John L. Gibson, 219 (1971)

Docket Number:06-CA-04873


R. James Span, d/b/a John L. Gibson and International Association of Machinists and Aerospace Workers, District No. 63, AFL-CIO. Case 6-CA-4873 prior to November 13, 1969, since the remedy would be the same as ordered herein 3 In footnote 15 of the Trial Examiner's Decision, substitute '20' for 'l0' days TRIAL EXAMINER'S DECISION March 23, 1971 DECISION AND ORDER



On August 21, 1970, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint. Thereafter, the Respondent filed exceptions and the General Counsel filed limited exceptions to the Trial Examiner's Decision.' Both filed supporting briefs.

Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner.


Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, R. James Span, d/b/a John L.

Gibson, Monessen, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.3

I Respondent's request for oral argument is hereby denied, since the record, exceptions, and briefs adequately present the positions of the parties 2 The General Counsel excepted to the Trial Examiner's failure to find that no bona fide impasse, in fact, existed between the parties in their collective-bargaining negotiations from July 15, 1969, and November 13, 1969, as alleged in the complaint The Trial Examiner found that Respondent violated Section 8(a)(5) and (I) of the Act by its refusal to meet and bargain with the Union on and after November 13, 1969, and recommended a bargaining order with which we agree We, therefore, find it unnecessary to determine whether or not a bona fide impasse existed STATEMENT OF THE CASE

EUGENE F. FREY, Trial Examiner: The issue in this case, which was tried before me on June 11, 1970, at Pittsburgh,

Pennsylvania, with all parties appearing by counsel or other representative, is whether or not Respondent, R. James Span, operating a retail automobile sales agency under the name of John L. Gibson, failed and refused in various ways to bargain collectively with the above-named Union as statutory representative of his employees, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et seq. (herein called the Act). The issues apse on a complaint issued April 30, 1970, by the Board's Regional Director for Region 6,1 and answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices. At close of the trial all parties waived oral argument but written briefs filed by the General Counsel and Respondent have been carefully considered in preparation of the Decision.2

Upon the entire record in the case, and from my observation of witnesses on the stand, I make the following:


  1. RESPONDENT'S BUSINESS, AND STATUS OF UNION Respondent is a sole proprietor engaged at Monessen,

    Pennsylvania, in the retail sale and service of motor vehicles. In the 12 months prior to issuance of the complaint herein, his gross sales exceeded $500,000, and in the same period he had a direct inflow of goods and services valued in excess of $50,000. Respondent admits and I find that he is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

    The above Union is a labor organization within the meaning of Section 2(5) of the Act.

    It. THE ALLEGED UNFAIR LABOR PRACTICES A. The sequence of events On December 3, 1968 , after a Board-conducted election in Case 6-RC-4839, the Union was certified by the Board as statutory bargaining representative of employees of Respondent in an appropriate unit consisting of all new and used car salesmen employed at Respondent's Monessen,

    Pennsylvania, place of business, excluding all service department employees , office clerical employees, guards, professional employees and supervisors as defined in the Act. Respondent admits, and I find, that this unit is still appropriate for purposes of collective bargaining within the I The complaint issued after Board investigation of charges filed by the Union on January 15 and March 13, 1970

    2 After the hearing closed, counsel for General Counsel moved on notice to all parties to correct the transcript of testimony in certain respects There being no opposition to the motion, it is hereby granted, the record is considered corrected as proposed in the motion, and the motion itself is marked in evidence as G C Exh 28

    189 NLRB No. 37 meaning of Section 9(b) of the Act. I also find that at all times material herein the Union has been the statutory representative of the employees in said unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act.3 In a companion case, 6-RC-4841, the Union was at the same time certified as statutory agent for a similar unit of employees of Matway Chevrolet, Inc., an automobile dealer in Belle Vernon, Pennsylvania. Bargaining started on January 22, 1969, when the Union sent Respondent's counsel, J. Thomas Menaker, at his request its initial contract proposal which was applicable to salesmen of both Matway and Respondent .4 After examination of it, Menaker advised the Union on January 30 that the employers needed more time to prepare written counterproposals, and suggested a meeting on February 18 or 19. They finally agreed to meet on February 27, but on the 19th Menaker sent the Union the joint counterproposals of both employers, noting that they omitted specific financial proposals which Manaker advised he would present and discuss fully at the coming meeting.5 On that date the parties went over the company proposals item by item, comparing each with the Union's clauses, and reached tentative agreement on the contents and wording of at least eight clauses, with some agreed changes of wording, out of 19 provisions .6 There was a lengthy discussion of the union shop demand of the Union, with Menaker and an official of Respondent arguing against that clause because one salesman of Respondent was adamant against the Union and did not want to join it;

    Menaker proposed other forms of union security, such as a maintenance-of-membership clause, but Jesse G. Young, the union spokesman, flatly stated that the Union would not sign agreements without a union-shop clause. Menaker recited orally the economic proposals, which Young noted down and then discussed in detail . For Respondent these proposals included a base salary of $300 per month for salesmen, the same as the Union's initial proposal. The Union asked for detailed information on the employers' insurance and retirement plans, methods of payment of salesmen, and procedure for use of demonstration cars by salesmen. On this request, Menaker indicated at first that details of the retirement and health and welfare plans, and other financial information, could be procured directly from the employees,7 but he then gave some details. In explaining the retirement plan, Menaker said that employer contributions were 2 percent of employers' gross commissions and other income, the employees contributed a like amount, and the benefits paid depended on the amount of the contributions. Regarding the health and welfare plans, Menaker explained in some detail the Pennsylvania Automotive Association Insurance plan which Matway maintained, and the self-contributing Pittsburgh Blue Cross-Blue Shield plan in effect at 3 While Respondent denied the representative status in its answer, and noted that the certification year expired December 3, 1969, the record shows that it did not make this claim in commumcation with the Union in January 1970, nor in its arguments herein , but in fact has acted as though the...

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