Holmes Tuttle Broadway Ford, Inc.

HOLMES TUTTLE BROADWAY FORD 73 Holmes Tuttle Broadway Ford, Inc. and Teamsters, Chauffeurs, Warehousemen & Helpers of America Local #310. Case 28-CA-1914 October 26, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS faith doubt of the Union's majority, and the making of contract proposals designed to discourage accept- ance by the Union, not as per se violations of Section 8(a)(5), but as evidence in context that Respondent did not intend to reach agreement with the Union and thus bargained in bad faith in violation of Section 8(a)(5).3 REMEDY On May 14, 1970, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereaft- er, Respondent filed exceptions to the Decision and a brief in support thereof, and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein.I The Trial Examiner found that Respondent violated Section 8(a) (5) on and after January 12, 1969, by: engaging in bargaining in bad faith with no intent to reach agreement; insisting on an agreement limited in duration to an unreasonably short period of time; 2 filing a representation petition well before the expiration of the certification year without entertain- ing a good-faith doubt of the Union's majority; failing to provide its negotiators with sufficient authority to conclude an agreement with the Union; and making proposals during the course of negotiations designed to discourage acceptance by the Union. It is not clear whether the Trial Examiner intended that each of these items after the first were supportive of the finding of overall bad-faith bargaining, or were separate, independent violations of Section 8(a)(5). In order to clarify the matter, we rely on the insistence on a contract which would expire with the certification year, the filing of the representation petition during the certification year without entertaining a good- We have adopted the findings and conclusions of the Trial Examiner concerning Respondent's refusal to bargain in good faith with the Union during the certification year, in violation of Section 8(a)(5) of the Act. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See: Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). 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 Trial Examiner, as modified herein, and hereby orders that Respondent, Holmes Tuttle Broadway Ford, Inc., Tucson, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Add the following sentence to paragraph 2(a): Regard the Union upon resumption of bargaining and for 1 year thereafter as if the initial year of the Union's certification had not expired. 1 In adopting the Trial Examiner's Decision, the Board does not also adopt his discussion of the applicability of the General Electric case, infra, to the fact situation presented in this case. 2 The Board agrees with the Trial Examiner in rejecting Respondent's defense that it had a good-faith doubt of the Union's majority as a reason for demanding that any collective-bargaining contract signed terminate with the certification year. However, the Board relies not only on the reason assigned by the Trial Examiner for rejecting this defense, but on the further ground that as of the time of the strike there were approximately 70 employees in the appropriate unit and that Respondent had a basis for assuming, on the basis of General Operations Manager Parker's testimony, that at most 29 employees, or less than a majority, no longer wished to be represented by the Union. 3 We find it unnecessary to adopt the Trial Examiner's findings that Respondent failed to provide its negotiators with sufficient authority to conclude an agreement with the Union. 186 NLRB No. 14 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Tuscon, Arizona, on November 18, 19, and 20, 1969, on the complaint of General Counsel, as amended, and the answer of Holmes Tuttle Broadway Ford, Inc., herein called the Respondent.' The complaint alleges violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Arizona corporation with its office and place of business at Tucson, Arizona, where it is engaged in the retail sale, repair, service, and maintenance of new and used automobiles and automotive equipment. During the year immediately preceding the issuance of the complaint, a representative period, Respondent sold and distributed goods and services of a gross value in excess of $500,000, and purchased and received goods and materials valued in excess of $50,000 directly from locations in states of the United States other than the State of Arizona. The complaint alleges, the answer does not deny, and I find Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen & Helpers of America Local # 310, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent: (a) engaged in unfair labor practices in contravention of the provisions of Section 8(a)(5) and (1) of the Act by failing and refusing to bargain collectively in good faith with the Union on and after January 12, 1969, and more particularly (1) by meeting with the Union and discussing mandatory subjects of bargaining in bad faith with no intent to reach a final and binding agreement, or (2) by insistence that any agreement reached be limited in duration to an unreason- ably short period of time, terminating simultaneously with 1 A charge herein was filed July 11, 1969 A complaint was issued on August 29, 1969, and amended at the outset of the hearing herein 2 At the outset of the hearing paragraphs 7 and 8 of the complaint were amended to correctly reflect the identity of this supervisor 3 At the conclusion of General Counsel's case, this allegation of an independent violation of Section 8(a)(1), together with the allegation of the termination of the certification year, or (3) by its action, without a good-faith doubt of the Union's majority status, and well before the termination of the certification year, in filing a petition to test the Union's majority on May 26, 1969, or (4) by engaging in bad-faith collective bargaining by repudiating agreements previously reached on specific items, or (5) by failing to provide its negotiators with sufficient authority to conclude an agreement, or (6) by advancement of proposals designed to discourage accept- ance by the Union, or (7) by, in bad faith, questioning the union negotiator's authority and insisting upon ratification of agreements reached by union membership, or (8) by engaging in surveillance for the purpose of undermining the Union's support; or (9) engaging in interference, restraint, or coercion, in derogation of the provisions of Section 8(a)(I) of the Act, by its supervisor, Townsend J. Parker,2 engaging in surveillance of a union meeting on April 21, 1969.3 Respondent denies that it failed or refused to bargain in good faith. B. Supervisory Personnel The complaint, as amended, alleges, the answer, as amended, admits, and I find that Townsend J. Parker, general operations manager, at all times material herein, was a supervisor within the meaning of Section 2(11) of the Act. C. Background The facts set forth under this subsection are undisputed. There has been no prior history of collective bargaining between the Respondent and the Union. An election, held on July 3, 1968, under the supervision of the Regional Director for Region 28, resulted in a vote of 45 for, 17 against, the Union and 2 challenged ballots. Thereafter, the Regional Director issued a certification of the Union, on July 12, 1968, as the exclusive representative, for the purposes of collective bargaining, of the employees in an appropriate unit described as follows: All employees of the Respondent's general service operations in Tucson, Arizona, exclusive of all other employees, office clerical, plant clerical, and shop clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act. On August 19, 1968, the Union delivered its initial contract proposal to Respondent's representative. Subse- quently, during the period between August 26, 1968, and May 22, 1969, 18 negotiating sessions, varying in length, also varying greatly in substance, were held on the following dates: August 26; September 11 and 24; October 4, 11, and 23; November 1, 8, 14, 21, and 29; December 13 and 20; January 6 and 30; April 3 and 30; and May 22. William McCollum, president of the local, was the principal spokesman for the Union.4 William A. Scanland, a member surveillance set forth as subparagraph (h), of paragraph 10, relative to the allegations of failure to bargain in good faith, were dismissed and will not be further considered herein 4 Others present, for the Union at vanous times, on or prior to January 6, were Charlie Knapp, business agent, and employees Tom Zwack and Bennie Fox Attorney Schneier attended only on May 22 George Rohrer, HOLMES TUTTLE BROADWAY FORD 75 of the bar of the State of Arizona, was the chief negotiator for the Respondent.5 During the period of negotiations, on December 4, 1968, a strike commenced. On December 24, 1968, the Union advised Respondent, by letter, of the unconditional offer of the employees, then on strike, to return to work and of their request for reemployment. The Union also filed an unfair labor practice charge, on December 24, 1968, alleging violation of Section 8(a)(5) and (1) of the Act, in Case 28-CA-1818. This charge was subsequently withdrawn. On May 22, 1969, Attorney Lerten, Respondent's spokesman, offered the Union a collective-bargaining agreement with a termination date, identical to the expiration of 1 year after certification, of July 12, 1969, a period of 7 weeks. President Drewer identified Holmes Tuttle as the principal stockholder of Respondent, owning more than 50 percent. On May 26, 1969, Respondent filed an RM petition, identified as Case 28-RM-224. On June 4, 1969, the Regional Director dismissed the petition as being untimely filed within the certification year.6 On July 15, 1969, Respondent filed an RM petition identified as Case 28-RM-228. On August 28, 1969, the Regional Director dismissed the petition by reason of the pendency of the within matter.? D. Bargaining Background Prior to January 12, 1969 It is undisputed that the Union submitted its initial proposal on August 19, 1968. This proposal contained approximately 23 numbered articles, with subsections, with the following headings: recognition; union shop and check- off; notification (notice to the Union of each hiring, discharge, and pay rates, etc.); leave of absence; seniority rights; health and welfare; pension; jury duty; sick leave; funeral leave; vacation; holidays; uniforms; discharge or suspension; examination and identification fees; meal international representative, attended only on November 21. 5 Others present, for the Respondent, were Harold Burk, executive secretary of Employers Council, Inc., and Townsend J. Parker. However, Burk did not attend the November 29 meeting, and Parker did not attend the August 26 meeting. Attorney Lerten and Robert Drewer, president of Respondent, attended the May 22 meeting. 6 Section 9(c)(3) of the Act. T Respondent's contention that it had a good-faith doubt of the Union's majority status is considered infra. 8 In the light of the entire record, I find it unnecessary to resolve a conflict in the assertion of McCollum that agreement was reached on the recognition clause at this first meeting, as compared to the assertion of Scanland that while there was no real argument about the basic recognition clause, the detail of the Respondent's second street address, or location which the Union desired inserted, was worked out at a subsequent meeting. 9 While the Union subsequently submitted a booklet which outlined the benefits of the insurance plan, it is undisputed that McCollum was never able to obtain or transmit copies of the trust agreements . McCollum's explanation was that he was advised "by the trustees" that there was no such thing. McCollum provided Scanland with the identity, and the addresses of the union and company trustees , so that Scanland could make his request directly to them. In the light of the evidence of the other events herein, McCollum's obvious inability to comply with this request is of no substantial consequence. 10 While it is undisputed that Arizona is a right-to-work state, the Union proposal contains, as an alternative, what is commonly known as an agency-shop clause . McCollum's assertion that Respondent would not periods; pay periods; general provisions; union stewards; visitation by union representatives; maintenance of stand- ards; wages; and duration of agreement. The first negotiating meeting, and all except 6 of the others, was held at the office of the Employers Council, which was Burk's office. The exceptions were: three of the November meetings were held at the union hall; the December 13 meeting was in a hospital where Burk was under treatment; a brief meeting on December 20 was at the office of Attorney Scanland; and the meeting of January 6 was at Burk's home. McCollum credibly related that the meeting of August 26 extended from approximately 2:30 p.m. to 6 p.m. during which the parties went over each article of the Union's proposals.8 It is undisputed that the Union's initial submission did not contain a provision covering grievance procedures or arbitration, or a provision setting forth the work week for individual employees. McCollum was uncertain if the first item was omitted intentionally or inadvertently, but asserted that omission of the latter was intentional and due to the Union's lack of information in that area. It is undisputed that there was a discussion of the Union's health and welfare fund and that Scanland requested the Union to provide copies of the health and welfare and pension trust agreements, which McCollum undertook to obtain .9 McCollum related that Scanland advised that Respondent would not accede to a checkoff clause or agree to a union-security provision.10 The parties met on September 11, 1968. The Union submitted a new complete proposal covering some 21 pages and including 24 articles.'1 While this meeting extended over a period of 2 to 2 1 /2 hours it does not appear that agreement was reached on any complete article. On September 24, Respondent's counter proposal, which had been submitted to the Union in the interim, was considered during a meeting which extended from 2:30 to 5 or 5:30 p.m.12 There is no evidence of agreement as to any of the proposals at this meeting. However, McCollum agree to an agency-shop provision is undisputed. 11 Notably the union-shop provisions were deleted. A work week provision was added as article XXIII. This proposal also did not contain a grievance or arbitration provision. 12 Respondent's proposal is set forth on some 34 pages, including 26 sections, together with a 2-page appendix A covering classifications and wage rates. Among the items not covered in the previous union submissions are sections headed: nondiscrimination providing, inter alia, for an employee's right to refrain from joining the Union; a management's rights clause, providing, inter alia, the right to hire, transfer, promote, demote, discipline, establish rules of conduct and rules and standards of operation and workmanship not in direct conflict herewith, discharge for cause, increase or decrease the work force, make work assignments, or subcontract work "are solely functions of the employer" not subject to the grievance and arbitration provisions; employee interchangeability; probationary periods and temporary employees; seniority based on length of service, "if, in the judgment of the employer, skill and ability are equal"; seniority (as defined) to apply on layoff and recall; employee obligations, to perform all duties assigned, whether the assignment involves regularly scheduled time or overtime, including Sundays and holidays; superannuat- ed employees, providing for payment of less than the minimum rate; discipline and discharge, providing circumstances under which discharges may be effectuated, (including refusals to cross a picket line) with review under the grievance and arbitration procedures limited to the question of the existence of the alleged conduct; a grievance and arbitration procedure, including provision for a polygraph test of any witness; unsatisfactory work-employees financially responsible "and shall reimburse the Employer for any expense, including labor and parts expense involved in (Continued) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acknowledged there were portions of articles on which agreement was reached. McCollum's assertion that the company's wage proposal was the existing minimum rate stands undisputed. Scanland asserted that, on September 24, Knapp inquired as to the nature of Scanland's authority. Scanland asserted he responded that, "I have full authority to negotiate a contract and even sign it." Scanland then advised that he reserved the right to consult with the company and its management, "if I needed facts, if I wanted to advise them of a legal situation that we might find ourselves in, I reserved the right to discuss such matters with top management, Mr. Drewer and Mr. Tuttle." 13 It does appear that the parties agreed, in principle, that a final contract should contain work rules, which Respondent was to prepare and submit. On September 26, the Union submitted its third draft proposal, covering 17 pages and some 21 articles. Among the deletions was the provision for notice to the Union when the employer needed additional unit employees, also a provision for a leave of absence to permit employees to attend labor conventions. In addition, the Union incorpo- rated subject matter which first appeared in Respondent's draft, such as a proposed rights of management clause, provision for probationary or temporary employees, and inter- changeability. A meeting on October 4 was the first attended by a Federal mediator. McCollum was uncertain whether it was at the meeting of September 24 or the meeting of October 4 that the Company sought and obtained the Union's consent to an increase in what is termed the warranty service rate This rate had been computed on the basis of $7 per hour, with the employees receiving 45 percent of the customer paid labor rate. It appears that the Ford Motor Company approved an increase of this rate to $8 per hour.14 The length of the October 4 meeting is obscure, except for the assertion of McCollum that most of the meetings were of 3 to 3 1/2 hours duration. McCollum credibly related that at the meeting of October 11, at which a Federal mediator was present, he inquired of Scanland "since we haven't agreed upon anything," other than the recognition and a portion of a nondiscrimination clause, if Scanland had authority to agree on any part of the contract. McCollum also advised Scanland that if he did not have such authority the Union correcting comebacks", a no-strike, no-lockout, and no-boycott provision, (permitting the employer, unilaterally, without notice, to terminate the agreement upon violation), and a provision permitting unit work to be done by nonunit employees, including supervisors, owners, managers, salesmen , and office clerical employees i3 In view of the allegations of paragraph 13(e) this assertion is considered, infra, p 83 and fn 36, as background 14 I find it unnecessary to resolve credibility in the matter of Scanland's disagreement with this assertion of McCollum Scanland related it was not until the meeting of October 23 that the customer labor rate matter was discussed However, in the light of Scanland's admission that the Company did submit a wage proposal to the Union on October 4 providing for an increase of $ 1 per flat rate hour, 45 percent of which was paid to the mechanic , on a rate increase from $704 to $8 per hour , McCollum's recitation would appear more accurate General Counsel, in his brief, correctly calls attention to the fact that this increase in labor rate resulted from a request of Respondent for authorization from Ford Motor Company, long before the advent of the Union , for modification of the rate , and this agreement, therefore , did not constitute an economic concession on the part of Respondent would appreciate his bunging someone in that could provide "answers." McCollum asserted that Scanland inquired, in return, if McCollum had authority to agree to any part of the contract, "without ratification of the members." 15 At the meeting of October 11, which extended over a period of approximately 3 hours, the Union submitted some supplemental proposals on such subjects as: nondis- crimination, rights of management, interchangeability, probationary and temporary employees, seniority, check- off, working effort , superannuated employees, company rules, grievance and arbitration, holidays, health and welfare, and wage rates At the same meeting the Company submitted supplemental proposals relating to conduct of union business on employer's premises, work rules, grievance, and arbitration. While McCollum listed a number of topics which were discussed at the October 11 meeting it does not appear that agreement was reached on any of the matters discussed. On October 23 the parties met for approximately 2 1/2 hours and discussed a number of Respondent's proposals, as well as some of the supplemental proposals submitted by the Union on October 11. McCollum related that while the parties discussed subcontracting, garnishments, probation- ary periods, seniority, and placement of temporary employees the only tentative agreement reached was on Respondent's proposal relative to superannuated employ- ees. The meeting of November 1 commenced late, by reason of the late arrival of McCollum, and inferentially lasted only approximately 2 hours. McCollum asserted they primarily discussed temporary probationary employees and tentatively agreed that different probationary periods were needed for different classifications , but did not agree on any time limitations.16 McCollum related that most of the meeting of November 8 involved a lengthy discussion of health and welfare and pension plans, with the Respondent advising they did not wish the Teamsters plans, and the Union responding that they were not insisting on the Union's plans but would be willing to look at whatever the Company wished to place on the table for discussion. The balance of the meeting appears to have involved a discussion of subcontracting. No agreements were reached on November 8. The meeting of November 14 was the first meeting at the 15 Scanland's dental of this exchange is not credited General Counsel correctly notes, in his brief, that Scanland attributed a question as to his authority to having been raised by Knapp on September 24 Burk initially corroborated Scanland , in asserting that Knapp raised the question Having his memory refreshed by a pretrial affidavit , in the possession of General Counsel , Burk then asserted that the pretrial affidavit was in error and that the question was in fact asked by Knapp The fact is, and the parties stipulated , that Knapp did not attend the October I i meeting Burk acknowledged that Scanland responded that he had full authority to negotiate and further that he reserved the right to talk to top management "as to cost factors and things of that [sort] which he did not have direct knowledge of, but that he had full authority to enter into an agreement when one was reached " 16 Scanland corroborated McCollum relative to the discussion of November 1 Scanland asserted that the Company originally wanted a full 6-month probationary period for each and every classification , while the Union felt this period was too long According to Scanland , after several long discussions , the parties agreed that there should be certain classifications with a 6-month probationary period while less skilled employees should have a 3-month probationary period HOLMES TUTTLE BROADWAY FORD 77 union headquarters. At this meeting the Union submitted a new wage proposal, which Scanland agreed to review and to comment upon at the following meeting. At this meeting the parties agreed to redrafting of the provisions treating with grievance, arbitration, layoff and discharge, and employee's obligations.17 McCollum asserted that at this session Scanland advised that Respondent was standing on the management's right clause in their original proposal and that the company reserved the right to revert to their original proposal in all cases.18 McCollum related the meeting of November 21 was also held at the union hall and extended over a period between 3 and 3 1/2 hours. Among the subjects discussed were coffeebreaks, lunch periods, and a company proposal that a grievant's refusal to submit to a polygraph test will constitute grounds for discharge. McCollum described the Respondent as being adamant on the matter of their request for a subcontract provision, after explaining that their franchise could be changed by the Ford Motor Company. McCollum asserted that the wage classifications, as distinguished from wages, were also discussed. McCol- lum was uncertain if it was at this meeting, or the following meeting, that he advised Respondent that the employees had taken a strike vote and had voted in favor of a strike.19 The meeting of November 29 was also held at the union office and lasted approximately 4 hours. At this meeting Respondent presented a list of work rules covering: coffeebreaks; lunch hours; garnishments; and the right of employees to work on personal cars. McCollum credibly related that the Federal mediator had the parties go through the various proposals, section by section, as the result of which it was determined that agreement had been reached in toto on only the recognition and discrimination clauses. It is not disputed that there were partial agreements, as to other proposals, subject to language 17 Identified as secs. 7, 8, 12, and 13 of the Company's original proposal. 18 Scanland identified the superannuated clause as one item discussed on November 14. It is undisputed that parties discussed art. 2 of the Company's original proposal dealing with nondiscrimination by the Union of nonmembers who were unit employees and the conduct of union business on the employer's premises. Scanland's denial of having asserted that the Company reserved the right to revert to their original proposals and his statement that , at variance therewith, he asserted, "we stand ready to negotiate at any time on any of these propositions" are not credited. 19 In his brief General Counsel calls attention to the fact that Respondent was requesting a subcontracting provision which expressly provided that the right to subcontract was solely a function of the employer and further that the exercise of subcontracting rights would not be subject to grievance or arbitration provisions . In addition the Company was requesting the Union to agree to a provision that neither the Employer nor the Union will be required to negotiate further on matters set forth in the agreement, or not specifically agreed to therein . General Counsel correctly asserts that the net effect of an agreement combining these requests is enunciated in Town & Country Manufacturing Company, Inc., 136 NLRB 1022, enfd. 316 F.2d 846 (C.A. 5) and Fibreboard Paper Products Corp., 138 NLRB 550, enfd. 322 F.2d 411 (C.A.D.C.). 20 In making my credibility findings relative to the meeting of November 29, 1 am not unaware of the fact that, on cross-examination, McCollum acknowledged that, in addition to the two articles he listed as having been previously agreed on, he conceded there had been a previous agreement on articles treating with tools and work comeback. Scanland enumerated articles on which no agreement had been reached, on November 29, as : a portion of the nondiscrimination clause; rights of management ; interchangeability ; temporary and probationary employees (on which Scanland asserted agreement was reached on November 29); changes which had not been agreed on. McCollum asserted that he offered to accept, in principle, 18 of Respondent's 23 proposals, which he enumerated. McCollum related those still open for further consideration were wages, group insurance, pension, grievance and arbitration, strike and lockout, and seniority. McCollum acknowledged the term of agreement was also still open. McCollum asserted that the Company offer of a wage rate was the existing rates the employees were receiving, in a rate range, and that the Company was insisting that it would retain the right to determine upward advancement of employee's in these rate ranges. McCollum advised that if the Union could obtain an increase of approximately 15 cents an hour, together with provisions for health and welfare and pension the Union could persuade the employees to accept such an agreement. McCollum asserted that Scanland's response was that he would have to take the proposals back to Mr. Tuttle and get his approval, not only on the increases but also on any amount allotted for health and welfare and pensions. McCollum asserted that Respondent did not respond to his offer to accept the Company's proposals as to the 18 sections on which the Union indicated a willingness to agree 2° Scanland acknowledged having a telephone conversation on approximately December 1 with McCollum during which McCollum inquired if Scanland had any counter offers. Scanland asserted that his response was "I told him at this time I did not, and I was attempting to reach Mr. Tuttle to give him some legal advice-I said I would be in touch; I would call him as soon as I had a chance to talk to Mr. Tuttle." Scanland asserted the following day he advised McCollum that he had no counter offers. A strike ensued commencing December 4. On December 13, during the period of the strike, the seniority; layoff and discharge (on which Scanland asserted there was substantial agreement); employees' obligations; superannuated employees (which Scanland asserted was accepted at that meeting); company rules; holidays; vacations; group insurance; strikes, lockouts, and boycotts; wages, work by employees not in the bargaining unit; past practices; and duration of agreement, Scanland listed items agreed to during that meeting as discipline, discharge, and uniforms. He asserted they were in substantial agreement on grievance procedure and arbitration, and that they had previously agreed on comeback and tools . He asserted the disagreement on company rules related to the words "idleness" or "loafing" to be used in the alternative. An examination of Respondent's submission of November 29 "work rules" reveals such a notation; however, neither word appears in the context. Scanland asserted that, on November 29, he advised McCollum that he still had not received the health and welfare and pension trust agreements and could not comment on those proposals until he had them. Asked to outline what McCollum stated relative to wage increase, on November 29, Scanland first responded, "Oh, he just listed the long list of classifications with-he made a wage proposal on 11/14, and I believe on the 29th he made a oral proposal of a list of wages-list of classifications and wages." Thereafter, asked if McCollum had proposed a 15-cent -an- hour increase across the board, Scanland responded, "I believe it was 15 cents on an hourly employee, it was $25 a month for monthly employees; dispatcher had to get 2 percent of sales, plus whatever his flat salary is." Asked to relate his response to this request of McCollum, Scanland then asserted, "I told him that I would have to consider these, that these were new proposals and that I reserved the right to review the legal implications of the entire situation, and with Mr. Drewer or Mr. Tuttle" Scanland then denied having stated on November 29 that he would have to take the union proposals back to Mr. Tuttle to get his approval on the economic items. Scanland acknowledged there was a discussion of a strike on November 29. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties met at Tucson Medical Center, where Burk was confined for treatment. At that time, McCollum advised that the Union was desirous of putting the employees back to work and that "if the Company could see their way clear to give us any increase or sit down and talk to us about the things that we were apart on," McCollum was certain the dispute could be terminated. The Company's response, if any, is obscure.21 On December 20, McCollum delivered to Scanland, at the office of the latter, a 19 page, 25 article proposal purportedly containing Respondent's proposals to the extent the Union agreed to them on November 29. McCollum's explanation of this draft was that it left open for further discussion the provisions of sections identified as health and welfare, pension, and wages. Also open was the matter of contract duration. McCollum asserted that he advised Scanland that the Union would agree to these articles, if the parties could get together on the remaining items. According to McCollum, he met with Scanland for a brief 10 or 15 minutes. Scanland looked over the document and advised McCollum that Scanland reserved the right to redraft the various provisions. McCollum related that Scanland indicated some reservations about the manage- ment's right clause contained in the union submission, which McCollum asserted was copied from Scanland's original proposal. McCollum related that he requested a wage increase of 10 cents per hour. According to McCollum, Scanland advised that he would have to take the union submission back to his principals before responding to McCollum's request.22 On December 24, by letter to Scanland and Burk, McCollum advised Respondent that the employees were unconditionally offering to return to work and that they requested reemployment. At the same time, the Union requested that bargaining be resumed. In the same letter the Union also requested a written copy of the Company's proposals. On the same day the Union filed an unfair labor practice charge, set forth supra. On December 27, Scanland, by letter, advised that a number of employees had been returned to their jobs on December 26, that in some instances replacements had been hired. The Union's attention was invited to the fact that the Company had submitted written proposals during the negotiating sessions and that Scanland was redrafting the management 's rights clause, pursuant to his undertaking at the meeting of December 20. A meeting, on January 6, 1969, was held in Burk's home and lasted approximately 3 hours. McCollum related that Scanland advised that Respondent was reverting to Respondent's original proposals. McCollum asserted after covering some 7 or 8 provisions he inquired of Scanland if Respondent really wanted a contract, pointing out that the Respondent had not agreed to anything up to that point and asserting that he saw no purpose in sitting there and being unable to agree on anything. McCollum made a point of asserting that relative to the items on which there had been agreement Scanland either desired to revert to his original proposal or to redraft. It is undisputed that the Respondent presented its redraft of the rights of management clause at the January 6 meeting. Asked to enumerate the sections which Scanland indicated would need further revision, McCollum related this referred to section B of the nondiscrimination clause, temporary transfer of employees into other classifications, and the classification clause. McCollum asserted he requested that Scanland submit a final proposal that the Company would be willing to sign, in response to which Scanland asserted the Company had submitted the final proposal "that their original proposal was their final proposal" together with agreements and modifications made during the negotiations. McCollum asserted that the Company inquired as to the term of the contract and related that he responded that this depended on the economic changes, if any, on a year-to- year basis. Scanland, at that time advised that he was negotiating on the basis of a 3-year contract, with no changes in economics in the 3-year period. McCollum asserted that he responded that without economic increases the Union would not agree to more than a I-year contract term.23 21 Scanland asserted that McCollum advised that he did not come to this meeting with his hat in his hand and did not know what the employees wanted but thought they would take a small raise and a pension plan Scanland asserted that he advised McCollum that McCollum had withdrawn his economic offers. McCollum denied having advised the Federal mediator, on December 9, of a withdrawal of the Union's economic offers Scanland asserted that he inquired as to what McCollum sought. Scanland asserted that McCollum responded that he did not know what the employees would take but that the Company should dismiss the replacements it had hired and then the parties might work something out Asked what McCollum stated as he left the meeting, Scanland responded, "He said-the last thing he said was 'if you have anything-I had said to him 'we don't know what you want , let us know and we'll give it our consideration', and he said `yes, I'll be in touch' " I do not credit this garbled recitation of Scanland 22 Respondent asserts that the management rights clause, submitted by McCollum, is at variance with Respondent's initial proposal I find this inaccuracy of McCollum of little consequence in consideration of the total record Scanland described the meeting of December 20 as lasting less than 5 minutes It is undisputed that it was not a scheduled meeting Scanland acknowledged that either he called the attention of McCollum, or vice versa, to the absence of language under the proposed sections covering pension , health and welfare, and wages Scanland asserted that he again called McCollum's attention to the fact that he had not received the trust agreements covering the Union's pension and health and welfare plans Scanland acknowledged advising McCollum that he would review the submission and then get in touch with him Scanland denied advising McCollum that he reserved the right to review any clauses, asserting that he didn 't have an opportunity to look at them Scanland acknowledged that, on December 20, he did advise McCollum that he was going to supply a rights of management proposal and that he would do so "as I get cleared and squared away," and that he did in fact submit such a proposal, to McCollum, on January 6 Asked if he discussed economic items, with McCollum , on December 20, Scanland made the following remarkable response , "No sir I would not discuss a substantive matter of any sort with a layman As a lawyer , I can't talk to another man's client without his lawyer being present And I will not discuss substantive affairs with lay people without witnesses being present, and there was no substantive matter being discussed except he did ask me to get the rights management clause out, which I said I would " The meaning of Scanland's protestations become incomprehensible and incredible in the light of the fact that McCollum, throughout these negotiations, was the chief spokesman for the Union, unaccompanied by an attorney until the last meeting, on May 22 In addition, it is undisputed that the meetings of the January 30, April 3, and April 30 were held with several individuals representing Respondent, but only McCollum appearing for the Union 23 Scanland gave the following explanation of the reason for the HOLMES TUTTLE BROADWAY FORD E. Refusal to Bargain-Events Within the Section 10(b) Period Since the charge herein was filed on July 11, 1969, all of the foregoing may be considered only as background, to cast light on the events within the Section 10(b) period. Local Lodge No. 1424, International Association of Machin- ists, AFL-CIO v. N.L.R.B. [Bryan Manufacturing Co.], 362 U.S. 411, 416. The events after January 12, 1969, are next set forth. 1. January 30 meeting It appears undisputed that there were no negotiations conducted on January 30. Apparently the parties met at the request of the Federal mediator. According to McCollum, Scanland advised that Respondent was not there to negotiate and that he had appeared at the request of Federal mediator. Scanland also asserted that the parties were at a complete impasse. Scanland acknowledged that he was requested by the Federal mediator to advise if he had any proposals to make, to which he responded in the negative. He then asserted that he wanted to clear up any question as to his authority, relating that he had absolute authority to negotiate. Scanland related he then asserted: "I have reserved the right to get the facts if necessary from the Company, and I have reserved the right to take time to advise the Company of their legal position at any given time." Scanland then asserted that Respondent had never received a "concrete wage proposal" from the Union, and he had not received the Union's pension and welfare plan or trust agreements. Company's revision of the management's rights clause which was submitted to the Union on January 6, and which concludes with the following: "and the exercise of the rights or functions by management shall not be subject to the grievance or arbitration provisions of this agreement, except that in addition to the foregoing rights of management of the company and the direction of the working forces and without limitation thereof the right to discipline and discharge employees for cause is vested with the company subject to the terms and conditions of this agreement " Scanland's explanation was: I gave them our rights of management clause as amended that date. We amended it for several reasons. If you will read our original proposal, it gives management various rights to determine what products are to be sold, etc., but also to discharge and hire and layoff men. At the bottom it says "none of the foregoing shall be subject to the grievance clause", but we had a grievance clause. It is obvious that there was a conflict, so if you will check my amended management clause, you will find that management's rights to choose the products, to place of business, to sell, etc., are not subject to a grievance clause. But in addition to the foregoing, the right of management of the Company and direction of their working force without limitation thereof ; the right to discipline and discharge employees for cause is vested with the Company [subject] to the terms and conditions of this agreement. Now, there was a hiatus there that I was attempting to clear up . "You can not give a grievance clause on the one hand and take it away with the other." Scanland denied that McCollum left the meeting after charging Scanland with a desire to redraft articles which had been previously agreed to. Scanland's assertion, by way of denial, is enlightening. Q. At that meeting did Mr. McCollum say anything about the Company wanting to redraft proposals already agreed to or words to that effect. A. He did not. I pointed out to him that we had not agreed to the various-to the proposals that we had agreed that we were not changing from our basic position except that he had asked and I had submitted a right of management clause that date. Q. Now, when you stated that, did Mr. McCollum say anything about the Company redrafting former proposals or anything or objecting thereto. 2. April 3 meeting 79 At the request of the Union, the parties met with the Federal mediator on April 3. McCollum related that he advised the Company that the Union was withdrawing all of its requests and demands and was agreeing to all of the Company's proposals, which McCollum asserted were contained in a document the Union had prepared.24 At that point McCollum signed the document, handed it to Scanland and requested that Scanland sign it. According to McCollum, Scanland responded that he would have to review the contract and that he was reserving his right, as the Company had during the negotiations, to withdraw all of the Company's proposals or to modify or change them, that before he could sign the agreement he would have to take it back and review it with Mr. Tuttle and that he would let McCollum know Respondent's position. McCollum related that Scanland inquired as to what authority McCollum had to sign the contract and inquired if McCollum did not have to take it back to the members and have it ratified. McCollum asserted that he advised Scanland that he had had a meeting with the employees earlier and had been given authority to accept the contract in whatever form McCollum was willing to sign it. McCollum acknowledged that he did not fill in the blank spaces appearing in the provision relating to duration of the agreement but indicated to the Company that he expected the period of the agreement to be one year from the date of its execution. McCollum asserted that the entire meeting encompassed a period of only approximately 1/2 hour.25 A. He did not object to my redrafting of the rights of management clause, and he did not point out a single proposition of any of our prior proposals that we had changed other than those which we had previously amended. Scanland's denial that there was any discussion , on January 6, of the Company's final proposal or of the contract term is not credited. 24 This document included, inter alia the following provisions described, supra, in In. 12: Nondiscrimination ; rights of management-the right to discipline and discharge employees "for cause is vested with the company subject to the terms and conditions of this agreement" (the balance of the management rights, including subcontracting, are not subject to the grievance or arbitration provisions); interchangeability; seniority, subject to the judgment of the employer as to skill and ability being equal, and to apply on layoff and recall; employees obligations (included under seniority); discipline and discharge (with grievance and arbitration limited to the question of the existence of the alleged conduct); grievance and arbitration included provision for a polygraph test of any witness; a no-strike, no-lockout, no-boycott provision (permitting the employer, without notice, to terminate the agreement , upon violation). 25 Scanland acknowledged that McCollum presented him with what McCollum represented to be an agreement covering the company offers and matters previously agreed on by the parties. Scanland acknowledged that McCollum signed the agreement in Scanland 's presence. Scanland then confirmed the recitation of McCollum , as follows: Q. Now, at this meeting, and I'm referring to the meeting of April 3, 1969, Mr. Scanland did you state that you were reserving the right to withdraw, modifying or change previous proposals made by the Company or words to that effect? A. What I said was "I am reserving the right to review this, to determine whether or not it meets the terms that we have either previously offered or have been agreed upon," and I said, "Yes, I am going to reserve the right to modify as the Union has said in everyone of its contracts." Q. Did you state at this meeting of April 3, 1969, that you would have to take this contract proposal back and review it with Mr. Tuttle or words to that effect? (Continued) 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. April 30 meeting McCollum asserted that the next meeting, on April 30, was arranged by the Federal mediator, at the request of Scanland. McCollum asserted that Scanland advised that McCollum had inadvertently omitted an article in drafting and submitting the signed agreement on April 3. It appears undisputed that Scanland did call the Union's attention to some typographical errors. In addition, according to McCollum, Scanland advised that there was a conflict between some provisions of article 9 and article 11 (the former treating with discipline and discharge and the latter with work rules), which Scanland advised he would redraft. McCollum asserted that Scanland requested an insertion, in article II, section B, providing that if an employee violated this section he would be subject to discharge. McCollum asserted that he responded that the Union could not accept that modification. McCollum acknowledged that when he signed the agreement on April 3 he did not indicate any period of time as to its duration, orally or otherwise. At the meeting of April 30, McCollum advised Scanland that McCollum had in mind a 1 year agreement. McCollum related Scanland responded that the Respondent was thinking in terms of the contract ending simultaneous with the termination of the certification year or July 12. McCollum asserted Scanland indicated a doubt that the Union continued to represent a majority of the employees, and used this as the basis for Respondent's contract term limitation. McCollum related that the meeting of April 30 encompassed approximately 2 1 /2 hours.26 On May 15, 1969, by letter, McCollum called the attention of Scanland to the following: that McCollum had signed a contract consisting of all the company proposals on April 3 and requested Scanland's approval (execution); that at the meeting on April 30 Scanland contended that one of the articles had been omitted, which McCollum described as having occurred inadvertently, and that other matters (typographical errors) had been agreed on; that if there was a conflict between two articles it was a conflict of the Respondent's making, since these articles had been initially proposed by Respondent. The letter concluded by requesting the execution of the agreed on contract. Scanland responded, by letter, the following day, asserting A No, Sir, I did not Q Did you say anything about Mr Tuttle at that meetmg7 A I said "I am going to reserve the right to consult and advise both Mr Drewer and Mr Tuttle on the legal implications of exactly where we stand at this time in our negotiations " I do not credit Scanland's denial that he inquired as to McCollum's authority to execute the agreement Scanland acknowledged making an inquiry on either April 3 or April 30, as to when the employees had ratified the agreement Scanland asserted that McCollum responded to this inquiry by advising Scanland that it was none of his business 26 Scanland's explanation of the modification in article if, section B, was that the Union had , inadvertently or otherwise, deleted a sentence which read "Any employee who violates this shall be subject to immediate discharge" According to Scanland, McCollum asserted that he had not agreed to this particular sentence Scanland enumerated specific stenographic or typographical errors which he called to the attention of the Union Scanland related that he called attention to specific provisions, which according to Scanland the Respondent had not previously agreed to , upon which agreement was reached during this particular meeting that there were still differences to be resolved, and requested a meeting on May 22. 4. May 22 meeting At the meeting on May 22, in addition to Scanland, Burk, and Parker, Attorney Erwin Lerten and Robert Drewer, president of Respondent, were present on behalf of Respondent. The Union was represented by McCollum and the union attorney, Ira Schneier. The meeting was brief, encompassing approximately 15 minutes. According to McCollum, Lerten advised that if the Union would agree to the incorporation of the provision relative to discharge, in article II, section B, a correction in the holiday provision, and other errors, which McCollum described as inadvertent, Respondent was prepared to sign a contract and brought Drewer to the meeting for that purpose. At this point Schneier, after examining the document, responded that the proposed termination date was July 12, a period of approximately 7 weeks, therefore no contract at all. Lerten responded this was the length of time that the Company was willing to agree on because of its doubt that the Union represented a majority of the employees and that the Company was considering the filing of a decertification petition. Schneier responded that the Union would look the contract over and "get back with them." It is undisputed that the Union did not communi- cate further, until the filing of the charge herein. Schneier corroborated the assertions of McCollum relative to the meeting of May 22. He particularly made a point of the fact that the Union asserted that they had an agreement with Respondent, having agreed to all of the Company's proposals on April 3. Schneier did not dispute the fact that the agreement did not contain a provision relative to its period of duration or termination, asserting that he assumed that it would be a reasonable time. Schneier acknowledged that Lerten advised that Respon- dent could not accept Schneier's assertion and offered an agreement which it had prepared, providing a termination date of July 12. Schneier acknowledged that he advised Lerten that he considered this offer as no contract at all.27 F. Union Majority Status Respondent's effort to limit the term of an agreement to Scanland summarized the conclusion of the April 30 meeting by asserting that he advised McCollum that he was going to "redo this contract" to fill in everything that had been agreed on Scanland also advised McCollum that Respondent had a good-faith doubt as to the Union's representing a majority of the employees and for that reason it was considering confining the agreement to the balance of the certification year Scanland asserted that at the conclusion of the April 30 meeting the term of the agreement and the omission of the discharge provision from article II, section B, were the only areas on which agreement had not been reached 27 1 do not find any substantial disagreement in the recitation of Scanland from that of McCollum as to the discussion of May 22 Scanland asserted that Lerten advised the union representative that Lerten was going to file a decertification petition the same afternoon I do not find of any consequence the assertion of Scanland that McCollum stated he was going to take the matter up with the employees, a fact denied by McCollum and Schneier Scanland did not dispute the fact that the meeting terminated on the advice by the Union that the Union would advise Respondent further relative to what the Union intended to do in the matter HOLMES TUTFLE BROADWAY FORD 81 the certification year, terminating July 12, 1969, was asserted to be due to Respondent's "good faith doubt" that the Union continued to represent a majority of the employees in the bargaining unit. Accordingly, a portion of the evidence presented to support the existence of a reasonable basis for said doubt is next set forth. General Operations' Manager Parker asserted that on December 24, 1968, about 9:30 or 10 a.m., Tom Zwack, identified, as one of the two i employee members of the bargaining committee, Paul Metz, Harry Anderson, Carl Brinkman, and James Myers appeared at his office. Zwack advised that he represented 90 percent of the employees on strike and that they wished to come back to work. According to Parker, Zwack asserted "we are through with the Union. They have lied to us. They have not kept their promise, and we want to get out." Parker related that he advised the employees that he was unable to discuss any matters with them since they were represented by the Union, and that he could not recognize Zwack as having any authority for the membership and could not discuss their return to work. Parker then advised the employees, "If, as individuals, you wish to return to active duty with Holmes Tuttle, you may the 26th, the day after Christmas, in the morning, contact me individually, and I will discuss, based on the availability of the jobs you are looking for, your return to work." Purportedly for reference purposes, Parker caused the list of the employees employed April 1 through May 22 to be prepared. The list reflects 40 employees on April 1.28 Parker asserted that he was approached by 29 of those listed, in addition to Scozzafava, on various dates commencing in January and continuing into May, for the purpose of seeking his assistance in their efforts to divest themselves of union representation. Parker, without notes, recited the approximate time and place of each conversation, with each employee, and identified others present on each such occasion. Parker's uncorroborated recitation is summarized as follows: His conversation with Ahumada was in the last week of January, or the first week of February, with Summers present. Ahumada inquired as to how they could get out of the Union. Parker responded he could not advise or help them "and to the best of my knowledge there was no way to get out of it." Summers' inquiry was to the same effect. Parker advised them "I am not at liberty to advise you in any manner in any way to get out of the Union or to secede from their representation." Parker then asserted that he advised that he did not appreciate them talking to him, that he had been advised by Mr. Drewer that he was not to discuss the Union or the Union's business with any employee "for any reason." Apparently in spite of his injunction, Parker asserted that Ahumada again talked to him on the same subject 2 weeks later and again in May. On these occasions, Ahumada yelled "When you are going to get us out of the Union." Parker related that he responded that he could not discuss it. 28 The names of Tom Zwack and Bennie Fox, the employee members of the negotiating committee , do not appear. It must be inferred they were no longer employed. Why Scozzafava was included on the list when he was terminated on March 31 is unexplained. Craig was terminated on May 2. The total was increased to 41 with the hiring of Berno and Martinez, prior to May 22. His conversation with Anderson was on approximately January 15, with Metz within hearing distance. Parker asserted that Anderson inquired as to how they could get out of the Union that he responded that to the best of knowledge there was no way to get out of the Union and that he had no authority to advise Anderson. Asked when he next discussed the matter with Anderson, Parker responded that Anderson had discussed the matter with him "almost every week since January." Each time he would say substantially the same thing. On April 4, the day after McCollum had signed the agreement, Anderson, with Metz and Myers present, advised he had attended the union meeting the prior evening and intended to get out of it. According to Parker, Metz commented that the conditions they would be working under, under the contract, would be worse than their present conditions. Myers inquired if Parker would allow Myers to circulate a petition, inferen- tially for decertification. Parker asserted that he advised Myers that he would not "sanction, aid or abet" any attempt to leave the Union. Parker also stated that he advised Myers he would not furnish Myers with an address or a telephone number, which were a matter of public record, inferentially referring to the Board's location. Parker then asserted that he advised the employees that he did not desire to be further advised of their intentions. Apparently in spite of the last injunction, Parker asserted that he had "numerous" conversations with Myers, in which Myers indicated he did not wish to be represented by the Union. Parker described these conversations as being "everytime I saw him thereafter, which was almost daily, he always had some plan to get out . . . and each time I told him that I was not privileged or even disposed to aid their demise from the Union." While Parker initially listed Kuhlman as one of those who spoke to him about getting out of the Union, he later was self-contradictory in asserting that Kuhlman did not speak to him about the getting out of the Union. Kaylor spoke to him about the middle of January and advised Parker that Kaylor had been active in trying to get the group out of the Union and had spoken to other bodyshop members. Parker asserted that he advised Kaylor that he was wrong, that he did not have Parker's permission, that he should discontinue immediately, and that if he wanted to join or not to join it was up to him "but I would have no proceedings going on during working hours to get out or in of any organization, that they were supposed to be working." 29 Parker then asserted that Kaylor had spoken to him on four or five other occasions before May 22 and that in each occasion Kaylor advised him of "essentially the same thing; he has stated that he has all of the people tied up, that "we're going to get out." Parker asserted that on each occasion, he advised Kaylor that what Kaylor does is his own personal business, if it doesn't interfere with company policy or endanger the company position, and that we would have no part of any movement to help any employee get out of the Union. The total is compared to an estimated total of 75, with 64 voting on the day of election, July 3, 1968. 29 There is no evidence that Kaylor's activity occurred during working hours and no explanation of the reason for Parker's assumption of that fact. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parker asserted that Kennedy spoke to him on three or four occasions. In early January, with the parts manager present, Kennedy inquired as to when they were going to get the union problem over with. Parker asserted he responded that he had no information, knowledge, or advice and did not wish to discuss it. His last conversation was in early May when Kennedy inquired when they were going to get a vote to get out of the Union, and Parker asserted he responded he did not have the faintest idea and could not discuss it. Parker asserted he had two or three conversations with Lock, the last being in April with Eckert, C.R. McInnes, and Vidal present. Lock inquired as to when they were going to get rid of the Union and Parker asserted he responded he could not advise on any method of getting out of the Union and did not wish to discuss it further. Parker asserted that C.R. McInnes, in early April, asked if Parker could be of any help in suggesting a means for the employees to force the vote to remove the representation by the Union. Parker asserted that he responded that he could not be of help and would not be of any help. Parker asserted that Noel, on more than two occasions, talked to him about the Union. Asked what they talked about he asserted that Noel inquired when they would have a decertification vote. Parker asserted he responded that he had no knowledge and could not be of any assistance. He placed the time of his first conversation with Noel as the last part of March and his last conversation as the first week in May. Parker placed two conversations with Raymond. The first in early January during which Raymond inquired as to when Parker was going to get him out of the Union, to which Parker asserted he responded that he was not going to get them out of the Union and was not able to and that it was unlawful for him to advise them. In the second conversation, near the end of March or early April, Raymond inquired "have you gotten us out of the Union yet." Parker asserted he responded in the negative and advised that he did not wish to discuss it further. Parker described two conversations with Saavedra, the first in March and the second in April, about the time of the union meeting, inferentially related to the April 3 bargaining session. During the latter conversation Saavedra advised Parker there was much dissension and discontent "and the fellows were all getting together to get out of the Union." Parker related, "I told him that that was most interesting but I did not want to be aware of any such facts." Weiler spoke to him "almost daily," commencing in early January, asking if there was not something Mr. Tuttle could do to get the men out of the Union, that they had worked for him for many, many years and that they wanted to go back to working for Mr. Tuttle and not have union representation. Parker asserted he responded that they had signed union cards, the Union was certified and would represent them for a year, at least.30 His last conversation with Weiler was in mid-April, when Weiler advised the employees were all together ready to vote the Union out, and inquired when the vote would be taken, asserting they understood it would be in July when the certification year ended. Parker asserted he responded that the assumption was incorrect and that he knew of no way, for them "to get out of the Union." I find it unnecessary to further extend this decision, by setting forth other conversations Parker purportedly had with other employees. While undoubtedly there is a degree of truth running through the recitation of Parker, it is at the same time, to a degree, improbable and incredible. Parker, on the one hand, asserts that he advised employees that he was instructed not to discuss the Union or union business, yet, on the other hand, he had "numerous" conversations with Myers, "almost daily" conversations with Weiler, almost "every week" with Anderson, and numerous conversations with others, all on the same subject of how the employees could get rid of union representation. Parker's posture of a refusal on his part to become involved cannot be equated with repetitious conversations with the same employee. Illustrative, Parker advised Anderson there was no way to get out of the Union, and Parker had no authority to advise him. It is clear, from the recitation of Parker, that some disenchantment, with the Union's ineffectiveness, was attributable to the Union's report to the employees, at the early April meeting, on the Union's capitulation, on April 3, and its agreement to accept conditions advanced by, and adamantly insisted on by, Respondent. In other words, Respondent's intransigence and the employees disenchant- ment are directly related in time, April 3, and result. There are legal as well as factual reasons, explicated infra, for finding no substance or merit to Respondent's assertion of a good-faith doubt of the Union's majority status. G. Concluding Findings The Supreme Court has observed that the underlying purpose of the Act is industrial peace, and that to allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, but is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with a view of furthering industrial stability and with due regard to administrative prudence.31 The Union's majority during the certification year is irrebuttable.32 The Court reaffirmed its prior holding that, where a union's majority was dissipated after an employer's unfair labor practice in refusing to bargain, the Board could appropriately find that such conduct had undermined the prestige of the Union and require the employer to bargain with it for a reasonable period despite the loss of majority.33 I have found undisputed that, on May 22, 1969, Respondent limited the proposed period of the collective- bargaining agreement to a term ending July 12, or a period encompassing only 7 weeks. In Capital Aviation 34 the Board found an insistence on a 7-week contract, particularly in the light of the adamant 30 Why this would constitute an "almost daily" conversation is 32 Id at 104 unexplained 33 Id at 102, citing Franks Bros Company v. N L R B, 321 U S 709 31 Brooks v N L R B, 348 U S 96, 103 34 Capital Aviation, Inc, 152 NLRB 745, 753 HOLMES TUTTLE BROADWAY FORD 83 positions taken by Respondent to frustrate bargaining, constituted a failure to bargain in good faith, despite asserted evidence of employee disenchantment during the certification year. In Grand Rent A Car35 the Board found the totality of Respondent's conduct that it was seeking to avoid arriving at an agreement with the Union in order to dissipate its majority representation. In this case the Respondent sought to limit the term of the agreement to approximately 35 days. The Board has held that a contract for less than a year to expire at the end of the certification year is normally not one that will give full force and effect to the Board's certification. Consequently, the Board views insistence on such a contract, without good reason appearing therefor, as evidencing a lack of good-faith bargaining. Insulating Fabricators, Inc., Southern Division, 144 NLRB 1325, 1329-1330. On April 3, 1969, the Union advised Respondent it was withdrawing all of its requests and demands and agreeing to all of Respondent's proposals. The record up to that point reflects no areas of complete agreement except as to the recognition and part of the nondiscrimination sections and minor portions of other sections. Respondent's response was evasive and noncommittal . I have found that Scanland responded that he would have to review the contract, that he reserved the right to withdraw or modify prior proposals, and that he would have to review it with Mr. Tuttle .36 It thus appears, and I find, that Respondent: engaged in bargaining in bad faith with no intent to reach agreement; insisted on an agreement limited in duration to an unreasonably short period of time; well before the expiration of the certification year, without entertaining a good-faith doubt of the Union's majority, filed an election petition; failed to provide its negotiators with sufficient authority to conclude an agreement with the Union; and made proposals, during the course of negotiations, designed to discourage acceptance by the Union. Having considered the events which occurred prior to January 12 only to the extent that they cast light on the events within the Section 10(b) period.37 I find that by the conduct described Respondent failed and refused to bargain in good faith, since January 12, 1969, in violation of Section 8(a)(5) and (1) of the Act. In so finding I am mindful of the holding of the Board in the General Electric case.38 In that case Respondent contended that an employer cannot be found guilty of having violated its statutory bargaining duty where it is desirous of entering into a collective -bargaining agreement, where it has met and conferred with the bargaining representative on all required subjects of bargaining as prescribed by statute and has not taken unlawful unilateral action, and where it has not demanded the inclusion in the collective-bargaining contract of any illegal clauses or insisted to an impasse on any nonmandatory bargaining 35 Grand Rent A Car Corp. d/b/a Avis Rent-A-Car, 169 NLRB No. 36. 36 Scanland acknowledged the latter, even though he would characterize it as advising Mr. Tuttle "on the legal implications of exactly where we stand at this time in our negotiations." 37 Local Lodge No. 1424, etc., supra; The Herald Co. and The Post Standard Co., Inc., 181 NLRB No. 62 (March 3, 1970). 38 General Electric Company, 150 NLRB 192, enfd. 418 F.2d 736 (C.A. provisions. Citing the finding of the Supreme Court, in the Katz case,39 that the Board is authorized to order the cessation of behavior which is in effect a refusal to negotiate, or which directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement, the Board found that a party who enters into bargaining negotiations with a "take-it-or- leave-it" attitude violates its duty to bargain although it goes through the forms of bargaining , does not insist on any illegal or nonmandatory bargaining proposals, and wants to sign an agreement. Good-faith bargaining means more than "going through the motions of negotiating ," the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. Obduracy and obstinacy may be weapons of bargaining but where they are used not in the interest of bargaining but in its frustration, we cannot give them sanction or refuge. Procrastination and negativity are not components of negotiation. The Act requires more than pretense . There is a duty on both sides, though difficult of legal enforcement, to enter into discussions with an open and fair mind, and a sincere purpose to find a basis of agreement . Tex Tan Welhausen Co., 419 F.2d 1265 (C.A. 5), enfg. 172 NLRB No. 93, remanded 397 U.S. 819. Finally, it must be observed that Respondent, by its intransigence, succeeded in its effort to disparage and discredit the Union in the latter's effort to exercise its statutory function, particularly on April 3, 1969.40 Diminu- tion of the Union's majority, if true, must be ascribed to the misconduct of Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent, upon request, bargain collectively with Teamsters, Chauffeurs, Ware- housemen & Helpers of America Local #310, as the exclusive representative of all employees in the unit herein found to be appropriate for the purpose of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, upon request, embody such understanding in a signed agreement. In addition, to 2), cert. denied 397 U.S. 965, rehearing denied 397 U.S. 1059. 39 N.LR.B. V. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 747. 40 Reference is made to General Operations Manager Parker's report of the reaction of employees, as reported by Anderson, and others, as a result of the union meeting, that they would be working under conditions worse than those existing. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provide the Union with ample time for carrying out its mandate, and to prevent the employer from knowing that "if he dillydallies or subtly undermines union strength" he may erode that strength and relieve himself from his duty to bargain, the effective period of duration of the certification shall be deemed to begin on the date the Respondent commences the bargain in good faith with the Umon.41 It is further recommended that Respondent be ordered to cease and desist from in any like or related manner infringing on rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen & Helpers of America Local #310 is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Respondent's general service operations in Tucson, Arizona, exclusive of all other employees, office clerical, plant clerical, and shop clerical employees, salesmen, guards, watchmen, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been the exclusive representative of all employees in the aforesaid unit, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, since July 12, 1968. 5 By failing and refusing to meet and bargain, in good faith, on and after January 12, 1969, with the Union, as the exclusive collective-bargaining representative for the em- ployees, in the appropriate unit described herein, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act, and has thus interfered with, restrained, and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act and has thus engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices effecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case, I recommend that the Respondent, Holmes Tuttle Broadway Ford, Inc., its officers, agents, successors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith, with Teamsters, Chauffeurs, Warehousemen & Helpers of America Local #310, as the exclusive bargaining representative of all its employees constituting the unit herein found to be appropriate for the purposes of collective bargaining. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act- (a) Upon request, bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers of America Local #310, as the exclusive representative of all the employees of the aforesaid appropriate unit, and, if an understanding is reached, upon request, embody such understanding in a signed agreement. (b) Post at its places of business, particularly in the repair shops, in Tucson, Arizona, copies of the notice attached hereto marked Appendix.42 Copies of said notice, to be furnished by the Regional Director for Region 28, after being signed by Respondent's representative, shall be posted by the Respondent and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the receipt of this Trial Examiner's Decision what steps it has taken to comply therewith. It is further recommended that unless Respon- dent shall within 20 days from the receipt of this Trial Examiner's Decision notify said Regional Director, in writing, it will comply with the foregoing Recommended Order,43 the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 41 Mar-Jac Poultry Company, Inc, 136 NLRB 785, Monroe Manufacturing Company, etc, 167 N LRB No 157, Hy-Lond Hospitals, Inc, 181 NLRB No 6 42 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 In the event the Board's Order is enforced by a judgment of the United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply therewith " HOLMES TUTTLE BROADWAY FORD APPENDIX NOTICE 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 with Teamsters, Chauffeurs, Warehousemen & Helpers of America Local #310 as the exclusive bargaining representative of all the following employees: All of our employees at our general service operations in Tucson, Arizona, exclusive of all other employees, office clerical, plant clerical, and shop clerical employees, salesmen, guards, watch- men, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the aforesaid appropriate unit, with respect to rates of 85 pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed contract. Dated By HOLMES TUTTLE BROADWAY FoRD, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 7011 Federal Building & U.S. Courthouse, 500 Gold Ave., S.W., Post Office Box 2146, Albuquerque, New Mexico 87101, Telephone 505-843-2507.