-
spondent failed and refused, and continues to fail and
refuse to furnish Charging Party Union with information
it requested concerning the average profit per vehicle
sold by Respondent, which matter was brought into issue
by Respondent in negotiations." In his brief the General
Counsel argues: "At the July 27, 1978 contract negotia-
tion meeting Petroff asked Respondent for a breakdown,
by salesman, of the total number of units and the gross
profit per deal." The General Counsel further contends
that "the credible testimony is that such information,
though often promised, was never furnished." However,
contrary to the General Counsel, I find that on October
10 Hunsinger gave the union representatives the informa-
tion requested. ?7 Accordingly, I shall recommend that
paragraph 13(b) of the complaint be dismissed.
D. Delaying Negotiations
Paragraph 13(c) of the complaint alleges: "In or about
August and September 1978, Respondent failed and re-
fused to meet with Charging Party Union at reasonable
times for purposes of collective-bargaining negotiations."
General Counsel in his brief argues that "[i]n addition
to the above August and September 1978 telephone calls
by Petroff to Respondent's attorney and President (re-
questing information but not attempting to schedule a
bargaining session), Petroff also telephoned Cornfield on
September 15 and 28 for assistance in setting up a meet-
ing with Respondent. Finally, Cornfield set the date at
October 10, 1978." The testimony given by Petroff, re-
ferred to by the General Counsel, was that on August 9
he telephoned Hunsinger and requested certain informa-
tion; on August 15 he again telephoned Hunsinger for
the same purpose; on August 21 he once more called
Hunsinger but learned that Hunsinger was on vacation;
on August 30 he telephoned Woroniec and complained
to Woroniec that he had not received the information;
7 In his brief the General Counsel contends that "[iln the October 10.
1978 meeting the Respondent gave the Charging Party Union the total
number of units sold but did not break down the total by salesmen." This
argument is based on Petroff's denial of Hunsinger's testimony that the
units sold by each salesman was in fact given at the October 10 meeting.
However, I have credited Hunsinger's testimony in this regard, rather
than Petrofs denial.
on September II he again telephoned Woroniec to com-
plain about not receiving the information; and a short
time thereafter he once again telephoned Woroniec but
this time was informed that Woroniec was on vacation.
In none of these telephone calls, according to Petroff's
testimony, did he request a bargaining meeting. Petroff
further testified:
On September the fifteenth I finally called Mr.
Cornfield from the state mediation board and told
him what was happening and asked him to set up a
meeting.
I hadn't heard anything. And then on September
the 28th I called him again. His answer to me was
he can't pin these two guys down to a date.
Then finally Mr. Cornfield announced the date.
He said that he was setting a date up for October
10th. And that was when we had our next meeting.
The evidence thus is that following the July 27 meeting
the Union did not request another meeting until Septem-
ber 15. The request was directed not to the Respondent
but to the mediator. Other than the testimony by Petroff
that the mediator told him that "he can't pin these two
guys down to a date," there is no explanation as to why
a date for the meeting could not be set any earlier than
October 10. As there is no competent evidence that the
delay in scheduling the meeting was in any way the fault
of Respondent, I shall recommend that paragraph 13(c)
of the complaint be dismissed.
E. Unilateral Implementation of Respondent's Last
Offer
At the last of the eight bargaining meetings, on No-
vember 27, after polling the union delegation and being
advised by each member that the Union was unwilling to
make any further concessions, Hunsinger informed the
union representatives that the Company was going to im-
plement its last proposal. On November 30, the Compa-
ny at a meeting of its salesmen announced that it was
putting into effect the proposal it had made to the Union,
and distributed to each salesman a letter dated December
1, 1978, which states that it considers that the negotia-
tions had reached an impasse, that it was implementing
its final offer to the Union effective that day, and which
describes the terms of its proposal in detail.
Paragraph 14 of the complaint alleges: "On or about
December 1, 1978, Respondent, by its agent, Alfred
Woroniec, unilaterally implemented Respondent's final
economic contract proposals at a time when lawful im-
passe had not been reached in collective-bargaining ne-
gotiations with Charging Party Union." The General
Counsel' s entire argument in support of this allegation is
the following two short paragraphs:
Respondent's argument in its December 1, 1978, let-
ters to employees-G.C. Exhs. 5 and 8-was that
an impasse had been reached in the bargaining with
the Union and that the Respondent might properly
put into effect its last economic offer.
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the flaw in Respondent's argument is that
a valid bargaining impasse was not reached here;
accordingly, the unilateral changes spelled out in
the December 1, 1978 letter to employees constitute
a violation of the Act.
The General Counsel gives neither the facts nor the ap-
plicable principles of law, other than citing one case,
United Contractors Incorporated JMCO Trucking Incorpo-
rated, Joint Employers, 244 NLRB 72 (1979), to support
his contention that an impasse in negotiations had not
been reached.
From the outset of the negotiations the parties were at
odds regarding the salesmen's compensation. Before the
first meeting the parties in an exchange of letters an-
nounced their conflicting positions: The Union wanted
improvements in the commissions arrangements and the
Company wanted changes which would reduce commis-
sions. Although during the negotiations each side modi-
fied its initial position, the basic difference between them
continued. As Petroff testified: "We pointed out to the
company . . . that we want compensation in the new
contract equal to and if possible better than we had in
the existing contract.... And we pointed out as em-
phatically as we could that we cannot and will not work
for less compensation than we have right now." The
Company was equally adamant in its position that there
had to be a reduction in the salesmen's commissions ar-
rangement. After eight meetings, the parties had not
been able to resolve this conflict and at the last meeting
on November 27 each side indicated to the other that it
was not prepared to make any further concessions. Thus,
negotiations were deadlocked.
There have been varying attempts to define the term
"impasse." One court has stated that a genuine impasse
in negotiations exists only where the parties have ex-
hausted all avenues for reaching agreement and there is
"no realistic prospect that continuation of discussion ...
would . . . [be] fruitful." s The Board has said that "[a]
genuine impasse in negotiations is synonymous with a
deadlock: the parties have discussed a subject or subjects
in good faith, and, despite their best efforts to achieve
agreement . . . neither party is willing to move from its
respective position."9 In Charles D. Bonanno Linen Serv-
ice, Inc., 243 NLRB 1093 (1979), the Board further has
explicated the nature of the term, as follows:
An impasse is only a temporary "deadlock" or
"hiatus" in negotiations which in almost all cases is
eventually broken, either through a change of mind
or the application of economic force. Indeed, an im-
passe may be brought about intentionally by one or
both parties as a device to further, rather than destroy,
the bargaining process.... [I]mpasse permits the
employer to place into effect those wage [changes]
'N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d
135, 147 (2d Cir. 1978). Accord: N.L.R.B. v. Beck Engraving Co.. Inc.,
522 F.2d 475, 484, fn. 16 (3d Cir. 1975); American Federation of Television
and Radio Artists. AFL-CIO Kansas City Local [Taft Broadcasting Co.] v.
N.L.R.B., 395 F.2d 622, 628, fn. 17 (D.C. Cir. 1968).
' Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973), enforcement denied
500 F.2d 181 (5th Cir. 1974). Accord: Newspaper Drivers Handlers'
Local 372 [Detroit Newspaper Publishers Assn.] v. N.L.R.B., 404 F.2d 1159,
1160 (6th Cir. 1968), cert, denied 395 U.S. 923.
or benefits it has theretofore offered . ... [Empha-
sis supplied.]
More recently, in Excavation-Construction, Inc., 248
NLRB 649, 650 (1980), the Board has modified its defini-
tion of the term "impasse" to read:
A genuine impasse in negotiations exists when,
despite the parties' best efforts to achieve an agree-
ment, neither party is willing to move from its posi-
tion.4 Until the collective-bargaining process has
been exhausted, no impasse can occur.5 We find that
the collective-bargaining process had not been ex-
hausted here when Respondent instituted the Satur-
day makeup day.
'Dust- Tex Service. Inc.. 214 NLRB 398, 405 (1974).
Mechanical Contractors Association of Newburgh, 202 NLRB I,
3 (1973).
The Board now requires two conditions to exist in order
to meet its revised definition of the term "impasse."
First, that the negotiations be at a deadlock and, second,
that "the collective-bargaining process [be] exhausted." t'
The second test appears to qualify the Charles D. Bon-
anno Linen Service case. The Board has pointed out that
the Charles D. Bonanno Linen Service case stands for the
proposition that "impasse is merely one phase of the
normal bargaining cycle"" which appears to conflict
with the condition articulated in the Excavation-Construc-
tion case that "[u]ntil the collective-bargaining process
has been exhausted, no impasse can occur." In view of
this, it may be in order to inspect closely the Excavation-
Construction decision to ascertain how to apply its new
definition of "impasse" to the facts in the instant pro-
ceeding.
In Excavation Construction, the union, Local 639, was
concurrently engaged in collective-bargaining negotia-
tions with a multiemployer association referred to as
CATA and with the employer, Excavation-Construction,
Inc. The negotiators for both groups were essentially the
same persons and the CATA agreement was intended to
be the model for an agreement between the employer
and Local 639 or, as the Board stated, "the CATA
agreement was frequently treated as a point of reference
by Respondent and the Union in the course of their ne-
gotiations." Ultimately, one issue only stood in the way
of an agreement between the Employer and Local 639.
The Employer insisted that Saturdays should be a
makeup day for which employees would not automati-
cally get premium pay, whereas the Union was no less
resolute in its demand that all work performed on Satur-
days would be at premium rates as was required under
'° In Mechanical Contractors Association of Newburgh the Board found
that negotiations had not been completed so that the parties had not
reached a deadlock, unlike the situation in Excavation-Construction where
the parties had fully explored their single point of difference and were
unable to arrive at an agreement.
" Brief filed by the Board in March 1980 with the United States Court
of Appeals for the Ninth Circuit, in H & D. Inc. v. N.L.R.B., No. 79-7198
at p. 29. In Hi-Way Billboards, Inc.. supra, the Board stated that "a genu-
ine impasse is not the end of collective bargaining."
886
NORTHWESTERN DODGE, INC.
the terms of the parties' most recent collective-bargain-
ing agreement.
On May 19, 1978, CATA and the representatives of
Local 639 reached an agreement, subject to ratification
by the Union's membership, which provided that Satur-
days would be a makeup day. However, the Union's
membership rejected the proposed agreement only be-
cause of the provision for the Saturday makeup day. Ul-
timately, CATA abandoned its demand for a Saturday
makeup day and, after a union ratification meeting held
on June 21, an agreement was executed by CATA and
the Union on June 23, which was identical with the re-
jected agreement except that it provided for premium
pay for all time worked on Saturdays. Thereafter, on
July 6, the Employer sent a telegram advising Local 639
that, beginning on July 15, it did not intend to pay pre-
mium rates for Saturday work on its A-14 job and re-
quested the Union to call if it had any questions.
The Employer and Local 639 next met on July 11.
The Employer stated that it would accept the CATA
agreement provided that the contract included Saturdays
as a makeup day for one job only, its A-14 project. The
Union's president and chief negotiator, Daniel George,
responded that "there is no way I can go to F & C em-
ployees and say you guys got a make up day when the
entire industry has rejected a make up day . . . [H]ow
can 1, in good faith, sit here and negotiate something for
F & C that our people have already rejected . . . I'll
take it back to iny people but 1 can tell you right now,
they are not going to buy it." The Employer then in-
quired whether there were any corresponding conces-
sions it could give in exchange for the makeup day to
which Daniel George replied, "I couldn't think of any-
thing . . . that I thought our people would trade off the
make up day for."
On July 13 Daniel George sent a letter to the Employ-
er which, in pertinent part, stated:
However, the local union will conduct a referen-
dum of the employees of E & C with a request that
they strike F & C if the company implements its
unilateral change of the collective-bargaining agree-
ment, in violation of that agreement and company's
bargaining obligations.
The Employer replied by telegram on July 14 which, in
pertinent part, stated:
F-C is willing to sign the CATA agreement except
only that it wishes to work for straight time on Sat-
urday and Sunday at A-14 and nowhere else. The
union has indicated that it is not agreeable to fur-
ther negotiations on these issues. Hence, we are at
an impasse. Since we are at an impasse F-C reserves
its legal right to institute its last and final offer.
On the night of July 14, a union meeting was held at
which the Employer's proposal was rejected by a vote of
27-to-5. The next morning, Saturday, July 15, at least
three employees separately notified the Employer that
they would not work at straight time rates which was
tantamount to informing the Employer that its proposal
had been rejected at the union meeting the night before.
The Board in its Decision points out that the Employ-
er "clearly had a fixed determination to cease giving pre-
mium pay for Saturday work on the A-14 job when it
commenced work there on July 15, regardless of the
status of its negotiations with the Union." '2 There was
no contention in the Excavation-Construction case that
the Employer was engaged in surface bargaining or had
adopted an unlawful "take-it or leave-it" position. Thus,
the quoted sentence emphasizes that the Employer was
as firm in its negotiating position with regard to the Sat-
urday makeup day as was Local 639. The fact that the
Employer had "a fixed determination" to treat Saturdays
as a makeup day in the circumstances of the case was not
unlawful: the complaint did not make any such allegation
and there was no such finding by the Board. After the
union's membership had rejected the first CATA agree-
ment, which included a Saturday makeup day, and
CATA capitulated by signing a contract with Local 639
which did not have the Saturday makeup day provision,
the realities were-which the Employer understood as
the same persons represented it and CATA in the negoti-
ations with Local 639-that it was improbable that Local
639 would give it a Saturday makeup day. On July 6, the
Employer sent Local 639 a telegram advising that begin-
ning July 15 it would not pay premium rates for Satur-
day work at the A-14 job. This served to advise the
Union that the Employer was steadfast in its resolve to
gain Saturdays as a makeup day despite CATA's capitu-
lation.
When the parties next met on July I 11, it was clear that
the negotiations were deadlocked. Daniel George in-
formed the Employer that there was nothing he could
think of that the Union would accept in exchange for
giving up premium pay for Saturday work. George ad-
vised the Employer that although he would take its pro-
posal "back to my people" that "I can tell you right
now, they are not going to buy it." The Board points out
that "George did not reject the Saturday makeup pro-
posal at that time. Rather, while stressing the improbabil-
ity of employee ratification of such a provision, George
agreed to take the provision back to the employees for a
vote." There is no evidence in the case that the Union at
any time formally notified the Employer that its mem-
bership had rejected the Employer's proposal. The
Board further points out that "[s]ignificantly, this vote
[by the union's membership] had not yet been taken
when Respondent announced in its July 14 telegram that
the parties were at an impasse." I am uncertain as to
what the Board considered significant with respect to the
Employer's July 14 telegram. Does the Board mean that
the declaration by a party to negotiations that they are at
an impasse prevents the impasse from occurring if there
is a possibility, although remote and improbable, that the
other party will capitulate? As of the time the Employer
sent its July 14 telegram, the parties were apart only as
to the Saturday makeup day. At the July 11 negotiating
12 Based on what it knew occurred during the CATA negotiations.
when the Employer sent its July 6 telegram to the Union, it had excellent
reasons to believe that th Union's bargaining position in regard to the
Saturday makeup day was inflexible, which belief was confirmed at the
July II bargaining session.
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
session, Local 639 had advised that there was no room
for bargaining about the subject and that there was noth-
ing it would accept in exchange for a Saturday makeup
day. Thus, so far as the negotiations were concerned, the
parties were at a deadlock; there was nothing either
party was prepared to offer in order to reach an agree-
ment. The union membership vote was only a ritualistic
formality because on July 11 George, the Union's presi-
dent and chief negotiator, informed the Employer, "I can
tell you right now, they are not going to buy it."
The Board concludes its discussion as follows:
Respondent does not claim that it had been ad-
vised by the Union of the employees' rejection of
the proposal at the time that it implemented the
change. Instead, Respondent merely assumed that
the employee vote promised by George would be
an empty gesture and that it would have no impact
on the Union's negotiating posture. Such assump-
tions are not an adequate substitute for collective
bargaining. In view of the foregoing, we conclude
that no impasse existed when Respondent unilateral-
ly implemented the Saturday makeup day at the A-
14 jobsite ...
The decision is not clear as to what the "claim" re-
ferred to signifies. There was no evidence in the case
that Local 639 at any time advised the Employer that its
last proposal had been rejected by the Union's member-
ship. Does the Board mean that in circumstances such as
occurred in the Excavation-Construction case there cannot
be an impasse unless the union formally advises the em-
ployer of the outcome of the union meeting where the
Employer's last proposal was rejected and by refusing to
give such advice it can prevent an impasse? On the
morning of Saturday, July 15, when the Employer imple-
mented its Saturday makeup-day proposal, it had a rea-
sonable basis for believing that its proposal had been re-
jected at the Union's July 14 meeting because three em-
ployees refused to work at straight time rates. (At the
hearing in the Excavation-Construction case none of the
witnesses was questioned as to when and from whom the
employer first learned that its proposal had been rejected
at the union membership meeting on July 14 because the
participants in the hearing did not then know that such
circumstance might be a crucial fact in the case.)
As of the morning of Saturday, July 15, when the Em-
ployer implemented its last proposal, as well as on July
11, when the last previous bargaining meeting was con-
cluded, there was nothing left for discussion between the
parties. The Employer had advised Local 639 that it in-
tended to treat Saturdays as a makeup day and the union
representatives had advised that it would conduct a ref-
erendum of its membership as to whether to accept the
proposal or to reject the proposal and to strike if the
Employer should implement its proposal. The member-
ship vote was not for the purpose of giving new instruc-
tions to the Union's negotiators or of otherwise relaxing
its inflexible position regarding the Saturday makeup
day. This leaves somewhat uncertain what the Board
means by the sentences: "Instead, Respondent merely as-
sumed that the employee vote promised by George
would be an empty gesture and that it would have no
impact on the Union's negotiating posture. Such assump-
tions are not an adequate substitute for collective bar-
gaining."
It is not necessary for me to resolve the questions
posed by the Excavation-Construction case. Here, as in
Excavation-Construction, the negotiating parties were at a
deadlock when the employer implemented its final pro-
posal. The second test of impasse which the employer
did not meet in the Excavation-Construction case, I be-
lieve, is met here; namely, "[u]ntil the collective-bargain-
ing process has been exhausted, no impasse can occur."
In Excavation-Construction there was no bargaining meet-
ing between the time of the union membership meeting
rejecting the employer's last proposal and the employer's
implementation thereof and further the employer had in-
formed Local 639 in advance of the union membership
meeting that it intended to implement its Saturday
makeup-day proposal. Here, on October 16 the Company
made its proposal to the Union. The Union held a mem-
bership meeting on November 14 whereat the proposal
was rejected. When the parties met again on November
27, the Union formally notified the Company of the re-
jection, which was not done in the Excavation-Construc-
tion case, and the first time the Company announced that
it intended to implement its proposal was at the end of
that meeting. I am of the opinion that the differences be-
tween the instant case and the Excavation-Construction
case are sufficient to satisfy the Board's second criterion;
namely, "until the collective-bargaining process has been
exhausted, no impasse can occur." Accordingly, I find
that, as of December 1, 1978, negotiations were at an im-
passe and that it was lawful for the Respondent to imple-
ment on December 1, 1978, its last proposal made to the
Union. Accordingly, I shall dismiss paragraph 14 of the
complaint.
F. Unilateral Change in Vacation Plan
In the evening of November 30, Bob Hart was in-
formed that he was laid off. As January 6, 1979, was the
anniversary date of his employment, on January 8 Hart
telephoned Used-Car Manager Kennedy and inquired
whether he would be given his vacation pay. Kennedy
answered that he did not know and Hart asked Kennedy
to obtain the answer from Woroniec. Later that day
Hart again telephoned Kennedy who informed Hart that
"Al [Woroniec] says no way." Woroniec testified that
the policy of the Company is to give vacation pay only
to employees who are actually at work on their anniver-
sary date. However, Woroniec was unable to recall any
instance when this policy was applied nor did he pro-
duce any instrument in writing reflecting the policy.
Paragraph 17 of the complaint alleges: "On or about
January 10, 1979, Respondent, by its agent, Alfred Wor-
oniec, unilaterally altered the vacation pay plan set forth
in the expired contract." The vacation pay provision in
the contract reads as follows:
Salesmen with one (I) year seniority will be entitled
to one (I) week's vacation at a rate of 2% of their
previous years gross earnings based on their hire an-
niversary date.
88
NORTHWESTERN DODGE, INC.
Salesmen with two (2) years or more seniority will
be entitled to two (2) weeks vacation at a rate of
4% of their previous years gross earnings based on
their hire anniversary date.
On these facts I agree with the General Counsel that Re-
spondent unilaterally changed its vacation pay plan by
imposing a condition not contained in the applicable col-
lective-bargaining agreement and thereby violated Sec-
tion 8(a)(1) and (5).
G. Refusal To Accept Grievances
On December 1, 1978, Union Shop Steward Howard
Lewis attempted to present grievances protesting the lay-
offs of Bob Hart and Phil Manis to Used-Car Manager
Kennedy in the presence of Alfred Woroniec. The latter
instructed Kennedy not to accept the grievances saying,
"I don't consider . . . we're working under our union
contract anymore."
Similarly, Hart testified that on January 10, 1979, he
attempted to present a grievance to Al Woroniec direct-
ly regarding the denial of his vacation pay. According to
Hart, he stated to Woroniec that January 6 was his anni-
versary date and that "I called Ed [Kennedy] the other
day and he tells me that you don't want to give me my
vacation pay." Woroniec responded, "[Y]ou're no longer
an employee here. Your employment is terminated."
Hart then retorted, "[H]ere's a grievance for you. And
he [Woroniec] just looked at it. He says 'we don't have a
union here.' I says are you telling me you don't recog-
nize the union? He says 'that's right."'
Woroniec acknowledged that he refused to authorize
the acceptance of the grievances.
Paragraph 15 of the complaint alleges: "In or about
early December 1978, and again on or about January 10,
1979, Respondent, through its agents, Alfred Woroniec
and Edward Kennedy, refused to bargain with repre-
sentatives of Charging Party Union with respect to
grievances arising under the expired contract." The Gen-
eral Counsel argues that "[t]he duty to accept those
grievances survived the expiration of the contract. Re-
spondent's failure to accept the postcontract grievances
violated Section 8(a)(5) of the Act." American Sink Top
& Cabinet Co.. Inc., 242 NLRB 408 (1979); Bethlehem
Steel Company (Shipbuilding Division), 136 NLRB 1500
(1962). Although the Union did not attempt to carry the
grievances to arbitration, I agree with the General Coun-
sel that by refusing to accept the grievances Respondent
has flouted its statutory collective-bargaining obligation
and thereby has violated Section 8(a)(1) and (5) of the
Act.
H. The Layoffs
Paragraph I 11 of the complaint alleges that on Novem-
ber 30 Respondent laid off Bob Hart and Phil Manis "be-
cause of, and in retaliation for, Respondent employees'
support for and activities on behalf of the Charging
Party Union."
Hart and Manis were employed as used-car salesmen.
Hart had worked continuously for the Company from
January 6, 1973, until his layoff on November 30, 1978,
and Manis had worked continuously for the Company
from October 1976 until his layoff on November 30.
There were only four used-car salesmen at the time of
the layoffs; the least senior was Manis and next was
Hart. The theory of the General Counsel is that Re-
spondent wished to retaliate against Hart for his aggres-
sive espousal of the Union's cause at the negotiating
meetings, and in order to develop the fiction that the lay-
offs were nondiscriminatory it also laid off Manis so that
it would appear that the layoffs were made in inverse
order of seniority. Thus, in its brief, Respondent argues
that "Vartkes Haroutunian and Philip Maniscalchi were
the two least senior of the four used car department
salespersons and had the poorest sales performance
during the six month period prior to layoff and, there-
fore, were selected to be laid off."
The General Counsel adduced testimony regarding
several incidents to demonstrate Respondent's animosity
towards Hart and the Union. Thus, Hart testified that at
the June 20 meeting Woroniec said to Petroff, "Mr. Pe-
troff, I object to Mr. Hart being in this room, he is not
here representing the salesmen, he is here representing
himself." Petroff responded that Hart was a member of
the bargaining committee and was asked to be present at
the bargaining session. There was some further exchange
of words and the matter was dropped. Hart was permit-
ted to remain at the bargaining sessions. It is noted that
Howard Lewis, a new-car salesman, was the principal
union steward and also a member of the negotiating
committee and that article VIII, section 4, of the parties
most recent collective-bargaining agreement provides:
The Union in contract negotiations may be repre-
sented by employees in the bargaining unit, not to
exceed one (1). Such employees shall be selected in
any manner the Union desires. The Union shall des-
ignate said employee to the Company.
Paul J. Lampinen testified that at a sales meeting on
November 14 Woroniec said that "he was tired of this
-- union . . . and disrupting our sales, and he's tired
of this -- union bullshit and he would like to tackle it
on the showroom floor. And he further stated that it was
causing us not to sell cars." 3
Lastly, Hart testified that at the November 27 bargain-
ing session while Hunsinger was discussing with Howard
Lewis whether LAHA was
. . . a break even or a loser . . . I looked over at
[Hunsinger] and I said "What did you say?"
And he turned around, he says "the LAHA is a
break even thing."
And I kind of laughed and said "you gotta be
kiddin'," and about that time he got up and he says,
"Hey, Hart, I don't want to listen to any more of
your shit." And he slammed his books and started
putting them into his briefcase.
And I said, "Hey, I've been listening to your
bullshit since day one." And they started. Mr. Hun-
singer started leaving the room.
L Lampinen's testimony was substantially corroborated by the testimo-
ny of Howard Lewis
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And I said how about Van Dyke Dodge and
Galliano? I says he took the LAHA away from the
salesmen, he was able to buy a used car lot. An
extra lot across the street from his dealership, plus
the Belleville Dodge. I said is that what kind of a
loser it is?
And by that time they were by the door, leav-
ing. 14
In its brief Respondent argues that it "presented un-
contradicted evidence that the volume of sales for the
used car department . . . was down about fifty percent
(50%) in November of 1978... . whereas, Respondent's
used car department had been averaging 36.6 vehicles
sold during the first ten months of 1978, November sales
were 22 vehicles .... Coupled with this reduction in
used car sales was the inadequate percentage of dealer-
ship retention of profits for the used car department
.... Respondent's used car commissions were 42.7% of
the gross income of the department, whereas other prof-
itable auto dealers' used car commissions averaged about
27 percent." Despite this argument and despite the fact
that Respondent has not replaced Hart or Manis since
their layoffs, nevertheless, the facts here are sufficiently
close to those in Eastern Engineering & Elevator Co., Inc.,
247 NLRB 43 (1980), that I am constrained to follow the
instructions of that exhaustively reasoned decision and
find that the layoffs of Hart and Manis violated Section
8(a)(1) and (3) of the Act.
I. Change of Hart's Layoff to Discharge
Paragraph 16 of the complaint alleges that in violation
of Section 8(a)(1) and (5) "On or about January 10, 1979,
Respondent, through its agent, Alfred Woroniec, unilat-
erally, without prior notice to and bargaining with the
Charging Party Union, severed the employment of
Charging Party Haroutunian by converting him from lay
off to termination status."
Hart testified that on January 10, 1979, when he at-
tempted to present to Woroniec a grievance concerning
the failure of the Company to give him vacation pay,
Woroniec asserted, "You're no longer an employee here.
Your employment is terminated." Woroniec denied that
he informed Hart that the latter was terminated and fur-
ther testified that Hart has not been discharged. I credit
Woroniec in this respect and, accordingly, shall recom-
mend that paragraph 16 of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section 1II,
above, occuring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
' I do not credit the testimony of Ronald McGee, contradicted by
Hunsinger, that on November 27 at a meeting he had with Hunsinger and
Woroniec they "discussed the fact that I should always be on the lookout
and try and get some new sales personnel in the dealership to replace the
ones who were there so that there'd be no further union activities of the
sort that had gone on."
putes burdening and obstructing commerce and the free
flow of commerce.
V. RMII)N
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully modified its
vacation pay policy, I shall recommend that Respondent
reimburse its employees for any vacation pay they may
have lost by reason of such modification, together with
interest thereon to be computed in accordance with Flor-
ida Steel Corporation, 231 NLRB 651 (1977).
Having also found that Respondent unlawfully laid off
its employees Vartkes Haroutunian and Philip Maniscal-
chi on November 30, 1978, I shall recommend that Re-
spondent offer each of them immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority and other rights and privileges pre-
viously enjoyed, discharging if necessary and replace-
ments hired for them. I shall also recommend that Re-
spondent make each of them whole for any loss of earn-
ings and other benefits he suffered by reason of Respond-
ent's unlawful conduct. Their loss of earnings shall be
computed as prescribed in F W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be computed
in accordance with Florida Steel Corporation, 231 NLRB
651 (1971).'6
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the follow-
ing:
CONCLUSIONS OF LAW
1. By laying off on November 30, 1978, and refusing
to recall to work Vartkes Haroutunian and Philip Manis-
calchi because of their union and protected concerted ac-
tivities, Respondent has violated Section 8(a)(l) and (3)
of the Act.
2. By unilaterally modifying its vacation pay plan and
by refusing to accept and process grievances, Respond-
ent has violated Section 8(a)(l) and (5) of the Act.
3. Respondent's violations of Section 8(a)(1), (3), and
(5) of the Act are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
4. Except as specifically found herein, Respondent has
not otherwise engaged in the violations of the Act al-
leged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in these proceedings, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
,s See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
" See fn. 15, supro.
890
NORTHWESTERN DODGE, INC.
ORDER 17
The Respondent, Northwestern Dodge, Inc., Royal
Oak, Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Laying off, failing to recall, or otherwise discrimi-
nating against its employees because of their union or
other protected concerted activities.
(b) Unilaterally, without giving prior notice to and en-
gaging in collective bargaining with the designated col-
lective-bargaining representative of its employees, modi-
fying its vacation pay plan or otherwise changing any
term or condition of employment of its employees who
are represented by such labor organization.
(c) Refusing to bargain collectively with the repre-
sentative of its employees by refusing to accept or bar-
gain about employee grievances with such representa-
tive.
(d) 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 designed to ef-
fectuate the purposes of the Act:
(a) Offer to Vartkes Haroutunian and Philip Maniscal-
chi immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and to any other rights and privileges previously enjoyed
by them, discharging if necessary any replacements hired
since their layoffs, and make each of them whole for any
'7 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.
loss of earnings or other benefits he suffered as a result
of the discrimination against him in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Make whole its employees for any losses they suf-
fered, if any, by reason of Respondent's unlawful modifi-
cation of its vacation pay plan in the manner set forth in
the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Post at its place of business in Royal Oak, Michi-
gan, copies of the attached notice marked "Appendix."s
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent's 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.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that, except for the violations
herein specifically found, the allegations of the complaint
alleging violations of the National Labor Relations Act
be dismissed.
"' In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
891