Titus-Will Ford Sales, Inc.

TITUS-WILL FORD SALES, INC. Titus-Will Ford Sales, Inc. and Automotive & Special Services Union, Local No. 461 . Case 19-CA-4576 May 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On September 21, 1970, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions 1 and a supporting brief and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 atfirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, except as modified below. We find, on the basis of the facts as set forth fully in the Trial Examiner's Decision, that this dispute is essentially a dispute over the terms and meaning of the contract between the Union and Respondent. Respondent and the Union have had a continuous collective-bargaining relationship since 1940. The present contract contains a grievance procedure which provides that all misunderstandings or dis- putes of any character relative to interpretations of matters covered by the agreement are to be finally resolved by binding arbitration. Although the Union originally took up the matters involved in this proceeding under the provided grievance procedure, it then abandoned such procedure by filing its charge in this case. In these circumstances, for the reasons stated in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 150, we conclude that the policy of promoting industrial peace and stability through collective bargaining warrants our requiring the parties to honor the contractual grievance and arbitration obligation that they themselves have voluntarily established under binding commitment, and we shall issue an order to that effect. ORDER 147 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purpose of entertaining an appropri- ate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBER JENKINS, dissenting: For the reasons set forth in my and Member Fanning's dissents in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 150, I think the Board neither can nor should require that the issue of violation of Section 8(a)(5) of the Act be determined by an arbitrator instead of this Board. Therefore, I would proceed to the merits of the Case. ' By direction of the Board on November 10, 1970, the Board's Associate Executive Secretary ordered that Respondent's motion to dismiss the General Counsel's exceptions be denied and that Respondent be given an extension of time to file an answering brief 2 We hereby correct the following inadvertent errors in the Trial Examiner's Decision which in no way affect his conclusions or our adoption thereof In In. 5 it is clear that Hatfield rather than Hendricks testified as to whether the inventory control work was discussed at the October 30 or 31 meeting between himself, Leake, and Will; and in the 12th sentence in the ninth paragraph of sec III, D(l), the name Leake should be substituted for Leach TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Tacoma, Washington, on May 26, 1970. The issues litigated were framed by a complaint dated February 4, 1970, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, and an answer filed by Titus-Will Ford Sales, Inc., herein called Respon- dent, which admits many of the factual allegations of the complaint but denies that Respondent violated the Act. The complaint was based on a charge filed on November 19, 1969,i by Automotive & Special Services Union, Local No. 461, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union. All parties appeared at the hearing and were given full opportunity to participate, adduce relevant evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs which have been carefully considered were filed on behalf of the General Counsel, the Respondent, and the Union. I All dates are in 1969 unless otherwise specified 197 NLRB No. 4 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Issues 1. Whether Respondent unlawfully refused to bargain by unilaterally, and without prior notice to the Union, permanently assigning inventory control work to employ- ees outside of the bargaining unit represented by the Union while the employees in that bargaining unit were oir strike. 2. Whether Respondent unlawfully refused to bargain with the Union over the assignment of inventory control work to such unit employees after the conclusion of the strike. Upon the entire record2 of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Washington corporation, sells and serv- ices automobiles and sells automobile parts at its place of business in Tacoma, Washington. During 1969, the value of Respondent's sales and services exceeded $500,000 and during that period it purchased goods or services from directly outside the State of Washington valued in excess of $50,000. Tacoma Auto Dealers, herein called the Association, is an association of employers in the Tacoma, Washington, area which represents its member-employers in collective bargaining with various labor organizations, including the Union. At all times material herein, Respondent has been a member of the Association for collective bargaining with the Union. The complaint alleges, Respondent admits, and I find that Respondent and the Association are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent, as a member of the Association, has contracts with the Automotive Machinists Umon and Retail Clerks Union as well as with the Union . Respon- dent's collective-bargaining relationship with the Union commenced in about 1940 and has continued without interruption since then . The Umon represents employees of the Respondent in the following unit (herein called the bargaining unit) which is conceded, and I find, to be appropriate: All parts countermen ; service salesmen and towermen; car conditioners, lubricators, and steam cleaners; 8 The General Counsel filed a motion to correct the transcript of the record In the absence of any opposition to the motion, it is granted The record is replete with errors in transcription and the General Counsel's motion corrects only a small proportion of them However, as I believe that undercoaters and rustproofers; motorcycle riders, washers, polishers, tire service, pick-up drivers, and janitors; used car lot attendants; and apprentices with respect to any of the above-mentioned classifications employed by the member-employers of the Associa- tion, excluding salesmen, mechanics, office clerical employees, professional employees, guards, and super- visors as defined in the Act. At all times material herein, with the exception of the period between June 1, 1969, and August 1, 1969, Respondent, through its membership in the Association, was a party to collective-bargaining agreements between the Union and the Association covering the employees in the bargaining unit. The contract which was in effect from June 1, 1966, until June 1, 1969, contained an article XIII which read: ARTICLE XIII-SUBCONTRACTING 13. The employer agrees that all work now covered by the job classifications in this agreement will continue to be performed by members of Automotive & Special Services Union Local #461, if performed at the employer's place of business. The only job classifications set out in this agreement are listed under wage classifications. One of these classifica- tions is that of parts counterman. There is no classification for inventory control clerk. The contract also contains a grievance procedure which provides that misunderstand- ings or disputes relative to interpretations of matters covered by the agreement are to be resolved by binding arbitration. In late April or early May 1969, negotiations began for a new contract. On June 23, Respondent's employees in the parts department went out on strike. The strike ended with the negotiation of a new contract effective from August 1, 1969, until June 1, 1971. The new contract continued the subcontracting and grievance clauses. Like the old con- tract, it had a job classification for parts counterman but none for inventory control clerk. The new agreement for the' first time contained a management rights clause which read: ARTICLE XVII-MANAGEMENT RIGHTS 17. Except as specifically limited herein, the em- ployer shall have the exclusive right to manage its business, to control, direct and supervise all operations and work to be performed, direct all working forces including but not limited to the right to select and hire, promote, judge the competency of, lay off and recall employees, to discipline or discharge employees for just cause, to control and regulate the use of all equipment, materials, tools and other property of the employer and to maintain efficiency among its employees. the errors not corrected by the motion are either self-correcting because of their context or that they occur with regard to matters which are not necessary for the resolution of the issues in this case, I will refrain from adding to the list of corrections TITUS-WILL FORD SALES, INC. 149 B. The Inventory Control Work 1. Prior to the strike Respondent maintains a large parts department. About half of the parts handled by that department go to Respondent's own repair shop and garage. The balance go to other automobile dealers. Prior to the strike of June 23, Respondent employed nine parts countermen. Their principal duty was to sell parts. These parts, which had about 15,000 different part numbers, were stored in various types of bins on Respondent's premises . Except for the period between 1946 and 1951 or 1952, the parts counter- men had the responsibility of keeping track of the parts on hand in the bins. This was done by use of a "short" list. When a counterman took a part from a bin, he was to look in the bin and see if that item was in short supply. If more parts were needed, he was to add the part number to a "short" list that was kept on the counter. These lists were picked up by the parts manager daily and were used to determine what reorders were to be made. In making up the short lists, the parts countermen did not actually count the parts in the bins, but simply scanned the bins to check for current shortages. The parts countermen also labelled the bins to give them a rough idea of what was there. No running list of parts in and out of stock was kept. All of the parts department personnel took part in preparing the short lists. The time spent on all such work, together with the time needed for the actual stock ordering, was sufficient to occupy one man on a full- time basis. The inventory control system described above was not followed during the years 1946 through 1951 or 1952. During that time, a perpetual inventory system was used which was almost the same as the assort-o-post system described below and the work was performed by office clerical employees who were not in the bargaining unit. Some time prior to May 26, a representative of the Ford Motor Company surveyed Respondent's operation and came up with a number of recommendations, one of which was that a perpetual inventory system be established. James W. Will, the president of Respondent, decided to accept this recommendation and go back to a perpetual inventory system. To get ready for the new system, a complete physical inventory of all, the parts was taken on May 22, 23, and 24 by the parts countermen and other persons who were called in for the job. The new system was put into effect on Monday, May 26. Under this new system, parts of copies of the sales slips were attached to cards on which a perpetual inventory was kept. These cards were posted to show all items that left the stock and all items from new orders that were added to stock. On the basis of this system, Respondent could ascertain parts in stock at any time without the need for physically checking the parts bin or taking a physical inventory. In the process of streamlining the operation under this perpetual invento- ry method, which was called an assort-o-post system, Respondent reduced the numbers assigned to different parts from about 15,000 to 14,000. Even after the new system was put into effect on May 26, the transition to the perpetual inventory was not complete, as individual cards had to be updated where merchandise was stocked and the numbers had been superseded . On May 26, Respondent picked parts counterman James Arend to operate the new inventory control system because Arend was the only one in the parts department who had previous experience with an assort-o-post system and because Arend's knowledge of the parts was needed in the setting up of the system. Arend was never told that the work would be temporary. However, Respondent started the new system with the intention that it would ultimately be operated by office clerical employees.3 Arend operated the assort-o-post system from May 26 until he and the other parts countermen went on strike on June 23. During that period, Arend spent between 60 and 66-2/3 percent of his time working on the assort-o-post system . In addition, he worked on the counter to fill in when the other countermen were out for lunch and he helped with the phone when other dealers called in to check whether parts were in stock. Though Respondent did not notify the Union concern- ing its decision to change its inventory control system to the assort-o-post method, the General Counsel does not contend, nor does the complaint allege, that the change of system in any way violated the Act. Lewis Hatfield, the secretary-treasurer and executive officer of the Union, acknowledged that he was aware of the new inventory control method a few days after it was instituted and that he didn't make any objection to the new system because he thought it was a good idea . The alleged refusal to bargain does not relate to the change to the assort-o-post system, but to a subsequent transfer of the assort-o-post work from Arend to an employee who was not in the bargaining unit. 2. The strike and the transfer of the work On June 23, Arend and the other parts countermen went out on strike. Respondent continued to operate during the strike even though none of the employees in the bargaining unit came to work. One of the clerical employees from the office who was not a member of the bargaining unit was assigned to operate the assort -o-post system. The General Counsel does not contend that this assignment was in reprisal for the strike . Though the record is not clear as to whether this assignment was made on a permanent basis as of the date of the strike, it appears that sometime during the strike it was made permanent . Since the termination of the strike, Respondent has consistently taken the position that the assort-o-post work is nonunit work and properly belongs to the office clerical employees. Carol Haugen, the office clerical employee who does the assort -o-post work, spends the better part of her working day on that system, even though she also helps in the office by answering the telephone and waiting on customers who are coming in to pay their bills. Though her testimony was rather vague as to the actual number of hours she spends on the assort-o- post work and how much help she gets from another girl who occasionally assists her, in general it corroborates the 3 This finding is based on the credited testimony of General Parts and Service Manager Leach 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of Arend that about 60 to 66-2/3 percent of an employee's time was needed for that work. When Arend returned to work after the strike on August 1, he found one of the office clerical employees, Donna Cate, doing the assort-o-post work. She continued to do that work from the same location that he had done it in the parts department for the first 2 or 3 weeks in August. After that, she picked up the necessary data and took it into the cashier's office to work on it. After the strike, seven of the nine parts countermen were called back to work. Arend went back to the usual duties of a parts counterman and no longer worked on the assort- o-post. There was no impact on the number of hours he worked or the amount of money he earned. C. Respondent's Dealings with the Union about the Inventory Control Work At no time during the negotiations which led up to the 1969-1971 contract was the Respondent's inventory control system discussed. Respondent never notified the Union of its intention to transfer the assort-o-post assignment to nonunit - employees nor was the Union notified that the transfer was in fact made. The Union first became aware that an office clerical employee was doing the assort-o-post work when parts counterman Arend reported that fact to John Newell, the business manager and president of the Union, a few days after Arend returned to work on August 1. Newell went to Respon- dent's premises and verified the fact that the work was being done by an employee who was not a member of the unit. However, he took no further action until the second week in September, when he spoke to the girl who had been doing the assort-o-post work and told her that she would be required to join the Union now that her 30-day grace period had expired. He explained to her that she had to join because the work she was doing was part of the Union's work. The strike settlement agreement provided that all permanent new employees hired after June 1 had 30 days from August 1 to loin the Umon. The employee told him to see Stan Sandstad, Respondent's parts manager. Newell then spoke to Sandstad who told him that he couldn't do anything about making heroin or not join and that Newell would have to contact General Parts and Service Manager Leach. Leach, who was standing nearby, joined the conversation and said that he did not want the girl in the bargaining unit but that he was not sure of his position and that he would think it over and get advice. Newell told him that he would give him more time to come up with an answer. About 2 weeks later, Newell came to Leach's office and told him that a girl was doing parts inventory control work and that either she should be required to join the Union or a member of the bargaining umt should be put back on the inventory control desk. Leach replied that the Respon- dent's position was that the work was not part of the bargaining umt. 4 Hatfield testified that at this meeting Leake simply said that he would talk to Respondent's President Will about the grievances However, it was stipulated, and I find that at one meeting with Hatfield, Leake did make the statement set forth above 5 Hendricks testified that the inventory control work was not discussed In the last part of September or the early part of October, Newell told Louis Hatfield, the secretary-treasurer and executive officer of the Union, that he had talked to Sandstad and Leach and was unable to get the employee to sign the union application or to get management to agree that she should sign it. Hatfield authorized Newell to write a letter dated October 6, 1969, to Robert Q. Olsen, the management consultant who had represented the Associa- tion during the bargaining, which stated: The Union and Titus-Will Ford, Inc., after discussing the following matters find ourselves deadlocked on two issues pertaining to the labor agreement between the Tacoma Auto Dealer's Association and Local #461. Local #461 requests that Article Eight of the contract be invoked and we proceed to settle the dispute. We have two issues, one of which deals with discrimi- nation and the other with assignment of nonunion personnel to bargaining unit work and failure to comply with the terms of the contract. Your immediate attention to this is requested. Article VIII of the contract which is referred to in the letter sets forth a grievance procedure which ends with binding arbitration. On about October 20, William Leake , a management consultant who worked for Robert Nelson and Associates, came to the union office. At that time Leake was representing Respondent with regard to grievances that the Umon had raised. Leake met with Hatfield and three grievances were discussed, one related to a racial discrimi- nation allegation involving the rehire of an employee; another to the failure of Respondent to recall employees Maycumber and Hendricks, two of the strikers; and the third to the inventory control work being performed by an office employee. As to the last matter, Leake told Hatfield that Respondent was firm in its position that the inventory control work had at one time been done by office people, that the job the office girl was performing was not the same job that had been done by the parts people, and that the girl did not handle any parts but performed purely an office function.4 Leake said that Respondent would be unwilling to make a concession on this point. About a week later, Leake came back to the union office and told Hatfield that he had talked to Respondent's President Will, that there didn't seem to be anything he could do, and that he thought there should be a face-to- face meeting with Will. On October 30 or 31, the meeting took place between Leake, Hatfield, and Will on Respon- dent's premises. At this meeting, Hatfield brought up the three grievances again and Will remained firm on the question of inventory control work. During the discussion, either Leake or Will said that due to the lack of business and the lack of work Respondent had not recalled all the parts employees and Hatfield responded that if they returned the inventory control work to the bargaining unit, Respondent would be able to hire either Maycumber or Hendricks. Will said that it might be so if they did that.5 During this meeting, a fourth issue was raised when at that meeting except for his remark about rehiring Maycumber or Hendricks, and Will answered that it might be so However, it was stipulated and I find that all three grievances were brought up by the Union and Respondent remained firm on the inventory control question TITUS-WILL FORD SALES, INC. 151 Hatfield looked over Respondent's payroll records and concluded that an employee named Bellandi had been receiving 2 cents an hour less than the Union thought was due him . The meeting ended with Hatfield suggesting that the problem of the two parts employees could be resolved if they could sit down with the parts manager and work out personality problems. Leake agreed with Hatfield, and Will said that Leake didn 't know much about the business. Shortly after the meeting , Leake came to Hatfield's office and complained that Will didn 't follow his advice and that the matter should be settled but that he couldn 't do it. Hatfield wrote the following letter , dated November 3, to Leake: RE: Grievance Titus-Will (Maycumber-Hendricks) After several meetings with you and meeting with the Employer on this matter, we still have failed to reach a satisfactory agreement. We ask that the next step be followed in an attempt to settle grievance, that of meeting with a Joint Committee of the Dealers and the Union. However, if agreeable to your side , we are agreeable to waiving this step and proceeding direct to requesting the Federal Mediation and Conciliation Service to appoint an Arbiter to decide the issue. We are at your earliest convenience. A few days after the date of the letter , Leake met again with Hatfield and offered to give Bellandi the 2 cents an hour the Union was claiming if the Union would drop the other matters. Leake had been specifically authorized to make that offer by Will. Hatfield replied that Bellandi had the money coming to him anyway and he would not drop the other matters. Leake asked Hatfield to put his position in writing with respect to all the matters that had been discussed at the meeting with Will . As a result, Hatfield sent Leake the following letter dated November 7: RE: Grievance Titus-Will Maycumber-Hendricks, etc. Dear Sir: At your request that I put in writing the particulars concerning this grievance, I will comply, with the following conditions : 1. That this not be considered a full and final brief on these subjects. 2. The union' reserves the right to add, delete , amend or enlarge this grievance, both with the Dealer Committee and if, or when, taken to arbitration. 3. That this letter be understood to contain only in general terms the concern of the union. While investigating this problem with Titus-Will, several issues have been brought to the union's attention: 1. Discrimination : Jim Burnett, negro. The union requests that Jim Burnett receive full compensation in the amount equal to a normal 40-hour work week for the period of August 4, 1969 to September 29, 1969; September 29, 1969 being the date of his employment at Mallon Motors. 2. Removal of bargain unit work from Parts Department and assigned to non-union office person- nel. The union requests the work re-assigned back to the bargaining unit. 3. Improper rate of pay ($2.90) paid to pick-up and delivery man when proper rate of $2 .92 should have been paid. Union requests 2 cents per hour from approximately March 1 , 1969 to June 21, 1969 for Titus-Will employee M. J. Bellandi. 4. The union requests the employer comply with spirit and verbal understanding and written language in the strike settlement proposal and negotiated labor agreement-Tacoma Auto Dealers 1969 to 1972. The employer is discriminating and taking reprisals against Maycumber and Hendricks as opening occurs in Parts Department ; one opening having occurred and im- properly filled prior to November 1, 1969. The union requests that this be corrected and either Maycumber or Hendricks be hired effective November 1, 1969, and the next opening , the other be hired on date of opening. All of these- 1, 2, 3 and 4, have been discussed and have not been settled to the satisfaction of the union. On November 10, Hatfield received a call from Robert Q. Olsen, the management consultant who represented the Association during negotiations. Olsen said that he represented Respondent and was replacing Leake. Olsen also said that he could see no reason for having a staff meeting with a committee of dealers (an intermediate step in the grievance procedure set forth in article VIII of the contract) and that the only thing that would change Will's mind would be an arbitrator's decision. Olsen did not mention any grievance in particular . Hatfield then referred the matter to his attorney. On November 19, the charge which underlies the complaint in this case was filed. With regard to the fact that Respondent recalled only seven of the nine countermen after the strike , Respondent's records indicate, and Will's testimony establishes, that Respondent's business has been bad for the past year and that sales have been substantially off in the first 4 months in 1970 as compared with the first 4 months in 1969. Respondent's total employment dropped from 101 in May 1969 to 70 in May 1970. D. Analysis and Conclusions 1. The alleged refusal to bargain after the strike Paragraph 12 of the complaint alleges that, after the conclusion of the strike, the Union demanded bargaining and the Respondent refused to bargain in good faith over the assignment of the inventory control work. Within a few days of the conclusion of the strike on August 1 , the Union knew that the assort-o-post work which had previously been done by bargaining unit employee Arend was being done by an office clerical employee who was not a member of the unit. The Union made no demand of any kind until the second week in September. The demand at that time, which was made by Newell to Sandstad and Leach, was not that Respondent bargain with the Union about the assignment of the work in question, but was that the office clerical employee doing 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the work join the Union pursuant to the union-security clause of the contract. Newell gave Leach additional time to consider the matter. It was not until the end of September that Newell brought up the matter to Leach again. Then for the first time Newell demanded that a member of the bargaining unit be returned to the assort-o- post work in the event that the office clerical employee did not join the Union. Leach replied that Respondent's position was that the work in question was not part of the bargaining unit. In a letter dated October 6 to Respondent's management consultant, Olsen, Newell wrote that the parties had discussed two matters pertaining to the contract and found themselves deadlocked. The letter requested that article VIII of the contract be evoked and that they proceed to settle the dispute. Article VIII was a grievance procedure which provided for ultimate recourse to arbitration. One of the two issues mentioned in the letter was the assignment of nonunion personnel to bargaining unit work. Though the language of the letter, which used such terms as "discussing" and "deadlocked," implied the existence of an impasse, in fact negotiations were merely beginning. On October 20, William Leake, Respondent's manage- ment consultant, met with Union Secretary-Treasurer Hatfield and discussed various grievances, including the one relating to the inventory control work, and Leake said Respondent would be unwilling to make a concession on that point. Leake explained Respondent's position in detail, telling Hatfield that the inventory control work had at one time been done by the office people and, in effect, that the new inventory control work did not involve the handling of parts and was purely an office function that should be done by office clerical employees. A week later, Leake came back to Hatfield's office and suggested a meeting with Respondent's president, Will. The meeting with Will took place on October 30 or 31. The same matters were discussed and Respondent did not change its position. Shortly after the meeting between Will and Hatfield, Leake went to Hatfield's office and complained that Will didn't follow his advice. Leake said that the matter should be settled but that he couldn't do it. It may be unusual for an agent to advertise his disagreement with his principal but in the circumstances of this case it does not indicate bad faith on the part of the principal. I therefore attach no significance to it. By letter dated November 3, Hatfield notified Respon- dent of his willingness to waive the preliminary steps in the grievance procedure and to go to arbitration. The caption on that letter indicated that it had reference to the Maycumber-Hendricks grievance. There is some question therefore whether that letter had any reference to the inventory control work. However, in another letter from the Union dated November 7 which referred to "Maycum- ber-Hendricks, etc.," the grievance relating to the invento- ry control work was specifically set forth. Coming as it did between the October 30 or 31 meeting and the November 7 letter, both of which were concerned with the inventory control work, I believe that the November 3 letter also had reference to that matter. A few days after the November 3 letter, Leake, on behalf of Respondent, offered to settle all outstanding grievances by the payment to employee Bellandi of 2 cents an hour which the Union claimed was due him and which was the subject of one of the outstanding grievances. The offer was rejected by the Union. After a letter dated November 7 from the Union to Respondent outlining the outstanding issues between them, Respondent, through its agent Olsen, called Hatfield and told him that the only thing that would change Respondent's mind was an arbitrator's decision. On these facts, I am unable to find that Respondent unlawfully refused to bargain with the Union after the ternunation of the strike. Section 8(d) of the Act specifical- ly provides that the duty to bargain "does not compel either party to agree to a proposal or require the making of a concession." Respondent took a firm position against concessions on the question of inventory control work. However, Respondent did not close the channel of communication and its poststrike conduct viewed as a whole indicates that it was seriously trying to reach an agreement. The 2-cent-an-hour offer on Bellandi's griev- ance indicated at least some flexibility in Respondent's position. The matter was initially discussed among Newell, Sandstad, and Leach. When they could not resolve it, it was taken up at a higher level between Hatfield and Leake. After that, there were further discussions among Will, Leake, and Hatfield. Still after that, Leake made a counterproposal to Hatfield which was rejected. Finally, Olsen, on behalf of Respondent, in effect proposed arbitration. None of this conduct by Respondent indicates a desire to undermine the collective-bargaining principle or to avoid reaching agreement with the Union. From the time of the first meeting between Leach and Hatfield, Leach engaged in a reasoned discussion attempting to justify the Respondent's position with regard to the inventory control issue. As the United States Supreme Court stated in N.L.R.B. v. American Insurance Co., 343 U.S. 395 (1952): ". . . the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position." The General Counsel has shown that the Union was not satisfied with the results of the negotiations but he has not established by a preponderance of the evidence that the Respondent failed to make a good-faith effort to reach a solution or by its poststrike conduct violated Section 8(a)(5) of the Act. I shall therefore recommend that paragraph 12 of the complaint be dismissed. 2. The alleged refusal to bargain through the unilateral transfer of the inventory control work outside of the bargaining unit without notice to the Union In Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964), the United States Supreme Court held that the contracting out of work performed by employees in a bargaining unit was a mandatory subject of collective bargaining and such bargaining was part of an employer's obligation under Section 8(a)(5) and 8(d) of the Act to "confer in good faith with respect to wages, hours, and other terms and conditions of employment." The Court found that such an approach "would promote the fundamental purpose of the Act by bringing a problem of TITUS-WILL FORD SALES, INC. 153 vital concern to labor and management within the framework established by Congress as most conducive to industrial peace." The Board's view was set forth in Winn -Dixie Stores, Inc., 147 NLRB 788 enfd. as modified 361 F.2d 512 (C.A. 5, 1966), cert. denied 385 U.S. 935, where the Board held: An employer is under a duty to bargain with the chosen representative of his employees concerning matters affecting their wages, hours, and terms and conditions of employment and cannot unilaterally change estab- lished employment conditions without bargaining, regardless of the existence or nonexistence of a collective-bargaining agreement. Thus, in the instant case, the Respondent was not justified in completely disregarding that duty regardless of what may have appeared to it to be the economic desirability of terminating the cheese packaging operation . The Union had a statutory right to be notified in advance of the proposed action and to be given an opportunity , if it so desired, to consult and negotiate with the Respondent about the need for elimination of unit jobs and the possibility of alternative approaches that might avoid such action. In the Fibreboard case, the company's whole mainte- nance operation was contracted out and in the Winn-Dixie case the company abandoned an entire operation in its plant, but the Board has followed the logic of those decisions where the impact on the bargaining unit was substantially less and where the loss of unit jobs occurred through means other than contracting out. In Brotherhood of Locomotive Firemen and Enginemen, 168 NLRB 677, enfd. 419 F.2d 314 (C.A.D.C., 1969), the Board found that an employer violated the Act by unilaterally transferring bargaining unit work to its own employees who were outside of the bargaining unit. See also Wisconsin Contrac- tors, Inc., 183 NLRB No. 84. In Westinghouse Electric Corp., 150 NLRB 1574, the Board made it clear that one of the factors to be considered in determining whether a unilateral removal of bargaining unit work from the unit is a violation of the Act, is whether it results in a "significant impairment" of job tenure, employment security or reasonably anticipated work opportunities for employees in the bargaining unit. In Westinghouse, the Board found that the pro forma contracting of thousands of separate contracts in accordance with past practices had no demonstrably adverse impact on bargaining unit employ- ees. That factor was taken into consideration in dismissing the complaint . However, the Board has held that a substantial impact did exist where the amount of overtime in the bargaining unit would have been curtailed , Cities Service Oil Co., 158 NLRB 1204, and where there might be a loss of seniority for bargaining unit employees. Acme Industrial Products, Inc., 180 NLRB 114. In the instant case, the inventory control work was certainly peripheral to the main function of the parts countermen which was to sell parts. However, that inventory control work did occupy the time of one employee on almost a full time basis. As there were only nine parts countermen, that amount of work is by no means insubstantial. An employer can, under some circumstances, transfer work out of a bargaining unit without negotiating with the union when the employees in the bargaining unit are on strike. As the Board held in Empire Terminal Warehouse Co., 151 NLRB 1359, enfd. 355 F.2d 842 (C.A.D.C., 1966), an employer is not required to bargain over temporary subcontracting during a strike where that subcontracting does not go beyond reasonable measures needed to maintain operations during the strike. However, where an employer, during the course of the strike, decides to subcontract work which will permanently replace employ- ees in the bargaining unit, he is obligated to notify and bargain with the Union about that decision. Hawaii Meat Company, Limited, 139 NLRB 966, enf. denied 321 F.2d 397 (C.A. 5, 1963); Robert S. Abbott Publishing Company 139 NLRB , 1328, enf. denied 331 F.2d 209 (C.A. 7, 1964). Those Board decisions were denied enforcements by the Fifth and Seventh Circuits , but I am bound by the Board law. Though the cases cited above sketch in some of the guiding legal principles controlling the removal of work from a bargaining unit, the Board has made it clear that all the factors in a case must be considered and that it did not intend to lay down "a hard and fast new rule to be mechanically applied regardless of the situation involved." Westinghouse Electric Corp., supra. As the United States Supreme Court said in another context, "mechanical answers" do not solve "this nonmechanical, complex problem in labor management relations...." N.L.R.B. v. United Steelworkers of America, 357 U.S. 357 (1958). The Board has often dismissed complaints where the particular facts of a case led it to a conclusion that the mechanical application of the law would not be warranted. In Westinghouse Electric Corp., supra, the Board dismissed a complaint which alleged that the company had unilaterally subcontracted bargaining unit work, pointing out that such subcontracting was an established practice , that .there was no demonstrable adverse impact on the employees, and that the union had had an opportunity to bargain about changes in existing subcontracting practices in general negotiations. In New York Mirror, 151 NLRB 834, the Board found no violation where the company unilaterally eliminated all the jobs in the bargaining unit. In reaching this conclusion, the Board considered such matters as the pressing economic necessity of the closedown , the long and effective bargaining relationship between the company and the union and the fact that they subsequently bargained about such matters as severance and termination pay. In Central Rufina, 161 NLRB 696, the Board found that a mill's cessation of certain operations and contracting out of the work did not violate the Act even though there was a substantial impact on the bargaining unit employees, noting that the decision was based on mechanical difficulties at the mill and other factors that were "not `peculiarly suitable for resolution within the collective- bargaining framework.' " See also Lufkin Foundry and Machine Company, 181 NLRB No. 35 and Kennecott, 148 NLRB 1653 . All these cases are distinguishable from the one under consideration . However, they all indicate that the entire factual framework must be considered in order to arrive at a conclusion that is realistic and meaningful within the particular bargaining relations millieu of the case in question. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent removed work from the bargaining unit without notifying the Union or giving the Union a chance to bargain. However, in deciding whether such conduct violated Section 8(a)(5) of the Act, an evaluation must be made of the context in which the decision to remove the work was made. Respondent unilaterally changed its inventory control system from one in which the parts countermen located shortages by physically checking parts bins to one where a perpetual inventory was kept on the basis of the information contained on sales slips and order and receipt forms. The Union approves of this change and there is no allegation that that unilateral change was a violation of the Act. The inventory control work was taken away from all the parts countermen and a job, which in effect was that of a perpetual inventory clerk, was created and given to one of the men in the bargaining unit. The work was only given on a temporary basis, even though the Union had no reason to know it. The perpetual inventory clerk work had been done years before by an office clerical employee before that system was abandoned, and the new work of that nature was given to a member of the bargaining unit on a temporary basis because someone in the bargaining unit was needed to help set it up. It is a matter of speculation when, if ever, the work would have been taken out of the bargaining unit had it not been for the strike on June 23. At that point, Respondent had the right to unilaterally assign bargaining unit work to nonunit employees in order to continue its operations during the strike. The first allegation of wrongdoing contained in the complaint is that during the strike Respondent permanent- ly assigned the work out of the bargaining unit. Employee Arend, who had performed the perpetual inventory work before the strike, was not adversely affected by the loss of the work when he returned from the strike on August 1. His hours worked and amount earned were the same. However, it is reasonable to assume that if most of Arend's time were taken up with the assort-o-post system, there would have been more "parts countermen" work for the rest of the bargaining unit to do. The Union knew about August 3 that an office clerical employee was doing the assort-o-post work and it was not until the second week in September that it took any action. At that time, the Union demanded that the office clerical employee join the Union. Only after she refused to join and Respondent refused to make her join did the Union demand that a member of the bargaining unit be put back on that work. As I have found above, after the strike, Respondent did bargain in good faith and attempted to resolve its differences with the Union. Respondent and the Union have had a long history of collective bargaining which goes back to 1940. The present contract has a grievance procedure which provides for a final step of arbitration . Though the Board does not decline to assert jurisdiction in cases of this nature because of the existence of an arbitration clause, Brotherhood of Locomotive Firemen and Engmemen, supra, such a clause is part of the industrial relations picture which forms a background for this case. The Act requires that an employer acid the collective- bargaining representative of a majority of its employees in an appropriate unit bargain together in a good-faith attempt to resolve their disputes . Respondent and the Union are not neophytes when it comes to collective bargaining. The matter now in dispute between them, which relates to the removal from the bargaining unit of less than one man's work and involves a new job task that had temporarily been assigned to a bargaining unit employee, was handled by both the Union and the Respondent as a grievance. At one point, the Union even demanded that it be taken up under the grievance procedure of the contract. Respondent met on a number of occasions with the Union and bargained in a good-faith effort to resolve the dispute. Section 8(a)(5) of the Act seeks to encourage collective bargaining. Under all the circumstances of this case, I do not feel that any impediment to good -faith bargaining would be removed by the finding of a violation. In reaching this conclusion, I have taken into consideration the entire background of this case, including the long bargaining history of the parties ; the treatment by the parties of the matters in issue as a grievance and the availability of the grievance procedure with its provisions for arbitration ; the fact that the assort-o-post work involved bookkeeping and had at a prior time been done by nonunit employees ; the fact that the assignment of that work to the bargaining unit was done on a temporary basis; the fact that the assort-o-post work was merely ancillary to the sales function of the unit employees and that the removal of that work from the one employee in the unit who performed it had only a hmited impact on the unit; the fact that the initial transfer of the work in question was triggered by a strike in circumstances where Respondent could transfer work in order to continue operations ; and the fact that after the strike Respondent bargained in a good-faith effort to resolve the dispute. I do not believe that the General Counsel has established by a preponderance of the evidence that Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act, and I therefore shall recommend that the complaint be dismissed in its entirety. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent and the Association are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclu- sions, it is hereby recommended that the complaint be dismissed.