Desert Toyota

National Labor Relations Board - Board Decisions

Dec 23, 2005

346 N.L.R.B. 110 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 2
110
T-West Sales and Service, Inc. d/b/a Desert Toyota
and International Association of Machinists and
Aerospace Workers, Local Lodge 845, AFL–
CIO. Case 28–CA–20207
December 23, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 24, 2005, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The General
Counsel and the Union filed exceptions and supporting
briefs. The Respondent filed an answering brief; the
General Counsel filed a reply. The Respondent also filed
cross-exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed a reply.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The recommended Order of the Administrative Law
Judge is adopted and the complaint is dismissed.
Joel C. Schochet, Esq., for the General Counsel.
Douglas R. Sullenberger, Esq. (Fisher & Phillips, LLP), of
Atlanta, Georgia, for the Respondent.
Don C. Whitaker, Grand Lodge Representative, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on June 29, 2005. The charge
and first amended charge were filed on March 22 and May 25,
2005,1 respectively, and the complaint was issued May 27.
The complaint alleges that T-West Sales & Service, Inc.
d/b/a Desert Toyota (Respondent) violated Section 8(a)(5) and
(1) of the Act by changing its 401(k) benefits and fees for em-
ployees represented by the International Association of Ma-
chinists and Aerospace Workers, Local Lodge 845, AFL–CIO

1 In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(5) and (1) of the Act when it (1) refused to provide informa-
tion on various dates between November 2004 and March 2005, and (2)
unilaterally changed the matching contributions for employees enrolled
in its 401(k) plan, we do not rely on the analysis set forth in his deci-
sion. Rather, in light of our reversal of the bargaining order recom-
mended in Desert Toyota, 346 NLRB 118 (2005), we find that the
Respondent did not have an obligation to bargain with the Union as the
exclusive collective-bargaining representative of its employees.
Member Liebman dissented from the denial of a bargaining order in
the earlier case, but agrees that the Board majority’s decision there is
dispositive here.
1 All dates are from June 30, 2004, to June 20, 2005, unless other-
wise indicated.
(the Union) without first giving the Union an opportunity to
bargain about the changes. The complaint also alleges that
Respondent violated Section 8(a)(5) and (1) by delaying in
providing information requested by the Union. Respondent
filed a timely answer that, among other things, denied it had
violated the Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Union,3 I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in business of new car
sales and service at its facility in Las Vegas, Nevada, where it
annually derives gross revenues in excess of $500,000 and
purchases and receives goods values in excess of $50,000 di-
rectly from points located outside the State of Nevada. Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This is the fourth in a series of unfair labor practice proceed-
ings against Respondent. On November 13, 2002, Judge Lana
H. Parke issued a decision finding that Respondent violated
Section 8(a)(1) and (3) of the Act. Judge Parke concluded that
those unfair labor practices were serious enough to warrant the
imposition of a bargaining order against Respondent. Excep-
tions were filed and the Board has yet to issue its decision in
that case. On December 3, 2003, Judge Albert A. Metz issued
a decision concluding that Respondent violated Section 8(a)(1),
(3), (4), and (5). On February 20, 2004, Judge Larry R. Hicks
of the United States District Court for the District of Nevada
granted an injunction against Respondent under Section 10(j) of
the Act. Among other things, Judge Hicks ordered Respondent
to recognize and bargain with the Union as the bargaining rep-
resentative of the unit employees and to promptly provide the
Union with all relevant and necessary information. Later,
Judge Metz issued another decision concluding that Respondent
again violated Section 8(a)(5). The allegations in the case be-
fore me hinge upon the validity of the bargaining order in Judge
Parke’s case.
Don C. Whitaker is grand lodge representative for the Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO. He served as the Union’s representative in bargain-
ing with Respondent. With Whitaker at the bargaining table for
the Union were bargaining unit employees Phil Albano and
Mario Portillo. Jorge Gonzalez is director of human relations
for AutoNation, Inc. He is responsible for negotiating collec-

2 I find it unnecessary to rely on GC Exh. 21 in reaching a decision
in this matter. See ALJ Exhs. 1–4.
3 After the hearing closed, David A. Rosenfeld, Esq. (Weinberg,
Roger, & Rosenfeld), of Alameda, California, entered an appearance on
behalf of the Union.
DESERT TOYOTA 111
tive-bargaining agreements throughout that company; he repre-
sented Respondent in its negotiations with the Union.4 Layla
Holt is human resources manager for AutoNation; she was a
member of the negotiating team and was responsible for taking
notes for Respondent. Negotiations began between Respondent
and the Union in April 2004 and have continued to the time of
the hearing in this case. During this same time period Whitaker
and Gonzales were also involved in collective-bargaining nego-
tiations for Power Ford of Torrance; Power Ford is located in
California. AutoNation is the parent company to both Respon-
dent and Power Ford. Significant to this case is the fact that
both Power Ford and Respondent participated in the 401(k)
plan offered by AutoNation. It is important to note that Auto-
Nation is not named as a respondent in the complaint. By at
least July 29, 2004, Respondent had supplied Whitaker with the
summary plan description for AutoNation’s 401(k) program.
The summary plan document dated March 2004 states the fol-
lowing:
The Company has the discretion to charge all or a portion of
certain Plan administrative expenses to your Account. Exam-
ples of such administrative expenses include recording costs,
proxy fees and other fees associated with maintaining your
Account under the Plan.
. . . .
[T]he Company has reserved the right to amend any and all
provisions of the Plan, stop its contributions to the Plan, or
terminate the Plan at any time in the future.
It did not contain any description of specific fees or costs
charged to participants in the plan. There are about 30 employ-
ees in the bargaining unit 8 or 9 of whom have opted to partici-
pate in the 401(k) plan.
B. Alleged Violations
On October 29, AutoNation’s 401(k) plan was amended to
reduce the employer’s matching contribution from 50 percent
of the first 4 percent of eligible compensation that an employee
contributes to 50 percent of the first 2 percent of eligible com-
pensation that an employee contributes. The plan was also
amended so that a participant’s account could be assessed for
and reduced by any of the following fees:
• Distribution check fees.
• In-kind distribution stock certificate fee.
• Qualified Domestic Relations Order processing fee.
• Per participant recordkeeping fee (terminated participants
only).
• Postage fees for statements and confirmation statements
(terminated participants only).
• Asset charge/trusteee’s fees (terminated participants only).
Respondent had nothing to do with the decision to change the
401(k) plan.

4 At the hearing, I allowed Respondent to amend its answer to deny
that Gonzalez was an agent of Respondent. The facts set forth below
clearly belie this denial and I conclude that Gonzalez was Respondent’s
agent for purposes of negotiating a collective-bargaining agreement
with the Union.
On November 9, AutoNation sent a letter addressed to the
401(k) participants. The letter indicated that there would be
changes to the plan effective January 1. Significantly, the letter
stated:
Also, effective January 1, 2005, the company match will be
50% of the first 2% of eligible compensation that an associate
contributes. This is a change from the current 50% of the first
4% of eligible compensation that an associate contributes.
Although this will result in a reduced total match for certain
associates, the company match continues to be a great benefit
as well as an additional incentive for retirement savings.
The letter made no mention of any change in fees. Whitaker,
however, did not see this document until the day of the hearing
in this case.
On November 30, Gonzalez and Whitaker were involved in
bargaining concerning Power Ford. Near the end of the meet-
ing that day Gonzalez informed Whitaker that there would be a
change made in the Company’s 401(k) plan. Gonzalez in-
formed Whitaker that he knew that at the very least the Com-
pany was looking at cutting its matching contribution in half
effective January 1. Gonzalez said that there could be other
changes, but he was not sure. Gonzalez also informed
Whitaker that he (Gonzalez) had not been consulted about this
matter. Gonzalez did not mention the November 9 letter.
Whitaker replied that he thought this would be a major unilat-
eral change in benefits and that he wanted all documents per-
taining to any changes that were being proposed on January 1
for the 401(k) plan. Whitaker continued that he wanted to re-
view the documents so he could respond and that they should
not make any change to the plan until he had the documentation
and a chance to bargain over the change. Gonzalez said he
would see what he could do. Gonzalez admitted that on No-
vember 30 he was aware that a prior communication had been
sent to employees on the 401(k) changes and his bargaining
notes support that admission.
After the November 30 meeting, Gonzalez contacted Mau-
reen Redman, AutoNation’s benefits director. Redman pro-
vided Gonzalez with a copy of the November 9 letter. She
explained that the employee benefits committee had approved
the change earlier in October. Gonzalez also spoke with Cole-
man Edwards, AutoNation’s deputy general counsel. Gonzalez
asked Edwards if they could change the 401(k) plan back to the
greater employer match amount, and Edwards said no.
Respondent and the Union next met for bargaining on De-
cember 7, 8, and 9. On December 8, Respondent presented the
Union with a contract proposal that indicated that the portion
covering benefits, pension, and 401(k) were to be provided later
by Respondent as part of its economic proposal. On December
17, Whitaker wrote Gonzalez a letter complaining of Gonzalez’
unwillingness to schedule more bargaining sessions; that letter
did not refer to the 401(k) matter.
On December 22, AutoNation sent a letter addressed to
AutoNation Associates. The letter announced that effective
January 1 changes would take effect for the AutoNation 401(k)
plan, including “The match will be changing from 50 percent
up to 4 percent of eligible compensation to 50 percent up to 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD112
percent of eligible compensation.” The letter also described
fees that would be assessed to employees as follows.
• Distribution check fees—$25
• In-kind distribution stock certificate fee—$30.
• Qualified Domestic Relations Order processing
fee—$400, $200 deducted from the employee’s ac-
count and $200 deducted from the alternate payee’s
account.
• Per participant recordkeeping fee—$10 annual
fee (terminated participants only).
• Postage fees for statements and confirmation
statements—a quarterly fee of an unspecified amount
but which can be avoided using online transactions
(terminated participants only).
• Asset charge/trusteee’s fees—a quarterly fee of
an unspecified amount (terminated participants only).
On January 1, the changes concerning the matching contribu-
tions in the 401(k) plan were implemented for all 401(k) par-
ticipants including Respondent’s unit employees. At that time
Whitaker had not received any of the written information he
had requested concerning the changes, nor had there been any
bargaining on the changes. Gonzalez admitted that at this point
the parties had not reached impasse in bargaining on this mat-
ter.
Whitaker and Gonzalez met on January 13 for the Power
Ford negotiations. In preparation for that meeting Whitaker
had prepared three points in writing on his note pad. The sec-
ond point was that he trusted that Respondent has not made any
unilateral changes concerning the 401(k). When Whitaker
asked this question, Gonzalez answered that nothing had been
changed other than the company match and that he would get
Whitaker the information they may have. Gonzalez also stated
that the only other change was concerning the fees when with-
drawals are made. Gonzalez indicated that he understood that
this was a mandatory subject of bargaining. Whitaker still had
not received any of the documents he had requested.
On January 25 Gonzalez sent Whitaker a letter that dealt
with a number of matters. It stated that enclosed was:
The document we also referenced at the negotiations from
AutoNation’s 401(k) Plan Administrator, regarding the
change in the employer match and other minor changes.
Attached was the December 22 letter set forth above. Whitaker
replied by letter the next day. In his letter Whitaker recounted:
As you will recall, on Tuesday, November 30, 2004, at
the close of our negotiations for the above-subject com-
pany, you informed me that there were to be changes made
in the Company 401(k) plan. As a result of your com-
ments, I asked you to provide me with any and all docu-
ments and/or announcements of changes.
At this time, I informed you that any changes in the
401(k) plan concerning bargaining unit employees was a
mandatory subject of bargaining and that no changes
should be made unilaterally until such time as I was af-
forded the opportunity to review said changes and negoti-
ate over any changes. You informed me that you would
forward to me this material.
I did not receive any additional information from you
regarding this announced change during the month of De-
cember 2004. Therefore, on Thursday, January 13, 2005, I
requested that you provide me with any information and/or
documentation regarding any changes in the 401(k) plan.
During this discussion you informed me that you were not
aware of any notification that was available. You men-
tioned that you thought there may have been an email that
you had reviewed and that you would respond to my re-
quest.
In reviewing your letter of January 25, 2005, I find an
attachment dated December 22, 2004, that is addressed to
AutoNation’s Associates. I have since obtained a copy of
this document from bargaining unit employees at Power
Ford.
I trust you have informed those people in your com-
pany responsible for maintaining the 401(k) plan that no
changes to the 401(k) plan provided to the bargaining unit
employees at Power Ford Torrance is to be implemented
prior to your meeting the Company’s obligation to negoti-
ate over this change.Therefore, I must demand that you
show proof that this plan has not been changed for those
bargaining unit employees working at Power Ford Tor-
rance. Any such change(s) to this plan will be considered
an unfair labor practice.
On January 26, Whitaker sent Gonzalez a similar letter con-
cerning the changes to the 401(k) plan as they pertained to the
Respondent’s bargaining unit employees.
On February 23, Whitaker sent Gonzalez another letter. In
that letter Whitaker again recounted the history of the 401(k)
issue as he saw it. This time Whitaker added:
It is now my understanding that your company put out
the aforementioned December 22, 2004 communication to
bargaining unit employees at Power Ford Torrance and at
Desert Toyota, Las Vegas. I find this fact to be disturbing
due to the fact that you did not send this announcement to
me until my second raising of the issue, even though you
are aware that such changes are a matter of mandatory ne-
gotiations, and the fact that I had requested this informa-
tion as far back as November 2004.
Your delay in providing the above-referenced informa-
tion, and the fact that you continue to take the position that
you will not negotiate over economic issues such as the
401(k) Plan until all non-economic proposals are resolved,
only demonstrates your bad faith intentions to bargain in
good faith.
Therefore, as a second request, I must insist that you
provide me with copies of all information concerning 2005
contributions paid by the company as a match to employee
contributions immediately. I also demand you cease any
changes you may have unilaterally implemented concern-
ing the 401(k) Plan. In addition, I am demanding that you
arrange to meet with me immediately to provide said in-
formation and negotiate over such changes.
DESERT TOYOTA 113
On March 7 Whitaker again corresponded with Gonzalez. In
that letter Whitaker asserted that he had not yet received the
information he had requested concerning the 401(k) matter.
Respondent and the Union met for contract negotiations
again on March 8, 9, and 10. On March 8, Gonzalez said he
wanted to clarify Respondent’s position on the 401(k) plan.
Gonzalez said that the plan covered 24,000 employees through-
out AutoNation and they could not make changes to the plan
just for the bargaining unit employees at Respondent and Power
Ford. He said the plan could not treat the groups differently.
Gonzalez also said that there had not been a unilateral change
because there was a history of changes made to the plan. Gon-
zalez offered to bargain over the changes that had been made
and over their effects. Whitaker answered that he thought that
the bargaining unit employees could be treated differently un-
der the plan and he cited the example of Lockheed Martin
where the Union has negotiated amounts for the employer
match that varied from one bargaining unit to the next. Gon-
zalez said that he would double check the matter and get back
to Whitaker. Whitaker asked if Respondent and Power Ford
had cut the employer match to the employees’ contribution
since January 1 and Gonzalez answered that he believed it has
and he would get back to Whitaker. After some further discus-
sion Whitaker asked whether Gonzalez would provide the in-
formation concerning the 410(k) plan for Power Ford and Re-
spondent by the end of the week, and Gonzalez answered that
he would do so. On March 10, Gonzalez provided Whitaker
with information concerning the nine bargaining unit employ-
ees of Respondent who were participating in the 401(k) pro-
gram as well as their contributions and Respondent’s matching
contributions. Gonzalez explained that if Whitaker multiplied
the matching contribution by two he would have the amount
that would have been paid before January 1 as the employer
match.
On March 22 Gonzalez replied to Whitaker’s March 7 letter.
As it pertained to the 401(k) matter the letter stated:
As to your request for information regarding the 401(k) match
information, I have already previously provided said informa-
tion for Desert Toyota and I will provide you with similar in-
formation for Power Ford Torrance this week.
Gonzalez ended the letter by expressing his willingness to fur-
ther discuss any remaining issues with Whitaker.
Whitaker and Gonzalez met again for the Power Ford nego-
tiations on March 24. Gonzalez gave Whitaker information
concerning the 401(k) for the Power Ford bargaining unit as he
earlier had given for Respondent’s bargaining unit employees.
Whitaker asked if those were all the documents; that he was
under the impression that there were amendments to the sum-
mary plan description. Gonzalez replied that he understood
that the plan description was at the printers. He said that he
would check on the matter and when the plan was ready he
would send it to Whitaker.5
On March 30, Whitaker sent Gonzalez an email message that
included Whitaker’s complaint that Respondent had made uni-

5 There is no allegation in the complaint concerning this request for
information.
lateral changes to the 401(k) plan while at the same time refus-
ing to make any economic proposals at the bargaining table.
Whitaker insisted that Respondent stop the unilateral changes
that it had implemented on January 1.
On April 6, Gonzalez sent Whitaker a letter that set forth in
detail his viewpoint of the certain matters, including the 401(k)
issue; the letter, as it pertains to that issue, is set forth exten-
sively below.
Don, I am somewhat concerned that you continue to send
communications which appear to be primarily for the purpose
of creating a “paper trail” to support positions that you claim
we have taken. It’s time to set the record straight:
. . . .
(3) With regard to your complaint about the corporate
401(k) Plan, I believe you need to more carefully check
the facts:
(a) I first advised you concerning AutoNation’s plan to
modify one element of the corporate 401(k) Plan in late
November 2004, at our negotiating session in Las Ve-
gas.[6] You also showed me at that time, a copy of a No-
vember 9 letter to all employees participating in the Plan.
As we discussed, the Plan was scheduled for an employer
match modification on January 1, 2005.
(b) In late November and December, we met on six
separate occasions to continue negotiating the remaining
non-economic issues regarding Desert Toyota. During our
discussions concerning the Corporate 401(k) Plan, I in-
formed you that the only relevant document was the No-
vember 9 letter, which you already had in your possession.
After our last December session, there was an additional
December 22 letter regarding the Plan, which came out
from Corporate Benefits dealing with the same subject. I
was not provided a copy of this letter before it was sent to
all plan participants nation-wide. I forwarded a copy of
this to you in January, as you requested. The only other
document that exists is the one page actual amendment to
the Summary Plan Description. I have asked for a copy of
same and was advised it would be released on Monday,
April 11. I will provide you with a copy as soon as I re-
ceive it. As I am sure you are aware, however, the
amendment will provide you with the same information
you already have (i.e., the modification in the match
amount).
(c) During our November and December meetings, I
told you that the Company would certainly be willing to
negotiate about the Corporate 401(k) Plan and its applica-
tion in the Desert Toyota situation. I also informed you
that the plan itself remained essentially the same as it was
at the time we began negotiations. On January 28, 2005,
you also wrote to me and demanded that “no changes
should be made unilaterally until such time as I was af-
forded the opportunity to review and negotiate over any
changes.” You had ample time before this letter to review
the so-called “changes” during November, December and
January. The November 9 letter which you already had in

6 This is an error; as set forth above the notice was given as part of
the Power Ford negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
your possession prior to our November meeting, which
you showed me at that time, contained the only modifica-
tion to the corporate 401(k) Plan that could be the topic of
your request to review and bargain. This letter clearly
stated that the match would be 50% of the first 2% of an
employee’s eligible compensation, effective January 1,
2005. What other documents could you possibly have
been waiting for to (sic) under the Plan modification?
(d) As you are well aware, only 8 (out of potentially 34
or more) bargaining unit members actually participate in
the Corporate 401(k) Plan at Desert Toyota. It is not now
and never has been a mandatory requirement that employ-
ees participate in the Plan. During the summer of 2004, I
provided you with a copy of the complete Summary Plan
Description for the Plan, as part of our review of our bene-
fits package. We also provided you with additional infor-
mation, through our Merrill Lynch representative and
Kristin Slinkosky, our Corporate 401(k) Manager regard-
ing plan design, fund features, investment data and em-
ployee participation processes. As I recall, you asked sev-
eral questions and requested clarifications, which were
provided as part of this review. I also provided you with
the information you requested regarding all bargaining
unit employees participating in the Plan at Desert Toyota,
including employer match information, pursuant to your
February 23 letter requesting same.
(e) Although we have discussed the modification in the
corporate 401(k) Plan match amount, it is also clear that
this modification does not immediately impact any collec-
tive bargaining unit employee who actually participates in
the Plan at Desert Toyota. Regardless of the January
modification, the only time these participants might be
impacted would be upon retirement or withdrawal from
the Plan. Moreover, each of the eight participants contrib-
ute to the Plan at their own voluntary rates and also have
the right to make changes to those rates, at any time, pur-
suant to the provisions of the Plan.
(f) When we last discussed this topic, I told you that
we could take any number of possible approaches to ad-
dress your concerns regarding the 401(k) issue. Here are
the options I suggested:
• I told you that we discuss the 401(k) issue at any time
and discuss further (sic).
• I told you that depending on the outcome of further
negotiations of the total economic package, we might
end up with a higher effective employer match than
all other AutoNation employee plan participants re-
ceive.
• I told you that depending on the parameters of other
economic demands and agreements, we might ulti-
mately agree to pay additional monies to make up for
any perceived losses in 401(k) employer match con-
tributions, although—given the minimal number of
participants within the bargaining unit—this may not
be fair to the larger group.
• I also told you that we might also consider making a
lump sum payment to certain 401(k) participants, on
an individual basis, and I clearly left the door open
for any suggestions that you might have on this issue.
(g) You did not appear to want to want to engage in
negotiations over this one minor issue. Instead, you simply
continued to complain that we did not have the right to
“make unilateral changes in the 401(k) plan.” Again, we
do not believe that the modification of the match amount
represents a unilateral change to a material condition of
employment for the great majority of bargaining unit em-
ployees at Desert Toyota.
(h) Additionally, you have taken the position through-
out these negotiations that the IAM Pension Plan included
in your initial proposal will be an important part of your
economic package. You also made it abundantly clear that
your preference for a retirement vehicle would be a union-
sponsored defined pension plan, not the Company’s
401(k) Plan. At this time we have no idea of the what
(sic) the ultimate cost for this would be at Desert Toyota,
nor do we know where the parties will end up in regards to
agreements regarding wages, bonus plans, insurance and
other fringe benefits. It is possible—when everything said
(sic) is said and done—that the union might choose to ac-
cept a final agreement that has higher wages and inclusion
of union-sponsored pension and drop any demands you
might have regarding the inclusion of the corporate 401(k)
Plan. Under those circumstances, it does not make a lot of
sense to take a lot of valuable time to address the minimal
issue of the employer match.
However, despite the above my offer to take this issue
and discuss out of order still stand and I am more than
willing to do this at our next negotiations beginning
April 20th.
The exchange of letters continued when on April 11 Whitaker
wrote to Gonzalez. Whitaker stated:
In your April 6, 2005 letter, you have also invented a story re-
garding some November 9 letter that you state I showed you
during the Desert Toyota November 2004 negotiations, and
that this communication was addressed to all employees par-
ticipating in the Company 401(k) Plan. Mr. Gonzalez, this
Fairy Tale of yours is a lie, and you know it is untrue. I was
not aware of any unilateral changes to the Company 401(k)
Plan until you mentioned it to me at our Power Ford Torrance
negotiation session of November 30, 2004, and even then
your inference regarding this unilateral change was only given
to me verbally by you and Regional HR Director Peter Vano.
I never discussed this with you before this time, and I have
never seen a November 9th communication you refer to in
your recreation of the facts.
Whitaker went on to recount the events of November 30 and
after as they pertained to the 401(k) matter. He also asked that
he be provided with any and all plan documents that “demon-
strate the changes from IRS Form 5500, the summary plan
description booklet, as well as any other pertinent documenta-
tion. I will expect this request to include like information for
both Desert Toyota and Power Ford Torrance bargaining units.”
DESERT TOYOTA 115
At some unspecified time a bargaining unit employee gave
Whitaker a document dated April 7 entitled “AutoNation
401(k) Plan Update.” The document indicates that the plan was
amended on January 1 to change the company match and to
allocate certain plan expenses to participants. It indicates that
the plan amended effective March 28 to “change the automatic
pay-out provisions. There have also been changes in the ad-
ministrative processes involved in the Plan.”7 The document
summarizes all these changes.
On April 22, Respondent presented the Union with its eco-
nomic proposal. In that proposal Respondent offered to con-
tinue to offer its 401(k) plan for bargaining unit employees,
subject to the terms and conditions of the plan. As part of its
proposal Respondent reserved the right to modify the terms and
conditions of the Plan, as needed.
C. Credibility Resolutions
The first major factual issue to be resolved is whether
Whitaker had a copy of the November 9 letter by the time of
the November 30 meeting. As indicated above, in the April 6
letter Gonzalez contended that Whitaker showed him the No-
vember 9 letter at the November 30 meeting. Despite the claim
in this letter, at the hearing Gonzalez did not testify that
Whitaker showed him the letter at that meeting, nor do his
notes for the meeting so indicate. Nor did Gonzalez explain
how he came to make that assertion in the April 6 letter. In-
stead, Gonzalez testified that when he announced that there
would be a change in AutoNation’s 401(k) plan Whitaker
seemed very surprised. Such a reaction by Whitaker is totally
inconsistent with the statement Gonzalez later made in the
April 6 letter that Whitaker already had the November 9 letter
with him at this meeting. I conclude that this assertion was
wholly manufactured by Gonzalez to create a basis to support
the legal position that it was unnecessary to provide that No-
vember 9 letter to the Union because the Union already had it.
Despite the fact that Gonzalez’ false assertion in the April 6
letter was not made under oath I conclude that it seriously un-
dermines Gonzales’ credibility because it shows a propensity to
create facts to support a legal theory. In its brief Respondent
argues: “According to Gonzalez, Whitaker was aware of a
document (dated November 9, 2004) that had been dissemi-
nated to Power Ford employees by AutoNation, Inc. regarding
the proposed change.” To support this assertion Respondent
refers to page 191 of the transcript. There Gonzalez testified
concerning the November 30 meeting and that after he an-
nounced the impending changes to the 401(k) plan Whitaker
replied by saying “that in his opinion it was a unilateral change
to a material condition of employment. It was something we
had to negotiate over and was I aware that there was a prior
communication already sent out. And, you know, again, he just
reiterated that in his opinion this was a material change that had
to be negotiated over. It could not be unilateral and imple-
mented.” Earlier, however, Respondent’s counsel asked Gon-
zalez whether anyone at the November 30 meeting indicated
that there was a document concerning the 401(k) changes and
Gonzalez answered “No.” In any event, to the extent that the

7 There is no allegation in the complaint concerning these changes.
passing reference to a prior communication can be interpreted
as meaning that Whitaker already had seen the November 9
letter, I do not credit Gonzalez’ testimony on this point for
reasons previously stated as well as his testimonial inconsis-
tency on this point. In a footnote, Respondent contends “In
fact, Gonzalez had not even seen the November 9 document
until Whitaker showed it to him during the meeting on Novem-
ber 30.” In support of these assertions Respondent directs me
to pages 189–190 and 216–217 of the transcript. However,
nothing whatsoever in those pages of the transcript supports the
contention that Whitaker showed the November 9 letter to
Gonzalez at the November 30 meeting. Respondent’s counsel
is reminded that factual assertions made in a brief must accu-
rately refer to evidentiary support in the record.
The next factual dispute is whether Whitaker requested in-
formation at the November 30 meeting. Although neither Gon-
zalez nor Holt admitted that Whitaker requested information at
this meeting, Respondent in its brief concedes “Gonzalez
agrees that Whitaker told him that he wanted to receive all
documents relating to the 401(k) change in match amount.” I
therefore credit Whitaker’s testimony concerning the request
for information made at this meeting. Respondent does, how-
ever, contend that Whitaker never asked to bargain over the
changes in the 401(k) plan. In support of this assertion Re-
spondent vigorously challenges the veracity of a portion of
Whitaker’s bargaining notes for November 30. In particular,
Respondent attacks the note above the “squiggly line” that indi-
cates that Whitaker told Gonzalez that he wanted to receive all
documents as soon as possible and that Respondent must nego-
tiate before it could make the changes. Without going into
detail, Respondent makes a serious challenge as to whether that
portion of the notes was added later as an afterthought. But I
find it unnecessary to rely on that portion of the notes to con-
clude that Whitaker requested bargaining. Above the chal-
lenged portion of the notes another note indicates “Told [Gon-
zalez] should be no change to 401(k) plan until nego.” And
even more importantly, yet ignored by Respondent in its brief,
as quoted in the preceding paragraph Gonzalez admitted that
Whitaker demanded to bargain before the changes were made.
Accordingly, I conclude that Whitaker requested bargaining
before any changes were made to the 401(k) plan.
Next, I need to resolve whether Whitaker requested informa-
tion during the December 7, 8, and 9 bargaining sessions in-
volving Respondent and the Union. Remember, Whitaker had
thus far only requested information at the Power Ford bargain-
ing session on November 30. Whitaker testified on direct that
at some point during these negotiations he told Gonzalez that
he was as concerned about the 401(k) plan at Respondent as he
was at Power Ford and that Gonzalez replied that he under-
stood. Even if credited, this is hardly a clear request for infor-
mation. On cross, Whitaker claimed that “I was talking to
[Gonzalez] about specifically was trying to get the information
that I had already requested and that—that obviously AutoNa-
tion 401(k) plan—the AutoNation 401(k) plan is, as I under-
stood it, going to create the same problem at Desert Toyota as it
did at Power Ford.” This testimony, taken literally, makes no
sense because Whitaker had been provided the 401(k) plan
months before. Although Whitaker took notes at this bargain-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
ing session, the General Counsel did not offer them to corrobo-
rate Whitaker’s testimony concerning any request for informa-
tion. I note that in his January 26 letter Whitaker set forth in
detail the factual history of this case up to that point; the letter
made no reference to any request for information at the De-
cember bargaining sessions. Gonzalez and Holt both testified
that Whitaker did not raise the 401(k) matter at this meeting;
their bargaining notes also make no reference to Whitaker rais-
ing this matter at these negotiating sessions. For these reasons I
conclude that no request for information was made at the De-
cember bargaining sessions.
D. Analysis
1. Refusal to provide information
Upon request, an employer must provide a union with infor-
mation that is relevant and necessary for the union to perform
its obligations as the collective-bargaining representative of the
employees. NLRB v. Acme Die Casting Co., 385 U.S. 432
(1967). The information must be provided to the union in a
reasonable period of time. Mary Thompson Hospital, 296
NLRB 1245, 1250 (1989); Consolidated Coal Co., 307 NLRB
69 (1992).
Before turning to the allegations in the complaint, I address
the matter of the November 9 letter. It is important to note that
there is no allegation that Respondent unlawfully refused to
provide this letter to the Union. Even after the hearing ended
the General Counsel did not move to amend the complaint to
cover this allegation. In a footnote in his brief the General
Counsel states:
The Complaint alleges only that Respondent delayed in pro-
viding the Union with information it requested. However,
notwithstanding Gonzalez’ letter of April 6, General Counsel
did not know that there was a November 9, 2004, letter that
Respondent failed to provide the Union. That letter is clearly
encompassed by the Union’s information request of Novem-
ber 30, 2004, and the Respondent’s failure to produce it
should be found to be a separate violation.
But the General Counsel fails to address the issue of how he
has satisfied his due process burden owed Respondent; I will
not undertake that mission for him. Accordingly, I decline the
invitation to find that a separate violation concerning the No-
vember 9 letter.
The complaint alleges that on November 30 the Union ver-
bally requested all documents pertaining to any proposed
changes to the 401(k) plan and that Respondent unlawfully
delayed in providing that information until January 25, when
Gonzalez mailed the information to Whitaker. Specifically, in
his brief the General Counsel argues Respondent unlawfully
delayed providing the December 22 letter to the Union. On the
one hand, turning over a single document should not take much
time. One the other hand, Respondent had to obtain the docu-
ment from AutoNation. Also, the holidays occurred during
delay period. Under these circumstances the delay of about 5
weeks does not rise to the level of an unfair labor practice.
King Soopers, Inc., 344 NLRB 838, 840 (2005), cited by the
General Counsel, is distinguishable in at two respects. There,
the parties had agreed that information requested by the union
should be provided in 2 weeks; here, there is no such agree-
ment. There the respondent did not provide all of the informa-
tion until 14 weeks after the request; here, the delay was about
5 weeks. I shall dismiss this allegation of the complaint.
The complaint next alleges that on January 13 the Union
verbally requested all documents pertaining to any changes to
the 401(k) plan and that Respondent unlawfully delayed in
providing that information until January 25, when Gonzalez
mailed the information to Whitaker. I have dismissed the alle-
gation described in the preceding paragraph concerning the
December 22 letter. It follows that this allegation too should be
dismissed.
The complaint also alleges that on January 26 the Union, by
letter, requested that Respondent furnish it with the information
described in the preceding two paragraphs that Respondent
unlawfully delayed in providing that information until January
25, when Gonzalez mailed the information to Whitaker. Re-
spondent describes this allegation as “frivolous.” I agree and
shall dismiss it.
Finally, the complaint alleges that on February 23 and March
7, the Union by letter, requested that Respondent provide in-
formation concerning the 2005 contributions paid by Respon-
dent to match the employees’ contributions to the 401(k) plan
and that Respondent unlawfully delayed providing that infor-
mation until March 24. Here again the delay of about 4 weeks
is not so long, without more, to automatically lead to the con-
clusion that a violation has occurred. As above, Respondent
did not possess the information at its own disposal but had to
obtain the information from its parent company AutoNation. I
shall dismiss these allegations also.
2. Unilateral changes
An employer may not make changes in terms and conditions
of employment of unit employees without first giving a union
notice and an opportunity to bargain. Generally an employer
may implement the changes after bargaining in good faith with
the union and after having reached an impasse in the bargain-
ing. NLRB v. Katz, 369 U.S. 736 (1962).
The facts show that on January 1, the matching contribution
for employees enrolled in the 401(k) plan were reduced. In its
brief Respondent concedes that a 401(k) benefit plan is term of
employment that generally requires bargaining with a union
before it can be changed. Respondent also added fees that em-
ployees would have to pay for using the 401(k) plan.8 I have
also concluded that Whitaker insisted that Respondent first
bargain with it before it made changes in the 401(k) plan yet
Respondent, instead of bargaining with the Union, proceeded
nonetheless to change the plan. Normally, these facts would
point to a clear violation of the Act. Lakeside Health Center,
340 NLRB 397 (2003). Moreover, the plan was changed be-
fore Respondent provided the Union with information that it
had requested. Decker Coal Co., 301 NLRB 729 (1991).
But Respondent makes several arguments in an effort to es-
cape liability. The first and only argument that I need to ad-

8 Although alleged in the complaint, the General Counsel, Respon-
dent, and the Union do not mention this matter at all in their briefs. So
the issue of assessment of fees against terminated employees, as op-
posed to employees still working, is not addressed.
DESERT TOYOTA 117
dress is that the General Counsel failed to name the proper
party as Respondent because it was AutoNation, and not Re-
spondent, that initiated the changes to the 401(k) plan. As the
facts show, the bargaining obligation runs to Respondent and
not AutoNation. It is also clear that AutoNation made the deci-
sion to implement the changes in the plan. Although AutoNa-
tion is the parent corporation of Respondent, it is a separate
legal entity. Also, there is no allegation in the complaint that
Respondent and AutoNation are a single employer and the
General Counsel does not argue in his brief that they are. De-
spite the fact that Respondent clearly indicated that this was an
issue at the hearing, the General Counsel in his brief does not
address it; he merely equates AutoNation with Respondent.
However, it is not so obvious to me why AutoNation and Re-
spondent should simply be considered the same legal entity. In
Exxon Research & Engineering Co., 317 NLRB 675 (1995),
the judge concluded that the named respondents, all of whom
were subsidiaries of a parent corporation who was not named as
a respondent, violated Section 8(a)(5) of the Act when unilat-
eral changes were made to a thrift plan. However, the judge
declined to order affirmative relief for the violation because he
concluded that the named respondents had no power whatso-
ever to rescind the changes and that such relief required action
by the trustees of the plan or by the parent corporation, neither
of whom were named in the complaint. The Board affirmed the
violation but reversed the judge on the remedy. The Board
ordered the named respondents to rescind the changes to the
thrift plan, reinstate the previously existing conditions, and
make the employees whole. The Board indicated that this was
the traditional remedy for unilateral changes and left the matter
for compliance, but it did not otherwise give a rationale on this
issue. The Board’s finding was reversed in Exxon Research &
Engineering Co., v. NLRB, 89 F.3d 338 (5th Cir. 1996). The
Court concluded that the evidence did not show that the named
respondents implemented the changes to the thrift plan but
rather those changes were implemented by the trustees or the
parent corporation who were not named in the complaint. In
my view the Board’s decision in Exxon does not provide a ra-
tionale to conclude that Respondent violated the Act concern-
ing the changes made to the 401(k) plan where the evidence is
clear that AutoNation, and not Respondent, required that the
changes be made and there is no evidence that Respondent had
the authority to defy AutoNation on this matter. As indicated
above, the General Counsel also fails to articulate a rationale.
Under these circumstances I shall dismiss this allegation in the
complaint also.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The complaint is dismissed.

9 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.