Frontier Dodge, Inc

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frontier Dodge, Inc and International Association of Machinists and Aerospace Workers, AFL- CIO, District Lodge No 115, Local Lodge 1528 Case 32-CA-4779 ' 9 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 September 1983 Administrative Law Judge Harold A Kennedy issued the attached deci sion The General Counsel filed exceptions and a supporting brief to which the Respondent filed an opposing brief The Respondent also filed cross ex ceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 1 and conclusions 2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Frontier Dodge Inc Modesto California its officers agents successors and assigns shall take the action set forth in the Order ' The General Counsel and the Respondent have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In dismissing the 8(a)(5) bad faith bargaining allegation the judge found relying on Continental Nut Co 195 NLRB 841 (1972) that the Union s conduct precluded a test of the Respondent s good faith Howev er in adopting the judge s finding that the Respondent did not violate Sec 8(a)(5) and (1) we find no evidence of bad faith bargaining on the Respondent s part irrespective of the Union s intentions or conduct at or away from the bargaining table Like the judge Chairman Dotson and Member Dennis find Mar Len Cabinets 243 NLRB 523 (1979) chstin guishable Member Hunter however does not find Mar Len Cabinets chs tinguishable from the Instant case and would overrule Mar Len Cabinets to the extent it Indicates that insistence on the elimination of a union se curity clause without more evidences an intent to bargain in bad faith We also find it unnecessary to rely on the judge s discussion of Atlas Metal Parts Co v NLRB 660 F 2d 304 (7th Cir 1981) Also in his ex ceptions the General Counsel contends that the judge in dismissing the bad faith bargaining allegations failed to consider the Respondent s over all conduct particularly the various statements found by the judge to be 8(a)(1) violations As we find no evidence that the Respondent failed to bargain in good faith we find no basis for concluding on the strength alone of the Respondent s statements away from the bargaining table that otherwise lawful conduct was converted into a violation of Sec 8(a)(5) and (1) Baldwin County Electric Membership Corp 145 NLRB 1316 (1964) Finally at par 4 under the section of the decision entitled Con elusions of Law the judge inadvertently stated that the Respondent had acted in violation of Sec 8(b)(1) rather than Sec 8(a)(1) of the Act DECISION j STATEMENT OF THE CASE HAROLD A KENNEDY Administrative Law Judge The International Association of Machinists and Aero space Workers AFL-CIO District Lodge No 115 Local Lodge No 1528 (Local 1528 or as the Union) filed charges on August 17 and September 3 1982 1 As a result of the charges the Regional Director for Region 32 of the National Labor Relations Board issued a corn plaint on November 12 charging Frontier Dodge Inc currently d/b/a Fireside Dodge with violating Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) 2 The main charge is that Respondent refused to bargain in good faith making and adhering to regres sive bargaining proposals Additionally Respondent is alleged to have caused and prolonged an unfair labor practice strike Violations of Section 8(a)(1) are also al leged The trial of the case took place in Modesto Cali forma on Apnl 5 and 6 1983 A Undisputed Matters Respondent in its answer admits that it meets the Board s applicable discretionary jurisdictional standard and is an employer within the meaning of Section 2(6) and (7) of the Act The answer admits that Respondent is a California corporation engaged in the retail sale and service of motor vehicles at its place of business in Mo desto California Respondent grossed in excess of $500 000 during the 12 months preceding issuance of the complaint During the same period Respondent pur chased and received from out of state goods or services valued in excess of $5000 Respondent also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act I therefore find that it will effec tuate the policies of the Act for the Board to assert its jurisdiction herein Additionally Respondent admits and I find that Keven Sosinsky Respondent s executive vice president and Norris Jones Respondent s service manager were at all material times supervisors and agents within the meaning of Section 2(11) and (13) of the Act and that David Strimling and August Sommerfeld collective bar gaining representatives from Sequoia Employer s Coun cil were at all material times agents of Respondent within the meaning of Section 2(13) of the Act The complaint does not refer to the original charge of August 17 1982 Frontier Dodge Inc has operated under different trade names but has existed as a corporate entity at least since 1979 It is not disputed that Kevin Sosinsky who became the executive vice president and general manager in January 1981 and later its president and Jim Brooks now own all of its stock Sosinsky testified Bill Hughes Dodge is who Joaquin Enterprises bought the Dodge agency from back in 1979 I believe the corporation has always been the same the corporation is Frontier Dodge Inc and It was Fron tier Dodge Inc d/b/a Bill Hughes Dodge and then Joaquin Enter prises bought it and it was Frontier Dodge and then I bought it and it became Frontier Dodge Inc d/b/a Fireside Dodge Changes in the transcript requested by the General Counsel and not objected to by either Respondent or the Charging Party are noted and made 272 NLRB No 114 FRONTIER DODGE 723 It is also undisputed that since about 1949 Respondent has recognized the Union as the exclusive collective bar gaining representative for an appropriate unit described as follows All mechanics frame and/or front end machine men auto electricians parts department employees lubricators used car lot and parts pick up employ ees employed at Respondent s Modesto California facility excluding all other employees guards and supervisors as defined in the Act 3 Respondent has entered into a series of collective bar gaining agreements with the Union over the years the most recent being for the period July 1 1979 through July 1 1982 Respondent was owned by Bill Hughes at the time the last agreement was executed In 1979 Joa gum Enterprises purchased Respondent and in January 1981 Joaquin Enterprises sold a 10 percent interest in Re spondent to Kevin Sosinsky and his wife 4 Sosmsky became the executive vice president and general manager of Respondent in January 1981 and unlike the other principals of Joaquin Enterprises became involved in the day to day operation of the Company Prior to acquiring the 10 percent share (with his wife) Sosinsky was an em ployee of Chrysler Corporation and had no interest in Respondent During the time period material relevant to the proceeding—from April to September 1982—So sinsky continued to be a 10 percent owner (with his wife) and an officer of Respondent Joaquin Enterprises was the other owner of Respondent Brett Speers was the majority stockholder and president of Joaquin Enter prises In August 1982 Joaquin Enterprises filed for bank ruptcy and in January 1983 the sale of Joaquin Enter prises 90 percent Interest in Respondent to Sosinsky and Jim Brooks was approved After Sosinsky and Brooks acquired the stock of Respondent Sosinsky was named president Although the corporate entity has remained the same Respondent changed its trade name from Frontier Dodge to Fireside Dodge in January 1983 There is no successorship issue in the case and Re spondent does not deny responsibility for any unfair labor practices that may have occurred during the rele vant time period April to September 1982 5 B Contested Allegations k. 1 The alleged failure to bargain The complaint alleges Respondent refused to bargain in good faith in violation of Section 8(a)(1) and (5) Spe cifically paragraph 11 alleges (a) From about April 21 through September 15 Re spondent made regressive bargaining proposals includ 3 Kevin Sosinsky who was executive vice president and general man ager at the time testified that in April 1982 Respondent had around 25 or 30 employees Approximately 12 or 14 of such employees worked in the service and parts departments and belonged to the bargaining unit 4 A purchase agreement dated January 2 1981 and in evidence as R Exh 1 gave Sosinsky and his wife the right to buy additional shares He testified he would not have bought the original 10 percent share if he could not buy the remaining 90 percent of Frontier s stock All dates used herein are for the calendar year 1982 unless otherwise stated mg inter aim elimination of the union security clause in favor of an open shop and a more limited senionty system (b) Respondent proffered the proposals described in subparagraphs 11(a) without tendering any legitimate jus tification in support of such regressive modifications of the employees working conditions and adhered to said proposals for the duration of the bargaining 6 Paragraph 12 avers that the acts and conduct of Re spondent alleged in paragraph 11 in the context of the acts and conduct described above in paragraph 6 con stituted failure to bargain in good faith with the Union Finally the complaint alleges that the strike against Re spondent was caused and has been prolonged by the unfair labor practices of Respondent described above in paragraphs 6 11 and 12 The Charging Party Union wrote two letters to Re spondent in April The first (R Exh 2) dated April 5 requested a meeting with Respondent for the purpose of negotiating a new collective bargaining agreement to re place the one that was due to expire on July 1 The second letter (R Exh 3) dated April 14 also recited the expiration date of the collective bargaining agreement and requested a meeting with Respondent no later than May 14 The parties stipulated that bargaining sessions were held on the following dates April 23 May 3 6 12 and 24 June 2 9 and 30 July 12 and 21 and September 15 The Union s principal spokesman during the negotia lions was Business Agent Robert Elsholz He was assist ed during the negotiations by Shop Steward Bruce Olson a partsman in the employ of Respondent Re spondent was represented by David Stnmling and August (Auggie) Sommerfeld employees of Sequoia Em ployers Council (SEC) which had been retained by Frontier Dodge Executive Vice President Sosmsky in April 7 Herbert Thorne a mediator in the employ of the State of California attended the June 9 bargaining ses sion and subsequent meetings The first bargaining session was short and took place at Respondent s place of business in Sosinsky s office with him in attendance All subsequent meetings with the possible exception of the last one 8 were held at the Sundale Motor Lodge Unit membership meetings were held at the union hall on June 30 and July 22 At the June 30 meeting the membership voted to reject a corn pany sponsored flat rate system for mechanics but voted nevertheless not to strike A bargaining session v as held in the evening of June 30 (the second one that day) following the membership meeting at the union hall and a number of employees attended along with Union Representatives Elsholz and Olson and company repre sentatives Strimling and Sommerfeld Thereafter the em 6 Par 11(c) of the complaint alleges direct dealing with employees in violation of Sec 8(a)(1) and (5) Counsel for the General Counsel con cedes in his brief that there is no evidence to support this allegation and it is accordingly being dismissed 7 Elsholz testified It wasn t really established who would talk for them but David Stnmling was the main spokesman 8 Strimling indicated that the September 15 meeting took place at a place called the Western House presumably a place different from Sundale 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees decided to try the flat rate system and the par ties thereafter resumed negotiations (on July 12) 9 The membership did vote to go on strike (6 to 1) later at the July 22 membership meeting Some employees went on strike and others did not 10 The strike was still in progress at the time of the trial The Union presented its proposal (in evidence as G C Exh 3 and in the form of a one page document) at the first bargaining session recommending 1 New Holidays language 2 New Sick Leave language 3 IAM Dental Plan 4 IAM Vision Care Plan 5 Increased Pension Plan contribution 6 Cost of Living adjustments 7 Payroll dates (for Parts Department Employ ees) 8 Increase in wages (50 cents per hour in each of the next succeeding years) The Union s proposal was discussed at the first two or three bargaining sessions The Company presented its proposal (in evidence as G C Exh 4) either at the May 6 or May 12 meeting 11 The Company s proposal served primarily as the basis of all discussions that followed after it was presented 12 By July 12 the parties had agreed on nearly all sub jects except union security and the flat rate system which subjects were discussed at virtually every bargain ing session 13 The principal witness for the General Counsel was Robert Elsholz the Union s chief spokesman during the 1982 negotiations David Stnmling chief spokesman for the Company was the principal defense witness A sum mary of their testimony follows 14 Elsholz sad he was stunned at a 11 to 1 no strike vote on June 30 as the membership had voted 12 to none at the same meeting to reject the flat rate plan which the Company had proposed for mechanics It put him in kind of a bind because it was up to the company whether they wanted to keep the negotiating or not Elsholz said He got in touch with the Union s Grand Lodge vice president in Long Beach and was told to try to get back into negotiations Elsholz went on to say that it came back through the shop not by me that people were willing to try the flat rate system A nonstriking employee Ted Jackson who attended the June 30 mem bership meeting and the bargaining session the same evening agreed that employees had voted both against the Company s proposal and a strike He also stated that the employees decided to give the flat rate system a trial No vote was taken he said It was just an agreement mouth to mouth I ° Norris Jones Respondent s service manager testified that three or four employees did not go on strike and that he hired about three men as replacements within 3 or 4 days after the strike began Elsholz thought the Company presented its proposal on May 6 but the Company s negotiator Stnmling thought the Company s proposal was not presented until May 12 12 The copy of G C Exh 4 in evidence was Elsholz copy and the written notations thereon (e g no ok open ) are his 2 The Union s bargaining representative maintained that no seniority provision was ever agreed to but I find otherwise relying on the more credible testimony of Dave Stnmling the Company s negotiator 14 The General Counsel also called Shop Steward Olson and three other employees of Respondent Wilburn Lee Dorman Roy Wayne Nightengale and Leroy Robertson Jr The testimony of Dorman Night engale and Robertson dealt primarily with the 8(a)(1) charges Respond ent called General Manager Kevin Sosinsky Service Manager Jones James Mattison (an insurance representative) the Company s two negoti According to Robert Elsholz the (first) April 23 bar gaining session was held at Respondent s place of busi ness and was attended by Shop Steward Bruce Olson General Manager Kevin Sosinsky Service Manager Norris Jones and the Company s two bargaining repre sentatives from Sequoia Employers Council August Sommerfeld and Dave Stnmling The meeting which was held in Sosinsky s office was a short haphazard one with a lot of phone calls and other interruptions It was decided that all later meetings would be held else where and they were—at the Sundale Motor Lodge El sholz presented at the first meeting the Union s proposal (G C Exh 3) which the parties read through and briefly discussed Sommerfeld according to Elsholz was ada mantly opposed to a union security clause Sommerfeld said he was also against the hourly rate of pay and inch cated he would propose a flat rate or piecework rate El sholz said he responded that there would be some prob lems in negotiations if Sommerfeld were to propose elimination of the union security clause The same group except for Sosinsky met next on May 3 and again reviewed the Union s proposal With Stnmling speaking for the Company Elsholz stated that the Company said no to every part of the [Union s] pro posal Sommerfeld stated that at that time he felt for the betterment of the people and everything else that it should be an open shop Elsholz said his response was that we weren t even going to discuss the union secun ty clause Elsholz stated that the flat rate of pay was discussed at the second bargaining session as well as at the first and every meeting Elsholz said he did not initially totally understand the Company s wage flat rate pro posal which was to apply only to mechanics but he thought it involved the use of three different rate books as follows [T]hey have a rate for new cars they have a rate for motor homes and heavy vehicles and they have a rate for regular service work so there are three different rates you go by Elsholz said he asked the Company to present a formal ized proposal and it did so at the next bargaining ses mon held on May 6 in the form of a seven page draft of a complete Agreement which had attached to it a check off authorization form and a one page Schedule A listing various classifications and rates of pay Elsholz said he readily agreed to the minimum wage scale language (art III) and the apprentices provision (art IV) on May 6 He thought agreement was reached on vacations (art VI with the Company paying under its flat rate system so much per hour ) but something further in writing was to be furnished by the Company Elsholz was uncertain about what was said about sick leave (art VII) but he said it was not approved ating representatives Strimling and Sommerfeld and two employees Ted Jackson and Donovan Higginbotham The General Counsel recalled Olson as a rebuttal witness and Respondent recalled Sommerfeld as a surrebuttal witness FRONTIER DODGE 725 Elsholz testified that union security seniority and flat rate were discussed on this occasion The biggest prob lem with regard to the flat rate system Elshoz said was that the parties never could come to any kind of agree ment what books they were going to take the flat rate out of Norns Jones maintained for the Company that big bucks could be made Elsholz said but the Union s position was in opposition to it As for union security Elsholz stated No the union security clause was never brought up by the Union until after Auggie Sommerfeld said he was adamantly against the union security clause His feelings were the people in the shop should have the choice Elshoz agreed that the company representatives made other proposals— I think it was agency shop and some other proposal which I did not know about Elsholz said nothing was ever written up to show him the differ ence between what the Company was proposing and what was in effect Said Elsholz The 38 contracts I service in this area we have a union security clause we do not have any other kind Elsholz said the Company wanted an open seniority clause one that would keep the employees on proba tion from day 1 He agreed that Strimlmg asked for some contract language and the Union later provided it he said Elsholz said he agreed to State Mediator Herbert Thorne meeting with the parties in June on June 9 he thought because we weren t getting anywhere As he recalled the meeting only old proposals were reviewed At the June 30 morning meeting as Elshoz recalled it the Company was maintaining that the Union had agreed to a lot of' the Company s proposal and asked for fur ther review of the Company s proposed contract Elsholz said he then brought up the subject of union security and asked Are you going to come through with this are you going to stay with where you were at before and they said we are going to stay where we were at no union security The main concern at that time Elsholz said he was clarifying seniority He was not sure but Elshoz thought the Union had presented its seniority proposal (G C Exh 5) much earlier on June 9 he thought We made some changes in seniority proposals but they never did 0 K them Elsholz said 15 Elsholz testified concerning the June 30 unit meeting held at the union hall at which he reported to employees on the status of negotiations and advised what the Corn pany was proposing He said he was stunned that the membership rejected the Company s proposal that day following lengthy discussion of the flat rate system but also voted not to strike Elsholz said he got in touch 15 I credit Strimling s more credible testimony that the Union s propos al on seniority G C Exh 5 was not presented until later and that the parties did ultimately agree as indicated on the Union s proposal itself as modified in Elsholz hand Elsholz testimony is equivocal and inconsist ent His affidavit indicates he submitted G C Exh 5 on July 21 with his Grand Lodge vice president in Long Beach and then got the Company back into negotiations The word was passed to the Company but not by him that the em ployees were willing to try the flat rate system Elsholz stated that he told company representatives at a later meeting presumably on July 12 in response to their inquiry what it would take to get a contract signed as follows [T]here were quite a few things we had to sort out and one of them was the union security clause the sernonty clause and the flat rate of pay was the big hang up with the people the flat rate The Company would not yield to union security clause he said It was kind of mutually agreed that we were at a stalemate when the parties met again on July 21 El sholz said He acknowledged that the Company made a counterproposal on union security however He testi fled I think they discussed an agency shop and I told them I didn t really understand that and they ex plamed what an agency shop was and I told them at that time that I wouldn t recommend it to the people Vacation pay was again discussed with Stnmling saying then the Company would raise the sit down pay to $7 Seniority was discussed but he denied any agreement was reached Following the July 21 meeting Elshoz met with the unit membership and explained status of negotiations as to the flat rate of pay (noting that the Company had raised the sit down pay and offered a little bit more on motor homes) union security seniority and generally highlighted the Company s proposed contract The unit voted 7 to none to reject the Company s proposed contract and voted 6 to 1 to strike which began the fol lowing morning The September 15 bargaining session was set up after a phone conversation took place between Elsholz and Stnmling According to Elsholz Stnmling agreed to come to the meeting but indicated no agreement would be reached because a decertification election had been scheduled At the meeting itself seniority and union secu nty were discussed but no agreement was reached on either issue Elsholz was asked if employees might accept the flat rate system and Elshoz replied that the mechan les could not live with it the way it was 16 6 Elsholz impressed me as an uncertain and at times equivocal and inconsistent witness On cross examination he agreed that there had been agreement on the recognition clause and on other topics He was uncer tam as to when subjects were discussed and when agreements were reached He said he thought there had been no agreement on no strike no lock out provision He had no recollection of the sick leave discus sion Surprisingly Elsholz claimed there had been no discussion at the bargaining table about Respondent s financial condition or its desire to improve efficiency He agreed that different types of union secunty pro visions were proposed and that none was acceptable to the Union He also agreed that you could say that he tried to get Sosinsky to term' Continued 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dave Strunhng who identified himself as a labor rela lions representative testified that he met with General Manager Sosinsky three or so times prior to the start of negotiations on April 23 Subjects discussed included the Company s financial condition and what proposals the Company would want to make Stnmling agreed that the first bargaining session was brief and that the Union s proposal was discussed El sholz stated at the start of the meeting according to Stnmling that he supposed we were going to propose an open shop Sommerfeld responded yes and I sup pose you are going to propose a closed shop Elsholz indicated he would not consider an open shop according to Stnmling Strimling denied that Sommerfeld indicated at the first meeting or at any other time that he was adamantly or totally opposed to a union security clause Strimling said he never uses the word adamant ly or a word similar to it (Sommerfeld later testified under cross examination that he had a personal convic tion against compulsory unionism ) Strimling said he ex planted at the first meeting that the Company had lost a lot of money ( around $800 000 ) and that the Company was thinking about cut backs and/or ways of making money rather than raising our costs We talked about possibly going on an incentive flat rate system for me chanics and the need for more productivity Strimling said Strimling stated that the Company agreed to the Union s proposed language for holidays (Item 1) and in dicated there would be no problem on Item 7 (change of paydays for the parts department) although the book keeper would need to be consulted However no agree ments were reached as to Items 2 3 4 5 or 6 (sick leave dental vision care pension and cost of living ad justment) as they involved cost factors On May 3 according to Stnmling the parties met and discussed the Company s economic conditions and all items involving cost factors—health and welfare dental visual and pensions Agreement on holiday language was reaffirmed and an agreement was reached on sick leave (Item 2 with the Company not having to pay when workmen s compensation and disability insurance program did) The Company indicated it would propose new plans for dental visual and health and welfare but the Union wanted to keep JAM coverages The Compa fly suggested an IRA type of plan on pensions and dele ton of the cost of living factor The Company s new flat rate system was referred to and explained as follows [T]he books have a time alloted III just use an ex ample a particular job is three hours and if the man can do it for two and a half he is paid for two and a half hours and still has half an hour to do an other job so theoretically at the end of the day he could produce ten hours a day and that the work would be better quality because of comebacks they would have to do a better job watch their work much better take more pride in their work and therefore it would be less burden on the company nate the services of his bargaining representative SEC He said he went to the Company s office and told Sosinsky that you don t want a stnke and we don t want a strike and we could come to an agreement both of us could agree to and live with and that if it did come back they would have to repair it again The Union asked about pay for employees when there was no work and the company side responded that it would look into it Deletion of old language having no application any longer was proposed by the Compa fly but opposed by the Union Union security was brought up again at the May 6 meeting and Elsholz again said it was unacceptable Sommerfeld asked if the Union would consider a clause similar to what Lockheed Aircraft had at one time whereby Those that were members upon signing of the agreement or that those subsequently become mem bers stay a member and those that weren t didn t have to be Elsholz said he would not consider it Elsholz also stated that the flat rate system was not acceptable to the Union Company representatives distributed a new health plan (Plan 6d R Exh 11) which they proposed The Union put the health plan on hold The Union also put the Company s proposed IRA plan on hold with the Union asking that the Company contribute more than the $30 a month it had been offering The Company also proposed deletion of the cost of living proposal at the May 6 meeting The flat rate system was discussed fur ther as Mr Elshoz didn t know how it worked [where as] Mr Olson did The Company agreed to review its flat rate system on the basis that a book used in perform ing certain work (e g warranty work on motor homes) did not allow sufficient time The Company also agreed to modify its flat rate proposal so as to include a mini mum guaranteed wage of $6 70 per hour Stnmhng said the Company presented its written pro posal (G C Exh 4) on May 12 and certain agreements were reached Stnmling stated that agreements were reached on article I section 2(b) under recognition arti cle II hours of work for certain jobs article III mini mum wage scale article IV apprentices article V holi days (already agreed to although Saturdays had been in advertently omitted from G C Exh 4) article VI vaca tons article XII stewards and article XIII special re quirements Stnmling stated that other articles were dis cussed but were not agreed upon as follows article VII health and welfare and sick leave article IX dental arti cle X vision care and article XI pension In testifying concerning this meeting Strimling indicated that other articles were discussed and agreed to later on including article VIII bereavement leave (grandfather and grand mother added as being in immediate family with 3 addi tional days without pay being given by the Company al though the Union wanted to go from 3 paid days to 8) article IV no strike no lockout article XV grievances (with plaintiff' being given the right to pick an arbitra tor from a panel of three rather than the employer having the right to designate the arbitrator) The flat rate system was discussed again on May 12 with the Company indicating that it should stick more money into it on the basis that work on motor homes FRONTIER DODGE 727 could take more time than what the book called for 17 The Company proposed the $6 70 minimum rate but of fered no change in wages for nonmechanics Stnmling testified that James Mattison attended the next bargaining session held on May 24 and explained the details of the Company s proposed health plan After hearing the presentation the Union agreed to accept it over its own health plan 18 Stnmling testified that he suggested at the May 24 meeting that a state mediator attend the next bargaining session and help us iron out some of these things El sholz said he saw no need for it however according to Strimling When the parties met again on June 2 Elsholz com mented that the Company s health plan looked better than what the Union had proposed Elsholz also indicat ed that the IRA pension plan would be all right but he wanted a bigger contribution from the Company The Company offered to increase the amount of money (50 cents per hour to $9 75) to pay for work on motor homes and raised the guaranteed wages from $6 70 to $680 Stnmling said he brought up the union security at the June 2 meeting (as he said he did at every bargaining ses mon) but Elsholz stated that anything other than a union security clause is a no no his exact words were no no Maintenance of membership was brought up and rejected Stnmling also asked if the Union would consider a plan whereby the Union would have a vol untary meeting on company time to solicit membership but Elsholz would not consider it according to Striml ing State Conciliator [sic] Herbert Thorne met with the parties at the June 9 meeting by agreement of the parties Strimling offered at that meeting for the Company to pay vacation pay to current employees at their present rate of pay and $6 80 an hour to new employees El sholz agreed to the former but raised the issue again three or four more times until reminded (even by Shop Steward Olson) that it had been settled According to Strimling Elsholz wanted an impasse declared on union security but later agreed to discuss other issues Elsholz agreed to present a proposal on seniority at the next meeting Agreement was reached on a no strike clause and on pensions with the Company paying more money The parties met in the morning of June 30 and at the Union s request again in the evening (when several members of the bargaining unit appeared and asked ques tions) At the July 12 bargaining session seniority was dis cussed but without any agreement being reached The Union failed to present any proposal on seniority The issue of missing tools was clarified On July 21 the parties met in the last bargaining ses sion before employees went on strike Elsholz made a 1 " Strimling maintained that Olson was familiar with the manuals in use under the fiat rate system Stnmling said warranty work was done according to the Chrysler manual The Mitchell manual was to be used predominantly however 8 Mattison an employee of the J D King Corporation and administra tor of the Western Employers Trust Fund appeared and testified as a witness for Respondent proposal with respect to the flat rate system and Som merfeld made a counterproposal ($11 an hour for war ranty work $10 an hour on motor homes and a $7 hourly guarantee) Stnmling testified that the parties agreed to implement the flat rate system at the July 21 meeting Stnmling said he stated that it was the Compa ny s understanding that the wages and classifications here were minimum and that the Employer could pay over or they could receive more money as long as they got their minimum their wages Elsholz agreed saying He didn t care what they did as long as they got their minimum for their time that they made their time for the day or the week Elsholz presented the Union s propos al on seniority and it was agreed to in principle—with modifications even though not reduced in writing (G C Exh 5) With respect to union security the Company of fered to give the Union 1 hour s time to solicit member ship Elsholz said he would not consider it according to Strimling and offered no alternative The last bargaining session was held on September 15 with Stnmling Sommerfeld Bob Lee ( from our asso elation ) Elsholz Olson Bill Lopez a gentleman named Crawford and Thorne in attendance Everything had been agreed upon by that time he said except union security clause or lack of it flat rate system the amount of money for the flat rate system the amount of the guarantee and an hourly wage for a lube man 19 The Union presented a letter dated September 14 (R Exh 14) captioned FINAL PROPOSAL and stating RE NEW COLLECTIVE BARGAINING AGREEMENT THAT WAS IN EFFECT JUNE 30 1982 IN ITS ENTIRETY COLLECTIVE BARGAINING AGREEMENT TO BE OPEN JULY 1 1983 FOR WAGES ONLY COLLECTIVE BARGAINING AGREEMENT TO OPEN JULY 1 1984 FOR WAGES ONLY Stnmling inquired if everything agreed to during the ne gotiations was out and Elsholz replied No no ev erything we have agreed on is fine It was not ex plamed however according to Strimling how the agree ments already reached would be included in such final proposal The Union caucused for over half an hour at the end of which Lopez stated that it was over with we were finished Stnmling said he stated at the meet ing it might be improper to consummate anything any agreement at this time because of representation ques tions but we would be happy to consider anything and come to an agreement on it On cross examination Strimling agreed that Elsholz was cooperative and an able negotiator Strimimg also testified on cross examination that he explained during negotiations why the Company was proposing an alter native to the union secunty clause He asserted that such a provision interfered with hiring of qualified people and 18 Apparently the length of the contract was never agreed on Strunl mg said the Company wanted a 1 year contract and the Union wanted one covering a 3 year period 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that many employees did not wish to maintain member ship in the Union Also Sostnsky believed in employees having a free choice as to whether they should join a union or not 20 Strimling disagreed with the Union s contention that the Company was proposing to keep em ployees on endless probation by proposing deletion of 60 days from the provision dealing with judging of employees qualifications (art I sec 3) According to Stnmling the provision only came into play if there was a reduction in force and seniority began from day one With respect to the last bargaining session held on September 15 Stnmling reaffirmed that he understood that Elsholz in presenting the Union s final offer meant that anything already agreed upon would be given effect Stnmling denied that he would have refused to sign an agreement on September 15 because of the pendency of a decertification petition He indicated that the Company would have executed an agreement if the parties had reached an agreement even though he had admittedly told Elsholz that it may not be proper to do so and could be set aside With respect to the bad faith bargaining charge the General Counsel states General Counsel s theory is that a coalescence of many factors produced a violation in this case Re spondent s insistence upon an open shop without good and stated reasons its regressive proposals in wages and fringe benefits seniority and selection of an arbitrator its insistence upon its own health dental vision and dental plans and all of this in contrast with the Union s concessions including the detested flat rate system within the context of So sinsky s pre and post bargaining violations of Sec tion 8(a)(1) revealing strong anti union views all warrant a conclusion that Respondent embarked from the beginning upon a course of conduct which would frustrate bargaining and cause a strike 21 Such recital does not comport with my view of the relevant credible facts that can be gleaned from the record or my opinion of the legal consequences of Re spondent s conduct 20 Sosinsky testified that he had met with SEC representatives before negotiations began and that among his major concerns were employees being able to remain neutral with respect to union membership and holding the line on costs because of the extremely poor financial condi ton of the Company His position on union security grew out of his ex perience as a brewery worker As for the Company s financial condition he said Frontier Dodge lost $698 000 in 1980—more than any other Dodge dealer in the United States Under questioning of union counsel Sosinsky acknowledged that two accounting systems had been set up one for Kevin Sosinsky Dodge and another for Frontier Dodge whereby the latter would be held responsible for carrying over bad debts repos sessions this kind of thing Nevertheless I have no doubt about the fact that Respondent continued to be in a serious financial condition when it commenced negotiations in 1982 Sosmsky explained how he thought the flat rate system of compensation for mechanics would improve the Corn pany s financial condition Sosmsky said he appeared at the first and the June 30 bargaining set mons and did so each time only to give support to Sequoia 2 Speaking to this aspect of the case at the trial the General Coun sel s attorney suggested that the illegality lay in the Employer s clinging to its proposed change in the status quo with respect to union security especially in light of the amount of movement that was coming from the Union s side Section 8(d) of the Act defines the duty to bargain col lectively as the mutual obligation to meet at rea sonable times and confer in good faith with respect to wages hours and other terms and conditions of employ ment or the negotiation of an agreement Such obligation does not compel either party to agree to the proposal or to make a concession NLRB v American In surance Co 343 U S 395 (1952) The essential element in the bargaining principle is the serious intent of the par ties to reach a common ground Romo Paper Products Corp 220 NLRB 519 (1975) A determination of whether a respondent has met the good faith bargaining standard requires consideration of the totality of respondent s conduct MR & R Trucking Co 178 NLRB 167 (1969) enfd in part 434 F 2d 689 (5th Cir 1970) NLRB v Insurance Agents 361 U S 477 (1960) Quoting from the court s decision in NLRB v Al terman Transport Lines 587 F 2c1 212 221 (5th Cir 1979) As we have observed before probably in few other instances is the task of judging so difficult than determining whether a party has fulfilled its duty to enter into discussions with an open and fair mind and a sincere purpose to find a basis of agreement The truth is that objective stand ards are generally either unavailable or unavailing And conduct done at one time judicially ascertained to manifest good faith may under other circum stances be a mere pretense NLRB v Herman Sau sage Co 5 Cir 1960 275 F 2d 229 231 The Supreme Court in American Insurance supra re jected (as did the U S Court of Appeals for the Fifth Circuit) the position of the Board that the employer in the case had committed a per se violation by seeking to bargain for a management functions clause ( listing mat ters such as promotions discipline and work scheduling as the responsibility of management and excluding such matters from arbitrations ) The Court noted that the Board considered such a clause a condition of employ ment and that it had found illegal an employer s effort to bargain for such a clause for the duration of a con tract although the Board would permit an employer to propose such a clause The Court rejected the Board s reasoning Noting that the Act does not compel any agreement whatsoever but imposes on labor and man agement the mutual obligation to bargain collectively (emphasis added) the Court stated But the Board would forbid bargaining for any such clause when the Union declines to accept the pro posal even where the clause is offered as a counter proposal to a Union demand for unlimited arbitra tion Ignoring the nature of the Union s demand in this case the Board takes the position that employ ers subject to the Act must agree to include in any labor agreement provisions establishing fixed stand ards for work schedules or any other condition of employment An employer would be permitted to bargain as to the content of the standard so long as he agrees to freeze a standard into a contract Bar gaining for more flexible treatment of such matters FRONTIER DODGE 729 would be denied employers even though the result may be contrary to common collective bargaining practice in the industry The Board was not em powered so to disrupt collective bargaining prac tices [343 U S 395 408] In NLRB v Borg Warner 356 U S 342 (1958) the Su preme Court made it clear that parties may bargain over permissive subjects if they wish but the Act does not re quire them to do so Mandatory subjects are a different matter however Reading Sections 8(a)(5) and 8(d) to gether the Court said [T]hese provisions establish the - obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to wages hours and other terms and conditions of employment The duty is limited to those subjects and within that area neither party is legally obligated to yield Labor Board v American Insur ance Co 343 U S 395 As to other matters howev er each party is free to bargain or not to bargain and to agree or not to agree [346 U S at 349 1 In H K Porter Co v NLRB 397 U S 99 (1970) the Supreme Court held that the Board did not have the power to order an employer to agree to a union s pro posal calling for a union dues checkoff—even though the employer had violated the Act by repeatedly refusing to bargain in good faith on the checkoff issue The compa ny s refusal to bargain on the issue was based solely on the ground that the company was not going to aid and comfort the union The court of appeals had upheld the Board s order directing the employer to agree to the checkoff clause on the basis that it may be the only means of assuring [the employer] no longer harbors an illegal intent (389 F 2d 295 at 299 (D C Cir 1967)) The Supreme Court reversed After discussing the 1947 amendment to Section 8(d) of the Act (which added the words but such obligation does not compel either party to agree to a proposal or require the making of a conces sion ) the Supreme Court stated It is implicit in the entire structure of the Act that the Board acts to oversee and referee the process of collective bargaining leaving the results of the con test to the bargaining strengths of the parties In reaching its decision the Court of Appeals relied extensively on the equally important policy of the Act that workers rights to collective bargaining are to be secured In this case the court apparently felt that the employer was trying effectively to de stroy the union by refusing to agree to what the union may have considered its most important demand Perhaps the court fearing that the parties might resort to economic combat was also trying to maintain the industrial peace that the Act is de signed to further But the Act as presently drawn does not contemplate that unions will always be secure and able to achieve agreement even when their economic position is weak nor that strikes and lockouts will never result from a bargaining im passe It cannot be said that the Act forbids an em ployer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining It may well be true as the Court of Appeals felt that the present remedial powers of the Board are insufficiently broad to cope with important labor problems But it is the job of Congress not the Board or the courts to decide when and if it is necessary to allow govern mental review of proposals for collective bargaining agreements and compulsory submission to one side s demands The present Act does not envision such a process [397 US 99 107-109] In 1972 the Supreme Court in NLRB v Burns Security Services 406 U S 272 287 (1972) after restating its hold ing in H K Porter said Preventing industrial strife is an important aim of federal labor legislation but Congress has not chosen to make the bargaining freedom of employ ers and unions totally subordinate to this goal When a bargaining impasse is reached strikes and lockouts may occur This bargaining freedom means both that parties need not make any concessions as a result of Government compulsion and that they are free from having contract provisions imposed upon them against their will And see US Gypsum Co 94 NLRB 112 (1951) amend ed 97 NLRB 889 (1951) enfd in part and denied in part 206 F 2d 410 (5th Cir 1959) The conduct of the Charging Party Union here must also be taken into account Continental Nut Co 195 NLRB 841 (1972) A union violates Section 8(b)(1)(B) and 8(b)(3) by restraining and coercing an employer in the selection of a collective bargaining representative Quoting from NLRB v Carpenters Local 964 447 F 2d 643 (2d Cir 1971) We have held that the right of employees and the corresponding right of employers see section 8(b)1(B) to choose whomever they wish to represent them in formal labor negotiations is funda mental to the statutory scheme General Electric Co v NLRB 412 F 2d 512 516 (2d Cir 1969) See also NLRB v Laborers Local 264 529 F 2d 778 (8th Cir 1976) Truck Drivers Local 705 210 NLRB 210 (1974) Food & Commercial Workers Local 1439 262 NLRB 309 (1982) The failure to bargain charge against the Respondent Employer presupposes that it had no intention of reach ing an agreement whereas the Charging Party Union was willing to do so I am persuaded however that the Union here had no intention of reaching an agreement unless a union secunty clause was included The parties had moved toward settlement during the negotiations held between April 23 and July 21 By the latter date union security and wages were the only sig 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nificant issues outstanding 22 It is true that the Union had agreed to a number of proposals that the Company had advanced but it can hardly be said that all the issues settled were agreed on only because of concessions made by the Union in the face of inflexible positions taken by the Company The company made a number of conces sions (e g on wages holidays bereavement leave pen sions seniority) Indicative of Respondent s good faith was its willingness to consider the Union s proposals as well as its willingness to explain and if necessary modify its own proposals True the Union had raised ob jections to the flat rate system of compensation for me chanics Elsholz had indicated that he did not fully un derstand the proposed new method of compensation and the Company indicated a willingness to give it more study and possibly make changes It appeared in July that the Union had accepted the concept but the Union s final proposal presented on September 15 indicates the flat rate system was being rejected by the Union There was movement during negotiations from the Company in the way of compensation and I am persuaded that the failure to reach agreement did not occur only because of the Company s failure to offer higher wages With respect to union security the Company admit tedly did not want to retain a union security clause in the contract It proposed its deletion at the outset in favor of an open shop But during the course of negotia tons it offered different options with respect to union se cunty and the Union would not consider any of them 23 Union security is a mandatory subject of bargaining and an employer has a right to propose during negotia tons that it be deleted from a new contract Such fact is evident from the Supreme Court cases previously dis cussed 24 It was the Union not Respondent which was 22 As previously indicated I generally credit Dave Stnmling Re spondent s chief spokesman over Robert Elsholz the Union s spokesman Strimling impressed me as a forthright witness and one having better recall of the relevants events Stnmling testified that the Company offered a proposal something like the Lockheed Aircraft had at one time whereby those that were members upon signing of the agreement or that those that subsequently become members stay a member and those that weren t didn t have to be Later at the June 2 bargaining session the Company proposed a maintenance of membership plan that allowed a union representative to meet with an employee on company time to solicit membership On July 21 the Company Increased the time for the Union to meet with an em ployee to 1 hour The Union would not consider any of such proposals 24 And see Atlas Metal Parts Co v NLRB 660 F 2d 304 308 (7th Cir 1981) Quoting from the court s decision reversing the finding and order on Bad Faith Bargaining The board s emphasis on Atlas having agreed to union security and checkoff in prior contracts suggests the view that those provi sions thus became sacrosanct and not subject to negotiation in future contracts A once in forever in concept however has no basis in logic or law Indeed the board s position would encourage employ ens to oppose union security checkoff and similar union desired pro visions in initial contracts fearing that once in such provisions would be forever in An employer is entitled to advance a position sincerely held not withstanding the employer s having taken a different position at an earlier time NLRB v Pacific Grinding Wheel Co 572 F 2d 1343 1348 (9th Cm 1978) Union security and checkoff are mandatory subjects of bargaining and [a] party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force agreement by the other party [Citations omitted ] inflexible and refused to discuss the issue The Union s insistence that any contract negotiated must contain the union security clause was the major factor leading to a deadlock in the negotiations in my view Elsholz the union bargaining representative frankly acknowledged that he would not consider any change in the union secu rity clause He stated that his response to Dave Strimling was when the latter proposed an open shop at the May 3 bargaining session we weren t going to discuss the union security clause Elsholz claimed on cross exami nation that the Union considered everything the Compa ny proposed but he then acknowledged that with re spect to the options the Company offered on union secu nty the consideration was limited to saying they are not acceptable In addition to taking a rigid position on union security the Union maneuvered to circumvent and eliminate Re spondent s bargaining representative Sequoia Employers Council in violation of the Act In June 1982 Elsholz came to Respondent s place of business and threatened to strike unless Sosmsky would terminate SEC s services as the Company s bargaining representative Both Sosinsky and Jones Respondent s service manager testified credi bly that Elsholz made such a threat and suggested So sinsky and Elsholz sit down together and negotiate a contract and thereby avert a strike Elsholz acknowl edged that he went to see Sosinsky and told him that an agreement could be reached and a strike averted if So sinsky would call SEC and terminate its services Two employees witnesses called by Respondent Ted Jackson and Donvan Higginbotham testified credibly concerning efforts of the Union to have Respondent ter minate SEC s services Two employee witnesses called by Respondent Ted Jackson and Donovan Higginbotham testified credibly concerning efforts of the Union to have Respondent ter minate SEC s services Jackson testified that Shop Steward Olson and Elsholz had told employees at a meeting held in the union hall that it would cost Sosinsky a lot of money if the negotia tons were dragged out and Sosinsky would have to ter minate the services of SEC Both Jackson and Higgin botham stated that employees were instructed to attend the bargaining session held in the evening of June 30 and keep the meeting going so nothing would be resolved Higginbotham recalled that Olson had asked Elsholz during a meeting in the union hall sometime prior to June 30 whether Elsholz had contacted Brett Speers (at that time the principal owner of Respondent) about put ting pressure on Kevin to get the Sequoia people out of the picture Testifying as a rebuttal witness Shop Steward Olson acknowledged that employees attending the June 30 meeting at the union hall were informed of an open bargaining session that was to be held later that evening The employees were told according to Olson that they were just there to watch He denied that any derogato ry comments were made about the Sequoia Employers Council I do not credit such denials however Olson did acknowledge on cross examination that company FRONTIER DODGE 731 representatives were not told that employees would be attending the evening bargaining session.25 Speers was obviously contacted by the Union as he ar- ranged for Sosinsky to come to a meeting with Speers and union officials at the Oasis Restaurant sometime in August (after the employees had gone on strike). So- sinsky came to the meeting reluctantly, and only after calling the Company's collective-bargaining representa- tives, Strimling and Sommerfeld, and asking that they meet him there. When Sosinsky arrived at the restaurant, he saw that Speers' brother (Pat) and two union repre- sentatives, Eric Hoffman of the Machinists Union and Bob Scott of the Carpenters Union, were there. 26 So- sinsky told Hoffman that the Union was circumventing the Company's bargaining agent, but Hoffman responded that "that was a bunch of bullshit." Hoffman stated that "we could work this thing out." Hoffman referred to SEC as "just a bunch of union busters" and turned to Speer to say, "no one was supposed to know about this goddamned meeting." When Strimling and Sommerfeld arrived, Hoffman stated, "Get these sons-of-bitches out of here, they are just a bunch of pncks." Hoffman con- tinued, as Sosinsky credibly explained: From that point on Mr. Hoffman was using every four-letter word he could. He had been told by Pat Speers to shut up, that there were families present in the restaurant. He was very excited and he told me that as long as Sequoia was there they would strike forever, and that he was going to bury me. He said he was going to put ads in the newspaper telling people not to buy in my place, and he says, we're going to do everything we can to run you out of business. . . . 27 In early September Elsholz telephoned Sosinsky and, after asking about Sosinsky's new baby and "how the strike was doing," stated that he could get along with Sosinsky but not "those guys," referring to Strimling and Sommerfeld. Also, for a period that began shortly after the Union struck Respondent on July 22 and continued until Octo- ber or later, Respondent utilized a picket sign that read: "LET'S NEGOTIATE IN GOOD FAITH, GET RID OF SEQUOIA EMPLOYERS' COUNCIL" (R. Exh. 9).28 I do not agree with the General Counsel that Re- spondent's conduct involved "at best, some angry and ir- relevant rhetoric" on the part of Hoffman or "at worst • . . some kind of 'skip counsel' tactics . . . largely of an 25 Stnmling testified that Elsholz had requested that an evening session be held on June 30 but had not informed him that employees would also be attending Strimling stated that when he and Sommerfeld arrived that evening Elsholz and Olson were there with 8 or 10 employees Questions were posed during the meeting, he said, "mostly" by the employees 28 Hoffman's connection with the Charging Party Union is not in dis- pute See his August 9 letter to the SEC (R Exh 12) 27 Both Strimling and Sommerfeld testified that on an earlier occasion in 1982, prior to the time Sosinsky had employed them to represent the Company, Hoffman had stated to them that he was going to make them 'famous' 28 The Union also used a picket sign that read, "Everyone Walks till the Bossman Talks" and "On Strike by Machinists, Please Do Not Pa- tronize" (R Exh 8) academic nature." Contrary to the General Counsel's ar- gument, the facts in Continental Nut Co., supra, were not so dissimilar to those in the case at bar. The union there, unlike the Charging Party here, undertook to repudiate a number of agreements previously made and insisted that the company sign an agreement written by the union. But the union in Continental Nut, which threatened a strike (and later struck at a critical time for the compa- ny), also refused to discuss the company's proposal of a maintenance-of-membership provision. The judge repeat- ed the words of the union's negotiator in that case (195 NLRB 841 at 845): "No, don't waste your time. Don't bother us with a maintenance membership provision . . . we know how to handle companies like Continental Nut." Goldblatt [the negotiator] concluded with a threat in vulgar terms to teach the Respondent a lesson "when it comes to the processing season." Thus, the Union's refusal to bargain in the case at bar, as in Continental Nut, removed the possibility of negotia- tion of an agreement and precluded the existence of a sit- uation wherein Respondent's good faith could be tested. 29 I find that Respondent did not refuse to bargain in good faith with Union. I further find that the strike which began on July 22, 1982, was neither caused nor prolonged by any unfair practice of Respondent. 2. The 8(a)(1) charges Paragraph 6 alleges Respondent, acting through Gen- eral Manager and Executive Vice President Sosinsky, violated Section 8(a)(1) of the Act by: 1. Requesting an employee in April to circulate a peti- tion to decertify the Union as the collective-bargaining representative (par. 6(a)). 2. Telling an employee in approximately April that Re- spondent intended to get rid of the Union irrespective of the desire of the employees (par. 6(b)). 3. Interrogating in April an employee concerning the degree of employee support for the Union (par. 6(c)). 4. Telling an employee on or about July 23 that Re- spondent intended to get rid of the Union and threatened him with unspecified reprisals because of his support for the Union (par 6(d)). 5. Telling an employee that in May or June that Re- spondent would get rid of the Union even if it cost $10,000 to do so (par. 6(f)). 6. Telling an employee on or about July 23 that Re- spondent was engaged in "busting the Union." (Par. 6(g).) Paragraph 6 (subpar. (e)) also alleges that Respondent violated Section 8(a)(1) on or about July 23 when Serv- 29 Nor do I agree with the General Counsel that Mar-Len Cabinets, 243 NLRB 523 (1979), is applicable here In that case the union had counterproposed an agency shop in response to the employer's proposal to delete a union-security clause In any event, I am not persuaded on this record, as the administrative judge was in Mar-Len, that Respondent entered into negotiations with the preconceived thought that the Union would never accept any dilution of its representative authority 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ice Manager Jones encouraged an employee to withdraw from membership in the Union a Paragraphs 6(a) (b) and (c) Wilburn Lee Dorman testified that he had been em ployed by Respondent as a mechanic for almost 10 years He stated that on a Friday in early April Sosinsky Re spondent s executive vice president and general manager approached him while at work and asked to speak to him According to Dorman Sosinsky asked Dorman to have employees sign a petition to get the Union out Dorman said Sosinsky stated that he really wanted to get the petition signed because it would cost him $10 000 to get rid of the union Sosinsky also told Dorman according to Dorman that the Company would continue to pay the same wages if the workers were to sign the petition Sosinsky wanted an answer from Dorman by the following Tuesday Dorman said Dorman indicated to Sosinsky that Sosinsky might be stretching friendship a little far but would speak to the guys Dorman said he approached other employees in dividually and asked them if they would be willing to get rid of the Union Dorman claimed he did not tell other employees that Sosinsky had spoken to him about a petition 30 The employees were opposed to getting rid of the Union Dorman said Dorman reported back to Sosinsky the following Monday Sosinsky said he was sorry to hear the employ ees were unwilling to get rid of the Union and he got mad and walked off Donovan Higginbotham a defense witness who was hired by Respondent Service Manager Jones in Febru ary testified that Dorman never contacted him about So sinsky wanting to get rid of the Union 31 Sosinsky denied telling Dorman that it would cost $10 000 to get rid of the Union and denied having any conversation with Dorman about the Union The General Counsel relies on the testimony of Dorman as proof of the charges contained in subpara graphs (a) (b) and (c) of paragraph 6 Even though Dorman s transcribed testimony seems somewhat illogi cal in part and not entirely consistent I credit his testi mony as establishing the essential allegations of these subparagraphs Dorman s reference to the $10 000 is a little perplexing—i e He told me he really wanted to get the petition signed because it would get rid of the Union and that he didn t have $10 000 Dorman claimed that he did not tell other employees that So sinsky had asked him to speak to them yet he said he told them Mr Sosinsky wanted to get rid of the Union The fact that he did not know what a decertifi 3° Dorman said he did tell fellow employee Leroy Robertson of his conversation with Sosinsky because Robertson had seen Sosinsky and Dorman conversing Robertson testified that he did see Dorman and So sinsky talking and that Dorman thereafter stated that Kevin was want mg to get a petition around to see if we would get rid of the Union 3 Ted Jackson another defense witness who said he was employed by Respondent as a mechanic on June 1 and attended a union meeting at which employees were urged to get rid of Sequoia Employers Council Respondent s negotiating representative by dragging out the negotia ttons stated that Dorman had a petition to consent to Kevin getting rid of Sequoia Respondent s negotiating agent cation petition was to say is of no significance I believe and find Sosinsky communicated the message to Dorman that he wanted the Union out as the bargaining representative of the employees and that he desired Dor man s help in that endeavor by circulating a petition among the employees I also believe and find that So sinsky later interrogated Dorman about how successful Dorman had been in contacting his fellow employees about getting rid of the Union Such statements and in quiry on the part of Sosinsky were coercive and in viola tion of the Act 32 b Paragraph 6(d) Statements of Bruce Olson a striking employee obvi ously provide the basis for this charge Olson testified concerning a conversation he said he had with Sosinsky and Service Manager Norris Jones around 7 a m on July 23 the day after the strike began Olson said he was on the picket line in front of Respondent s premises and had been engaged in a conversation with another striker Leroy Robertson when Sosinsky and Jones approached them Jones asked Olson according to Olson if he knew it was a Federal offense to commandeer a common car rier Olson said he thought Jones was kidding and testi fled that he did not recall commandeering or driving any trucks on the day before Asked what if anything So sinsky said Olson replied Kevin said that by God he was going to take and run his shop the way he wanted to run it and he was going to throw the Union out and was going to have my goddamned ass that is exactly what he said and away they went Olson said Sosinsky appeared to be upset at the time Jones denied having any conversation with Bruce Olson about common carriers or Federal offenses on July 23 or having any other conversation with Olson that day Jones also denied hearing Sosinsky tell Olson that day that Sosinsky was going to run his own shop throw the Union out or have his ass Sosinsky also denied making a statement on July 23 or hearing a statement by another that day concerning a Federal offense or common carriers Sosinsky acknowl edged speaking to Olson that day and telling him that he would have his ass He stated that Olson had stopped people entering the service department on the previous day and indicated he was not happy about it Quoting from Sosinsky s direct testimony I told him that he had better stay away from my goddamned customers and he had better stay away from the damned trucks that deliver parts to me and if he ever called my family in the middle of the 32 Respondent argues that Sosinsky should be credited over Dorman on the basis that Sosinsky had no motivation to get rid of the Union in early April when the alleged conversations with Dorman took place It is apparent however that Sosinsky was opposed to the Union as the unit s bargaining representative and I can hardly conclude on this record that such desire came into existence only with the commencement of ne gotiations later in the month FRONTIER DODGE 733 night and harass my wife and my daughter, that I'd have his ass. Olson's testimony concerning this July 23 incident is more persuasive than Sosinsky's, and I therefore credit Olson's account. Sosinsky did not deny that the confron- tation between him and Olson occurred—only that he made no threat with reference to getting rid of the Union. Given the circumstances and Sosinsky's attitude and frame of mind, I believe, and find, that Sosinsky did make the challenged threat. The charge in paragraph 6(d) is duplicative of paragraph 6(b) of the complaint, however, and no additional relief is appropriate. c. Paragraph 6(e) Roy Nightengale testified that he was on vacation when the strike began and "showed up on the 24th, Sat- urday." He said he returned home on July 23 and re- ceived a telephone call from Norris Jones that afternoon around 5 o'clock. After discussing the fact that the em- ployees were on strike, Jones stated, according to Night- engale, "We'd like you to come back to work, cross the picket line, and I've got all the paperwork on my desk that you can sign to withdraw from the Union." Jones added that most positions had been filled and offered the opinion that the Union could not refuse to reinstate him at a later time Jones denied that he telephoned Nightengale or any other employee to request his return to work. Jones spe- cifically denied asking Nightengale to resign from the Union. Jones said Sommerfeld and Strimling of the SEC had advised him not to have conversations with union employees and to refer their questions to the SEC. Nightengale's testimony to the effect that he received the call from Jones and was encouraged to withdraw his membership from the Union was credible—more than Jones' denial. Accordingly, I find paragraph 6(e) sus- tained. d. Paragraph 6(.1) Leroy Robertson, a striking employee, testified that at an employee meeting Sosinsky stated that he was going to try to get rid of the Union even if it would cost him $100,000. Specifically, Robertson testified: I think at one of the others [employee meetings] he said something about he didn't care if it cost him $100,000 to get rid of it if he was going to try to get rid of it Robertson was uncertain when the employee meeting took place but thought it occurred around May—"prob- ably in May, along in May sometime, the last part."33 Sosinsky denied telling employees that he would spend $100,000 to get rid of a union or saying anything like that. Sosinsky said that he tried to avoid talking to em- ployees during negotiations at the suggestion of Sommer- 33 Robertson stated that another meeting took place around the same time at which Sosinsky and Service Manager Jones appeared and dis- cussed the Company's flat-rate system feld in order to avoid being "entrapped" into saying something that should not be said This charge, which is duplicative of paragraph 6(b), will be dismissed. I believe it unlikely that Sosinsky would have made a statement of this kind at a meeting of employees, especially after being counseled by Sommer- feld about talking to employees during negotiations Sommerfeld (along with Strimling, his colleague from the Sequoia Employers' Council) was not, of course, em- ployed by Sosinsky until April, but Robertson's testimo- ny was somewhat vague as to what was said and when. No other employee testified about Sosinsky making such statements at an employee meeting, and two employees who said they attended employee meetings, Ted Jackson (not hired until June 1) and Donovan Higginbotham, denied hearing them.34 e Paragraph 6(g) Leroy Robertson also testified that he was present on the picket line at Frontier Dodge with Bruce Olson one day when Bruce Olson, another striker, introduced Wiliam Lopez, grand lodge representative of the Union, to Respondent's executive vice president, Kevin So- sinsky. Robertson stated that Lopez inquired of Sosinsky how things were going and Sosinsky replied, "busting the union as usual." Olson testified that he was on the picket line on an oc- casion when Lopez and Sosinsky exchanged comments. Olson said he heard none of the conversation, however, except for the words "as usual" as he had turned and started walking away. Sosinsky denied telling Lopez that he was "busting the union" or making any similar statement. The alleged statement does not even appear to involve a serious utterance. Interestingly, Lopez was not called and questioned about the alleged statement. In any event, I credit Sosinsky's denial of making the statement over Robertson's claim that Sosinsky did so. Olson's testimo- ny—that he remembered hearing "as usual"—is not cor- roborative that the challenged statement was made. Para- graph 6(g) will be dismissed. Based on the foregoing, I make the following CONCLUSIONS OF LAW 1. Respondent, Frontier Dodge, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 115, Local Lodge 1528, is a labor organization within the meaning of Section 2(5) of the Act. 34 Jackson started as a mechanic on June 1 and attended employee meetings thereafter He recalled a specific employee meeting at which Jones and Sosinsky attended and discussed the flat-rate system "Mostly Mr Jones did the talking," Jackson said Higginbotham, who was hired by Service Manager Jones in February (who told him he had to Join the Union and did so even though he "wasn't crazy about" it), attended employee meetings between April I and July 22, when the strike began He also testified concerning a meet- ing at which Sosinsky and Jones discussed the flat-rate system, a plan the employees agreed to try even though it "upset" them 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 All mechanics frame and/or front and machine men auto electricians parts department employees lu bncators used car lot and parts pick up employees guards and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargain ing within the meaning of Section 9(b) of the Act 4 Respondent has interfered with restrained and co erced employees in violation of Section 8(b)(1) by (a) telling employees that it wanted the Union out as the employees bargaining representative (b) by requesting an employee to circulate a petition to decertify the Union (c) by interrogating an employee concerning the degree of employee support for the Union and by (d) encouraging an employee to withdraw membership from the Union 5 Respondent has not failed to bargain in good faith and did not cause or prolong the strike which began on July 22 1982 and remained at all times relevant herein an economic strike 6 Respondent has not engaged in any other unfair labor practice As a remedy I shall recommend that Respondent Frontier Dodge Inc cease and desist from engaging in the unfair labor practices found and take certain affirma tive action which will effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 35 ORDER The Respondent Frontier Dodge Inc d/b/a Fireside Dodge Modesto California or under any other name its officers agents successors and assigns shall 1 Cease and desist from (a) Telling an employee that it wants the Union out as the employees bargaining representative (b) Requesting an employee to circulate a petition to decertify the Union (c) Interrogating an employee concerning the degree of employee support for the Union (d) Encouraging an employee to withdraw member ship from the Union 3 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses (e) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its Modesto California place of business copies of the attached notice marked Appendix 36 Copies of the notice on forms provided by the Regional Director for Region 32 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 36 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na bonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees we want the Union the International Association of Machinists and Aero space Workers AFL-CIO District Lodge No 115 Local Lodge 1528 or any other labor organization out as their collective bargaining representative WE WILL NOT request employees to circulate a peti tion seeking to decertify the Union WE WILL NOT interrogate our employees or otherwise inquire of them as to whether they support a union WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act FRONTIER DODGE INC