Frank Leta Honda

National Labor Relations Board - Board Decisions

Jun 17, 1996

321 N.L.R.B. 482 (N.L.R.B. 1996)

482
321 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 We adopt the judge’s finding that the Respondent violated Sec.
8(a)(3) and (5) of the Act by instituting a wage freeze in 1993. We
also agree with the judge that, as part of this freeze, the Respondent
unlawfully discontinued its practice of reviewing employees’ per-
formance and considering them for wage increases after 60 to 90
days of employment, and annually on their anniversary dates. How-
ever, because the record establishes that employees did not automati-
cally receive increases upon these reviews, we leave to compliance
the issue of what increases, if any, employees would have received
had these reviews been timely made.
3 In its cross-exceptions the General Counsel contends that the
judge erroneously omitted from his conclusions of law, proposed
Order, and notice, several violations he found in his analysis. We
agree and have set forth the requested modifications.
4 Dwiggins testified that the three employees stood around for con-
siderably longer. However, the judge generally credited the em-
ployee witnesses and found Dwiggins’ testimony to be self-serving,
implausible, and untrustworthy, and did not credit it over that of the
General Counsel’s witnesses.
5 The fact that nonstriker Cook was also disciplined does not un-
dercut these violations. See, e.g., Alliance Rubber Co., 286 NLRB
645, 647 (1987).
Frank Leta Honda and District 9, International As-
sociation of Machinists and Aerospace Work-
ers, AFL–CIO. Cases 14–CA–23169, 14–CA–
23318, 14–CA–23501, and 4–CA–23575
June 17, 1996
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On October 10, 1995, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting brief
and the General Counsel filed cross-exceptions and a
supporting brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions, to adopt the recommended Order as modified
and set forth in full below,3 to modify the remedy, and
to issue a new notice.
The General Counsel filed cross-exceptions, con-
tending that the judge inadvertently failed to make any
findings or conclusions regarding Parts Manager
Dwiggins’ October 12, 1994 verbal warning to em-
ployees Kevin M. Farley and Erik Smith. The General
Counsel contends that this warning violated Section
8(a)(3) and (1) of the Act. For the following reasons,
we agree.
Paragraph 6(e) of the fourth consolidated complaint
alleges that the Respondent unlawfully issued a verbal
warning to Farley and Smith on October 12. This alle-
gation was fully litigated at the hearing. Thus, the
record establishes that within days after strikers Smith
and Farley returned to work, Dwiggins instructed
them, and a third employee, Cook, that they needed to
stay busy. The three had been idle for about 5 minutes
during a lull in work.4
When speaking to the three employees, Dwiggins
did not inform them that they were being disciplined.
However, Dwiggins thereafter recorded the incident in
his notepad as a ‘‘verbal warning’’ and left the
notepad open on his desk for several weeks where it
was observed by various employees, including Smith
and Farley.
The record further establishes that Farley and Smith
were disparately treated in this regard. Before the
strike, employees were not disciplined for being idle
during work lulls. Further, Dwiggins admitted that he
had not recorded other instances where he had ob-
served employees standing around; instead, he merely
gave the employees ‘‘friendly reminders.’’
Based on: (1) the disparateness of the October 12
warning; (2) its issuance promptly after the strike
ended; and (3) statements by Dwiggins and another
manager to replacement employees the previous week
that the Respondent intended to ‘‘abide by the rules’’
in order to find ways to discharge the returning strik-
ers, we agree with the General Counsel and find that
the October 12 warning violated Section 8(a)(3) and
(1).5
CONCLUSIONS OF LAW
1. The Respondent is an Employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining is:
All regular full-time and part-time service depart-
ment employees employed by the Employer at its
St. Charles Rock Road, St. Louis, Missouri facil-
ity, EXCLUDING sales people, office clerical and
professional employees, guards, and supervisors
as defined in the Act.
4. Since being certified on June 21, 1993, the Union
has been, and is, the exclusive representative of the
Unit for purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By impliedly promising a promotion if an em-
ployee refrained from supporting a strike; promising
employees wage increases if they did not strike; imply-
ing that there would be a wage increase if the Union
483FRANK LETA HONDA
6 The General Counsel excepted to the judge’s proposed remedy
and requested that the Board set forth with greater specificity the
manner in which the Respondent must make whole employees for
any losses they suffered as a result of its unlawful acts. We grant
this cross-exception, and modify the remedy.
were decertified and stating that there was a decerti-
fication petition in a supervisor’s office that they could
sign; telling employees that pay increases were frozen
because of contract negotiations or because employees
supported the Union; threatening to rescind an employ-
ee’s wage increase if the wage increase issue was pur-
sued; telling an employee that those who went out on
strike would lose their jobs; telling an employee that
the general manager was not pleased that the employee
had joined the Union; threatening an employee with
job loss and threatening unspecified reprisals against
union troublemakers if they went on strike; telling em-
ployees that they could not get their vacation pay be-
cause of the strike; telling replacement employees that
rules would be strictly enforced so that returning strik-
ers would be fired; telling nonstriking employees that
strikers were idiots and that management could not
wait to get rid of them; instructing strike replacements
to report alleged harassment by returning strikers; and
interrogating an employee about his receiving a Board
subpoena, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed them by Section 7 of the Act, and
thereby has engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
6. By discriminatorily changing terms and conditions
of employment and taking disciplinary action by re-
ducing employee wages; delaying and denying timely
receipt of employees’ vacation pay; granting pay in-
creases to nonstriking employees; demoting or giving
different and less desirable positions and duties to re-
turning strikers; eliminating or reducing the bonus and
billing benefits and commission plans previously en-
joyed by returning strikers; imposing and enforcing a
stricter no-smoking policy and other rules; restricting
the use of computers; issuing written and verbal warn-
ings; failing to reinstate strikers to their former posi-
tions; denying increases for promotions; and by fol-
lowing practices which reduced the earnings of return-
ing strikers, because of and in retaliation for engaging
in a union strike or other protected concerted activities,
the Respondent has violated Section 8(a)(3) and (1) of
the Act.
7. By unilaterally making changes in terms and con-
ditions of employment after the certification of the
Union as the collective-bargaining representative of the
unit employees without notice to or bargaining with
the Union, including imposing a wage freeze contrary
to past practice; granting wage increases for new job
classifications; expanding and enforcing a no-smoking
policy; implementing new safety rules; withdrawing an
employee’s job promotion wage increase; granting se-
lective increases in amounts exceeding those proposed
to the Union in negotiations; changing bonus and rate
billing practices; increasing the number of employees
by retaining replacement workers and dividing the
available work among more people with a resulting de-
crease in real wages; implementing its final offer with-
out a valid impasse having been reached; changing em-
ployee parking to a less desirable location; changing
employee uniform and visitor rules; and imposing re-
strictions on employees holding second jobs and per-
forming repair work on their own time, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
REMEDY6
Having found that the Respondent has violated Sec-
tion 8(a)(1), (3), and (5) of the Act, we shall order it
to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Specifically, we will order the Respondent to:
1. Make whole with interest employee Phillip J.
Seymour for any loss of earnings Seymour incurred as
a result of the Respondent’s unlawful reduction of his
wages in July 1994.
2. Make whole with interest employees Paul L.
Bunfill and Erik Smith for any loss of earnings they
incurred as a result of the Respondent’s unlawful fail-
ure to pay them vacation pay due in August 1994.
3. Make whole with interest employees Tony
Spenard, Phillip J. Seymour, and Gerald E. Motta for
any loss of earnings they suffered as a result of being
unlawfully demoted by the Respondent.
4. Make whole with interest all mechanics for any
loss of earnings they suffered as a result of the Re-
spondent’s unlawful elimination of its ‘‘scratch-off
bonus’’ program.
5. Make whole with interest employee James Hill
for any loss of earnings he suffered as a result of the
Respondent’s unlawful elimination of the four-tenths
of a billable hour credit for performing road tests.
6. Make whole with interest employee Kevin M.
Farley for any loss of earnings he incurred as a result
of the Respondent’s unlawful elimination of his com-
mission bonus.
7. Make whole with interest all mechanics for any
loss of earnings they suffered as a result of the Re-
spondent unlawfully increasing the number of mechan-
ics it employed after the unfair labor practice strike,
thereby reducing the flat-rate hours and earnings of the
other mechanics.
8. Make whole with interest all mechanics for any
loss of earnings they suffered as a result of the Re-
spondent’s unlawful reduction in the flat rate awarded
for predelivery inspection (PDI) work.
9. Make whole with interest all service advisors for
any loss of earnings they suffered as a result of the
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent’s unlawful change in their bonus plan in
March 1995.
10. Make whole with interest all employees for any
loss of earnings they incurred as a result of the Re-
spondent’s unlawful wage freeze in June 1993. That
includes, but is not limited to, granting mechanics the
bonus received in August 1993 by employees covered
by the Union’s association agreement; granting me-
chanics the 35-cent-per-hour wage increase granted in
August 1994 to mechanics covered by the Union’s as-
sociation agreement; implementing, retroactive to Au-
gust 1993, the new premium pay plan covered in the
Union’s association agreement; granting porters and
parts employees any increases they would have re-
ceived on their annual, anniversary date reviews; grant-
ing employees increases due on their promotion to new
higher paying jobs, including but not limited to pro-
motions granted Dale Parker, Gerald E. Motta, and
Tony Spenard; and any increases due employees as a
result of their 60- or 90-day reviews.
The foregoing employees are to be made whole for
any loss of earnings and other benefits suffered as a
result of the Respondent’s unfair labor practices as
specified in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Because the Respondent has engaged in extensive
and pervasive illegal practices—commencing at the
outset of bargaining—and has encouraged employees
to decertify the Union, we extend the certification year
for 12 months as provided in Thill, Inc., 298 NLRB
669 (1990). Additionally, because the Respondent’s
unlawful conduct was egregious and widespread, and
demonstrated a general disregard for employees’ statu-
tory rights, we find that a broad Order is warranted.
Hickmott Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth in full below, and orders that
the Respondent, Frank Leta Honda, Bridgeton, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of rights guaranteed in Section
7 of the Act by impliedly promising a promotion if an
employee refrained from supporting a strike; promising
a wage increase if employees did not strike; implying
that there would be a wage increase if the Union were
decertified and stating that there was a decertification
petition in a supervisor’s office that they could sign;
telling employees that wage increases were frozen be-
cause of contract negotiations or because employees
supported the Union; threatening to rescind an employ-
ee’s wage increase if the wage-increase issue was pur-
sued; telling an employee that those who went out on
strike would lose their jobs; telling an employee that
the general manager was not pleased that the employee
had joined the Union; threatening an employee with
job loss and threatening unspecified reprisals against
union troublemakers if they went on strike; telling em-
ployees that they could not get their vacation pay be-
cause of the strike; telling replacement employees that
rules would be strictly enforced so that returning strik-
ers could be fired; telling nonstriking employees that
strikers were idiots and that management could not
wait to get rid of them; instructing strike replacements
to report harassment by returning strikers; and interro-
gating an employee about his receiving a Board sub-
poena.
(b) Discriminatorily changing terms and conditions
of employment and taking disciplinary action by re-
ducing employee wages; delaying and denying timely
receipt of employees’ vacation pay; granting pay in-
creases to nonstriking employees; demoting or giving
different and less desirable positions and duties to re-
turning strikers; eliminating or reducing the bonus and
billing benefits and commission plans previously en-
joyed by returning strikers; imposing and enforcing a
stricter no-smoking policy and other rules; restricting
use of computers; issuing written and verbal warnings;
failing to reinstate returning strikers to their former po-
sitions; denying increases for promotions; and follow-
ing practices which reduced the earnings of returning
strikers because of or in retaliation for their engaging
in a union strike or other protected concerted activities.
(c) Making unilateral changes in terms and condi-
tions of employment after the certification of the
Union as the collective representative of the unit em-
ployees without notice to or bargaining with the
Union, with respect to imposing a wage freeze con-
trary to past practices; granting wage increases for new
job classifications; expanding and enforcing a no-
smoking policy; implementing new safety rules; with-
drawing an employee’s job promotion wage increase;
granting selective increases in amounts in excess of
those proposed to the Union in negotiations; changing
bonus and rate billing practices; increasing the number
of employees by retaining replacement workers and di-
viding the available work among more people with a
resulting decrease in real wages; implementing its final
offer without a valid impasse being reached; changing
employee parking to a less desirable location; changing
employee uniform and visitor rules; and imposing re-
strictions on employees holding a second job and per-
forming repair work on their own time.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
485FRANK LETA HONDA
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful
warnings given to employees Paul Huffmon, Kevin M.
Farley, and Erik Smith, and within 3 days thereafter
notify the employees in writing that this has been done
and that the warnings will not be used against them in
any way.
(c) On request of the Union rescind all or part of
the unilaterally made changes in terms and conditions
of employment and retroactively restore preexisting
terms and conditions of employment and, on request,
bargain in good faith with the Union as the exlusive
bargaining agent of the above appropriate unit of its
employees with respect to their wages, hours, and
other terms and conditions of employment and embody
any understanding reached in a signed agreement.
(d) Recognize the Union on resumption of bargain-
ing in good faith and for 12 months thereafter as if the
initial certification year had not expired.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its Bridgeton, Missouri, facility copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since June 1, 1993.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
them by Section 7 of the Act, by impliedly promising
a promotion if an employee refrained from supporting
a strike; promising wage increases if employees did
not strike; implying there would be a wage increase if
the Union were decertified and stating that there was
a decertification petition in a supervisor’s office that
they could sign; telling employees that wage increases
were frozen because of contract negotiations or be-
cause employees supported the Union; threatening to
rescind an employee’s wage increase if the wage in-
crease issue was pursued; telling an employee that
those who went out on strike would lose their jobs;
telling an employee that the general manager was not
pleased that the employee had joined the Union; threat-
ening an employee with loss of his job and threatening
unspecified reprisals against union troublemakers if
they went on strike; telling employees that they could
not get their vacation pay because of the strike; telling
replacement employees that rules would be strictly en-
forced so that returning strikers would be fired; telling
nonstriking employees that strikers were idiots and that
management could not wait to get rid of them; in-
structing strike replacements to report harassment by
returning strikers; and interrogating an employee about
his receiving a Board subpoena.
WE WILL NOT discriminate or retaliate against em-
ployees for selecting the Union as their collective-bar-
gaining representative or for engaging in a strike or
other protected concerted activity, by discriminatorily
changing terms and conditions of employment and tak-
ing disciplinary action by reducing employee wages;
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994 unless otherwise indicated.
2 After submitting her motion to amend the transcript, General
Counsel noticed that the May 17 consolidated complaint inadvert-
ently skipped from par. 9B to 9D. Paragraph 9C should be the exact
same paragraph which appeared in the April 28, 1995 consolidated
complaint, G.C. Exh. 1(kk).
delaying and denying timely receipt of employees’ va-
cation pay; granting pay increases to nonstriking em-
ployees; demoting or giving different and less desir-
able positions and duties to returning strikers; eliminat-
ing or reducing the bonus, billing benefits, and com-
mission plans previously enjoyed by returning strikers;
imposing and enforcing a stricter no-smoking policy
and other rules; restricting use of computers; issuing
written and verbal warnings; failing to reinstate return-
ing strikers to their former positions; denying increases
for promotions; and following practices which reduced
the earnings of returning strikers.
WE WILL NOT make unilateral changes in terms and
conditions of employment affecting unit employees
without notice to or bargaining with the Union, with
respect to imposing a wage freeze contrary to past
practice; granting wage increases for new job classi-
fications; imposing and enforcing a stricter no-smoking
policy; implementing new safety rules; withdrawing an
employee’s job promotion wage increase; granting se-
lective increases in amounts exceeding those proposed
to the Union in negotiations; changing bonus and bill-
ing practices; increasing the number of employees by
retaining replacement workers and dividing the avail-
able work among more people with a resulting de-
crease in real wages; implementing our final offer
without a valid impasse being reached; changing em-
ployee parking to a less desirable location; changing
employee uniform and visitor rules; and imposing re-
strictions on employees holding second jobs and per-
forming repair work on their own time.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make employees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of this decision.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the warnings given Paul Huffmon, Kevin M. Farley,
and Erik Smith and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done
and that the discharges will not be used against them
in any way.
WE WILL, on request of the Union, rescind all or
part of the unilaterally made changes in terms and con-
ditions of employment and, on request, bargain in
good faith with the Union as the exclusive bargaining
agent of the following employees with respect to their
wages, hours, and other terms and conditions of em-
ployment and embody any understanding reached in a
signed agreement:
All regular full-time and part-time service depart-
ment employees employed by us at our St.
Charles Rock Road, St. Louis, Missouri facility,
EXCLUDING sales people, office clerical and pro-
fessional employees, guards, and supervisors as
defined in the Act.
WE WILL recognize the Union on resumption of bar-
gaining in good faith and for 12 months thereafter as
if the initial certification year had not expired.
FRANK LETA HONDA
Dorothy D. Wilson, Esq., for the General Counsel.
Robert B. Vining Jr., Esq., of Clayton, Missouri, for the Re-
spondent.
Tony Rippeto, of Bridgeton, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in St. Louis, Missouri, on May 22–25,
1995. Subsequently briefs were filed by the General Counsel
and the Respondent. The proceeding is based upon an initial
charge filed August 8, 1994,1 as subsequently amended, by
District 9, International Association of Machinists and Aero-
space Workers, AFL–CIO. The Regional Director’s consoli-
dated complaint dated May 17, 1995, alleges that Respondent
Frank Leta Honda of Bridgeton, Missouri violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act by
interfering with employee rights and engaging in numerous
activities including the imposition of a wage freeze, threats
and promises of benefits, interrogations and encouragement
of a decertification petition, demotion and warning of em-
ployees, changing duties and terms and conditions of em-
ployment without bargaining, and by failing and refusing to
reinstate striking mechanics to their former terms and condi-
tions of employment because employees had engaged in
union and concerted activities.
Subsequent to the hearing the General Counsel moved to
correct the transcript and to amend the consolidated com-
plaint further based on the evidence adduced at hearing. The
Respondent also moved to reopen the record to admit certain
documents relating to an additional charge filed against Re-
spondent. The General Counsel opposes Respondent’s motion
to reopen and contends that the documents are not relevant
to the issues in these cases.
The motion to correct the transcript is granted and re-
ceived into evidence as General Counsel’s Exhibit 80. The
motion to amend the complaint is based on matters that were
fully litigated and it is therefore granted.2 The matters sought
to be introduced by the Respondent relate to a new charge
under investigation referred to during the hearing by the
General Counsel. The matters sought to be introduced reflect
the charge and the disposition of the matter (no complaint
was issued). They will be received only for the purpose of
487FRANK LETA HONDA
3 Unless otherwise noted, all following references will relate to the
Honda location only.
reflecting the filing and disposition and will be marked and
received as Respondent’s Exhibits 3, 4, and 5.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the retail sale and repair of
new and used automobiles and the sale of automobile parts
at its Bridgeton, Missouri facility, it has an annual gross rev-
enue in excess of $500,000; and it annually purchases and
receives goods and materials valued in excess of $50,000 di-
rectly from points outside the State of Missouri. It admits
that all times material it has been an employer engaged in
operations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s Bridgeton Honda facility, located in a
suburb of St. Louis, is owned by Frank Leta, who also owns
a nearby Acura dealership on Tesson Ferry Road. Jeff
Keesling is the general manager in charge of day-to-day op-
erations at both facilities. He has an office at both locations
and spends 55 percent of his time at the Honda dealership.3
It employs approximately 46 to 47 employees who comprise
a sales staff for new and used cars; an office staff, including
managers and clerical employees; and a service department
comprising technicians, service writers, parts employees, and
porters. Service Manager Rick Witges and Parts Manager
Jerry Dwiggins directly supervised the employees involved in
the events here.
In response to a union petition filed on April 19, 1993, an
election was held on June 11, 1993. The Union won the elec-
tion by a vote of 17 to 4 and on June 21, 1993, it was cer-
tified as the collective-bargaining representative of the fol-
lowing unit of Respondent’s employees:
All regular full-time and part-time service department
employees employed by the Employer at its St. Charles
Rock Road, St. Louis, Missouri facility. EXCLUDING
sales people, office clerical and professional employees,
guards, and supervisors as defined in the Act.
Prior to this certification, Respondent’s employees had not
been represented by a union, however, since 1988, Respond-
ent had been paying its mechanics the same wages paid by
competitors under the terms of the Standard Automotive
Agreement established in negotiations between the Union
and the Area Automotive Association.
Subsequent to the certification and a Union request for
certain information, negotiations between Respondent and the
Union bargain July 19, 1993. Union Negotiator David
Meinelli proposed that Respondent agree to a 1-year contract
based on the expiring agreement with the Greater St. Louis
Automotive Association that Respondent had been following
with regard to wage increases. The Respondent declined and
the parties agreed to postpone further negotiations until nego-
tiations were completed with the association for a new agree-
ment. A new association agreement was reached in early Au-
gust 1993; however, the next meeting was not held until Oc-
tober 26, 1993. The Union presented a proposal which con-
sisted of the new association agreement and an addendum
which would address terms and conditions of employment
for the parts employees who were not covered in the associa-
tion agreement. The meeting adjourned so that Respondent
could review the documents. On November 8, 1993, the par-
ties met again and went through the new association agree-
ment article by article. Respondent agreed to some articles
as written, proposed alternative language to some articles,
and proposed deleting other articles. The parties met again
on January 25, and February 25, and discussed vacation and
seniority issues and the Union gave Respondent another pro-
posed addendum. The meeting on January 25 included an
agreement on the number and identification of holidays as
well as the holiday language by the Union incorporated in
its Standard Automotive Agreement. In addition, the issue of
the number of weeks of vacation in section 5.2 under ‘‘Se-
niority,’’ was discussed. Although Meinelli did not recall a
meeting on February 17, Keesling, who participated in all of
the negotiating sessions for the Respondent testified that the
parties met again on that date at which time an agreement
was reached on the language incorporated in article 5.2.
At a meeting held on February 25, Respondent handed out
proposals on job descriptions and duties and proposed that
wages be increased by 25 cents in the first year and 35 cents
in the second and third years. The Union also proposed to
make the union benefits effective in 1-year increments, with
health insurance being effective immediately, and dental and
vision becoming effective in the second and third years re-
spectively, and continued its position on the various benefit
plans included in the Standard Area Agreement.
On April 12, the parties met again. The Company revised
it’s offer by increasing the first year a wage increase to 35
cents per hour effective ratification, maintaining the last 2
years at 35 cents per hour in each year. In addition, the
Company proposed a minimum hiring rate of $5.75 per hour
and a minimum rate of pay after 6 months of $6.25 per hour.
This was presented as Respondent’s written final offer. The
orally proposed wage increases of 35 cents per year of a 3-
year agreement contained no job classifications, descriptions,
or wage rates for any of the parts employees or porters, and
no changes in existing benefits.
Union Representative Meinelli was in a serious automobile
accident in June 1994, and was replaced as chief negotiator
by Union Representative Larry Smith, assisted periodically
by Union Organizer Tony Rippeto. At the next meeting held
on July 26, Union Representative Smith presented a new ad-
dendum which incorporated agreements reached by the par-
ties during the past negotiating sessions as well as a resub-
mission of its proposal on the parts department, service help-
er, utility employees, and the various benefit plans. The
Company indicated that its position given to the Union in
April remained unchanged and that it intended to implement
its offer.
During this period of negotiations after the certification of
the Union (until March 1995), none of the parts employees
received the normal increases expected on their anniversary
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dates. Three weeks after parts counterman Erik Smith did not
receive his expected pay increase in September 1993, Smith
asked his immediate supervisor, Parts Manager Jerry
Dwiggins, about it and Dwiggins replied that all raises were
frozen until something was done one way or the other with
the Union. Parts employee Paul Huffmon did not receive his
anniversary raise in January 1994, and he recalled that
Dwiggins had said before the election that if the Union was
voted in, he should not look for a raise at his next review.
Parts employee Kevin Farley also had an anniversary in Jan-
uary 1994 and received no increase or pay review.
Respondent also did not give wage increases to the porters
and mechanics. Service Manager Witges admits that he told
employees his authority to give increases was frozen because
of contract negotiations. Some individuals who were pro-
moted and normally would have received an increase in pay,
did not receive a pay increase. Respondent’s records indicate
that in July 1993, Dale Parker was promoted from used car
mechanic to a line technician but received no pay increase.
Used car technician Jerry Motta was hired in August 1993,
told that he would receive a 60-day review and possibly a
raise at that time, but received neither. The following June,
Motta was promoted from used car technician to line techni-
cian, but still received no pay increase as Witges explained
that wages were frozen because of contract negotiations.
The Respondent made an exception for employee Philip
Seymour and when Seymour changed from service porter to
new car porter effective June 13, he received a pay increase,
from $5.50 to $6.50 per hour. Manager Witges told Seymour
not to say aything about the increase to other employees.
Seymour testified that he asked if that was because of the
Union, and Witges nodded yes. Seymour told Parker about
the raise and in late June 1994, Parker testified that he asked
Witges about the wage situation and Witges responded that
wgaes were still frozen but that ‘‘this thing will be over in
a couple of weeks’’ and you’ll get your raise.
A few days before July 19, line technician Paul Bunfill
asked Witges whether employees were going to receive pay
increases on August 1 like they usually did and Witges ad-
mitted that he told Bunfill there was a freeze on all wages
because of the union negotiations. Parker testified that he
spoke to Witges again on July 19, and mentioned that Sey-
mour had received a pay increase. Witges replied that they
had decided ‘‘up front’’ to give Seymour a raise besides that
Seymour ‘‘didn’t sign a Union card.’’ Parker said he would
pursue getting a raise some other way and Witges said that
if Parker did that, they would have to take away Seymour’s
raise. Witges also said that ‘‘for the record’’ wages were still
frozen, but ‘‘off the record’’ Parker should talk to other em-
ployees about decertifying the Union. Witges testified that he
responded to Parker by telling him there were two ways to
resolve the wage freeze situation. One way was for an agree-
ment to be reached with the Union on a contract. The other
way was to petition to remove the Union.
Motta spoke to Witges later in the day on July 19, and
pointed out that he had never received his 60-day review and
wanted to know what was going on with raises. Witges told
him that ‘‘you and Dale (Parker) and others are deserving of
raises, but they are frozen right now.’’ Witges added that on
August 2, employees would take a strike vote and those who
wanted to remain with the company had a job and those who
did not were out on their own. Witges said that those who
remained with the Company would receive a pay raise and
that Respondent would make it worth their while. Sometime
after Witges’ conversation with Parker on July 19, General
Manager Keesling told Witges to withdraw Seymour’s pay
raise because of the negotiations with the Union, and Sey-
mour’s wage increase was withdrawn effective July 29.
During late July and early August, similar comments were
being made by Parts Manager Dwiggins to his employees. In
late July, parts employee Erik Smith testified that when he
returned from lunch Dwiggins told him there was a petition
over in Rick Witges’ office if Smith wanted to sign it. In
early August, Smith and Dwiggins had another conversation
and Smith testified that Dwiggins offered to make him assist-
ant manager of the parts department, with the pay Smith had
coming to him. Smith said he replied that if the employees
voted to go on strike he could not accept, but if they voted
to decertify the Union, he would accept the offer.
On August 2, the day of the scheduled union meeting to
vote on whether to go on strike, Witges spoke with Motta
out in the shop and asked him if he had any questions about
what was going to transpire that evening. Motta testified that
he responded by asking Witges what was going to transpire
at Witges’ end. Witges replied that those who showed up for
work the next day would have a job and those who did not
show up, would not, and said that, ‘‘there is a lot of people
who want to forget about the Union and get down to busi-
ness.’’ He then looked around the shop and said that it was
a shame that those who had the most to lose were causing
all the trouble.
On August 2, the Union held a meeting at which employ-
ees voted to authorize a strike to begin on August 9. Before
voting, they discussed how Parker and Motta had been told
by Witges that they would get raises if it were nor for the
Union in the shop. The Union and representatives explained
they thought that was unlawful and they thought the Com-
pany was trying to get rid of the Union any way they could
and that the Union planned to file unfair labor practice
charges against Respondent for the ongoing effort to get a
petition filed to decertify the Union.
A strike began on Tuesday, August 9, with all but five
employees participating. The next day, lube technician Mike
Roth returned to work and in late September technician Dale
Parker returned. The Respondent hired replacement employ-
ees including mechanics Cliff Garry, Rick George, Bill
Javarck, Aaron Jones, Scott Emke, and Tony Fanning; por-
ters Sam Brady and Mike Wyatt; and parts department em-
ployees Ken Savant, Lin Rowe, Jason Cook, and Rich Fisch-
er. It was not established whether these replacements were
told or understood they would be permanent.
After the strike began the Respondent changed its earlier
policy of not giving pay increases during negotiations and on
September 3, it increased the pay of used car porter Ron
Fowler from $6 to $7.50 an hour and lube technician Mike
Roth from $7 to $9 an hour and it asserts that this occurred
because Roth began performing line technician duties and
Fowler became a ‘‘used car inventory specialist.’’ Other por-
ters were told by Witges in early 1995, that because of his
seniority Fowler was made head porter, however, it was ob-
served that his duties did not change with the exception that
he would ask someone who was not busy to do something
that needed to be done.
489FRANK LETA HONDA
An unconditional offer to return to work on behalf of all
the striking employees was made by letter dated September
27. In response, the Respondent set up a meeting with the
Union on October 4, and it was arranged for the strikers to
return on Monday, October 10, after they contacted Respond-
ent by October 6 for their schedules. Otherwise, there was
no discussion with the Union about what would happen to
the replacements hired by Respondent during the strike.
Employees Parker and Sam Brady testified that on Friday,
October 7, Service Manager Witges had a meeting with the
replacement mechanics and porters regarding the strikers’ re-
turn to work. He said that the strikers were coming back and
the replacements would have to be real careful to adhere to
all the rules and do everything by the book because Witges
intended to find things they did wrong so he could fire them.
Parker also testified that Witges said for them not to be con-
cerned about the strikers coming back because they probably
would all be gone in 30 or 60 days anyway.
Witges announced that two of the mechanics, Scott Emke
and Tony Fanning would be transferred to the Leta Acura
store and told them not to worry, as soon as he got rid of
some of the strikers, they would be back. Witges also told
the replacements to be careful about what they said to the
strikers and not to be influenced by what the strikers said to
them. Witges said that if the strikers talked to them in a
harassing way, the replacements were to report that and the
strikers would be fired.
Parker also spoke with Parts Manager Dwiggins at the
parts counter and he testified that Dwiggins said that the
strikers were going to return but that everyone was going to
have to abide by the rules, or else, and that the Respondent
was going to crack down on moonlighting. New car porter
Brady also testified that Dwiggins said he thought the strik-
ers were idiots and that he could not wait to get rid of them.
When the strikers returned to work on October 10, they
faced a number of changes, none of which had been men-
tioned to the Union. These changes and other actions related
to the treatment and discipline of the former strikers are the
basis for numerous complaints alleged to constitute unfair
labor practices and they will be set forth in detail and evalu-
ated in the following discussion section of this decision.
III. DISCUSSION
The record shows that in June 1993, the Union became the
certified bargaining representative of the Respondent’s em-
ployees following a 17 to 4 vote. The parties engaged in bar-
gaining on numerous occasions, however, testimony indicates
that as time went on the employer began to anticipate the
possibility that the employees’ union sympathies might be
changed and it anticipated the further possibility of an em-
ployee decertification attempt (after the 1-year anniversary of
the certification), which would discharge its obligation to
continue negotiations with the Union. Instead, however, em-
ployees responded to the Respondent’s failure to grant ex-
pected wage increases during negotiations (and the failure to
reach an agreement), with a strike. Although the Respondent
thereafter recalled former strikers for whom the Union made
an unconditional offer to return to work, the recall was made
under unique conditions whereby the majority of employees
hired as strike replacements also remained on the job.
Here, the principal issues involve Section 8(a)(1) of the
Act and a number of statements by the Respondent’s super-
visors that allegedly threaten and otherwise restrain and
interfere with the employees Section 7 rights; Section 8(a)(3)
of the Act and the alleged retaliatory or disparate altering of
terms and conditions of work of and failing to completely re-
instate the strikers to their former positions; and Section
8(a)(5) of the Act and the freezing of wages and making of
unilateral changes in terms and conditions of work.
The recitation herein of factual statements are my factual
conclusions based on the demeanor of the various witnesses
and my evaluation of what is the most credible testimony.
In general, I conclude that although some of the General
Counsel’s employee witnesses had an imperfect recall of
some dates or details, they otherwise testified in a convinc-
ing, believable manner and in instances where testimony to
the contrary was placed on the record by the Respondent’s
witnesses (most specifically Managers Witges and
Dwiggins), I find the latter testimony to be self-serving, im-
plausible and untrustworthy and, I find that it should not be
credited over the testimony of the General Counsel’s wit-
nesses. This is especially true in the numerous situations
where the employee witnesses gave a narrative description of
the surrounding circumstances and the Respondent’s man-
agers gave bare denials that they had made the statements at-
tributed to them.
A. Alleged Violations of Section 8(a)(1)
On about April 13, employee Erik Smith told Manager
Dwiggins that everyone including Smith planned to join the
Union that day during lunch. Dwiggins asked Smith to wait
until Dwiggins could have a meeting with Keesling to see if
Dwiggins could get Smith into some sort of semi-manage-
ment position such as assistant manager or outside sales
manager so Smith would not have to join the Union. After
lunch, Dwiggins asked if Smith joined the Union. Smith re-
plied yes, and Dwiggins said nothing further until shortly be-
fore the strike began when Dwiggins then offered to make
Smith the assistant parts manager with the pay he had com-
ing to him. Smith replied that he could not accept if employ-
ees voted to go on strike, but if the employees voted to de-
certify the Union he would accept. Inasmuch as Dwiggins
admitted talking to Keesling about putting Smith in a dif-
ferent position if that was possible, I specifically credit
Smith’s testimony on this matter. I conclude in both in-
stances that Dwiggins statement impliedly promising a pro-
motion to Smith if Smith refrained from joining the Union
or supporting the strike and that it was unlawful in each in-
stance, see Family Foods, 300 NLRB 649, 662 (1990), and
I find that the Respondent is shown to have violated Section
8(a)(1) of the Act as alleged in paragraphs 5(a) and (I) of
the complaint.
As described in part II above, the record shows that Man-
ager Witges made statements to employees Seymour, Motta,
Paul Bunfill, and Parker to the effect that wages were frozen
because of the Union and also told Parker that if he pursued
the issue of Seymour’s being granted a raise despite the pol-
icy (because Seymour did not sign a union card), Seymour’s
raise would be rescinded.
Here, it is shown that employees received customary pay
increases and performance reviews according to regular, es-
tablished practices and by telling employees that pay in-
creases are frozen or are not being given to employees be-
cause of the Union or because of their support of the Union,
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or because of negotiations with the Union is unlawful, see
Harrison Ready Mix Concrete, 316 NLRB 242 (1995), and
Lamonts Apparel, 317 NLRB 286 (1995)
I also find that thereafter threatening to rescind Seymour’s
wage increase if the issue was pursued is also unlawful, Sun-
belt Mfg. Co., 308 NLRB 780, 784 (1992). Witges also told
Parker to get hold of some of the people who said they
wished the Union had never gotten started. and try to decer-
tify the Union. He then told Parker there were two ways to
resolve the wage freeze situation and get a wage increase.
One way was for an agreement to be reached with the Union
on a contract. The other way was to petition to remove the
Union. Implying that there would be a wage increase if the
Union were decertified is unlawful. See Caterair Inter-
national, 309 NLRB 869, 879 (1992), and I find that in each
instance the Respondent is shown to have violated Section
8(a)(1) of the Act as alleged in paragraphs 5(B) through (G)
of the complaint.
On July 19, when Motta spoke with Witges and was told
of the wage freeze due to contract negotiations, Witges also
said that when the employees took the strike vote and those
who wanted to remain with the Company had a job, and
those who did not would be on their own and added that if
employees stayed with the Company, they would get raises
and Respondent would make it worth their while. Telling
Motta, without further explanation, that employees who went
out on strike would lose their job is also unlawful, as is
promising a raise to employees who do not participate in a
strike. See Baddour, Inc., 303 NLRB 275 (1991); and
Caterair International, supra.
In late July Parts Manager Dwiggins told Smith that there
was a petition over in Rick Witges’ office if Smith wanted
to sign it. this statement was made in the context of a state-
ment that employees could get wage increases if the Union
was decertified. Moreover, the petition was identified as
being in the office of a supervisor, and this would make it
likely management would know who signed (or didn’t sign),
the petition, and it makes the statement coercive and illegal,
see Manna Pro Partners, 304 NLRB 782, 790 (1991), and
St. Mary’s Medical Center, 297 NLRB 421, 423 (1989).
In early August Dwiggins told Smith that General Man-
ager Keesling was not pleased that Smith had joined the
Union. When this statement is considered in the context of
Respondent’s other unlawful statements and its promise to
promote Smith to a semi-management position if he did not
join the Union, it appears that the statement constitutes an
implied threat of retaliation because of Smith’s union activi-
ties, see LWD, Inc., 309 NLRB 214, 217 (1992).
On August 2, the day on which the Union had scheduled
a strike vote, Manager Witges asked Jerry Motta if Motta
had any questions about what was going to transpire that
evening and then stated that those who showed up for work
the next day would have a job and those who did not show
up, would not. Witges continued that, ‘‘there is a lot of peo-
ple who want to forget about the Union and get down to
business’’ and that it was a shame that those who had the
most to lose were causing all the trouble. I do not find that
Witges’ initial question rises to the level of interrogation
about what would occur at the meeting as alleged by the
General Counsel. The statement, however, did threaten Motta
with job loss if he went on strike and it also implied that
union supporters are troublemakers who are likely to suffer
unspecified loses if there is a strike, and I find such a state-
ment to be unlawful. See Treanor Moving & Storage Co.,
311 NLRB 371 374 (1993).
Under these circumstances I conclude that the General
Counsel has shown that the Respondent’s statements on these
occasions constitute conduct that is coercive in nature and
which interferes with the employees’ Section 7 right and I
find that its actions in these respects (except the alleged in-
terrogation), are shown to be unlawful and in violation of
Section 8(a)(1) of the Act, as alleged in paragraphs 5(F), (H),
(J), and (K) of the complaint.
On August 5, the Friday before he was scheduled to begin
his vacation, Bunfill asked Witges for his vacation check.
Witges told him Keesling said he could take his vacation
early (prior to Bunfill’s August 21 anniversary date), but
could not get early pay for it ‘‘due to what’s going on.’’ It
otherwise was established that Respondent’s usual policy was
that employees could receive their vacation pay before their
vacation if they requested it. The reference to what was
going on appears to be a clear reference to the Union’s deci-
sion to strike. The statement implies that Bunfill is being pe-
nalized because of the employees’ lawful protected concerted
activity conduct in voting to go out on strike and it is there-
fore illegal and in violation of Section 8(a)(1) of the Act, as
alleged in paragraph 5(L) of the complaint.
On October 7, Witges told the replacement workers that
they would have to adhere to all the rules because Witges
intended to strictly enforce the rules so Witges could fire the
strikers. I conclude that his statement was a clear threat to
discharge the strikers through stricter enforcement of the
rules and was therefore unlawful. See Treanor Moving &
Storage, supra, and Heartland of Lansing Nursing Home, 307
NLRB 152, 159 (1992). He also said that two replacement
mechanics were being transferred to the Leta Acura store but
he assured them they would be back as soon as Witges got
rid of some of the strikers. This implies that he was threaten-
ing to discharge returning strikers and is unlawful. See
Alexian Bros. Medical Center, 307 NLRB 389 (1992). In ad-
dition, Witges told the replacements to be careful about con-
versations and to report harassment of them by strikers and
such a statement in this context is unlawful. See Nashville
Plastic Products, 313 NLRB 462 (1993), and Arcata Graph-
ics, 304 NLRB 541 (1991).
About the same time Dwiggins told Parker that the strikers
were going to return but that everyone was going to have to
abide by the rules or else and he also told Brady that he
thought the strikers were idiots and could not wait to get rid
of them. These statements also are implicit threats to dis-
charge the strikers and, accordingly, I conclude that the Gen-
eral Counsel has shown that in each of these instances the
Respondent made unlawful threats that violate Section
8(a)(1) of the Act, as alleged in paragraphs 5(M) and (N) of
the complaint.
During the first week of November, Dwiggins asked parts
employee Paul Huffmon if Huffmon had gotten a subpoena
for a hearing (a Board hearing in this matter was at one time
scheduled for November 7, 1994). Huffmon replied that he
did not know what Dwiggins was talking about. At the hear-
ing Dwiggins explained that he wanted to see if he would
have enough employees for the following Monday, but he
did not explain to Huffmon why he was inquiring. Under
these circumstances a supervisor’s interrogation of an em-
491FRANK LETA HONDA
ployee about being subpoenaed is unlawful, see Metalite
Corp., 308 NLRB 266, 272 (1992), and I find that the Re-
spondent is shown to have violated Section 8(a)(1) of the
Act, in this respect as alleged in paragraph 5(O) of the com-
plaint.
B. Alleged Violations of Section 8(a)(3)
In a proceeding involving changes in conditions of em-
ployment and disciplinary action against employees, applica-
ble law requires that the General Counsel met an initial bur-
den of presenting sufficient evidence to support an inference
that the employees’ union or other protected concerted activ-
ity concerted activity were a motivating factor in the employ-
er’s decision to change their conditions of employment or to
discipline them. Here, the record shows that the Respondent
clearly was aware of the employee’s union activity and
which employees has engaged in the strike. It also engaged
in certain unfair labor practices, as discussed above, which
include actions or statements that threatened the jobs and pay
levels of strikers and clearly showed the Respondent’s union
animus. I also credit Smith’s testimony that Manager
Dwiggins told him before the election that Owner Frank Leta
would never sign a contract and, under these circumstances,
I find that the General Counsel has met his initial burden by
presenting a prima facie showing, sufficient to support an in-
ference that the employees’ union activities in voting for a
union and then engaging in a strike were a motivating factor
in Respondent’s subsequent decision to change the conditions
of employment and to discipline certain of the former strik-
ing employees who were recalled after the Union made its
unconditional offer to return to work. Accordingly, the testi-
mony will be discussed and the record evaluating in keeping
with the criteria set forth in Wright Line, 251 NLRB 1083
(1980), approved in Transportation Management Corp., 462
U.S. 393 (1983), to consider Respondent’s defense and
whether the General Counsel has carried his overall burden.
As pointed out by the Court, in Transportation Manage-
ment Corp., supra:
[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance
of the evidence that the same action would have taken
place even in the absence of the protected conduct ac-
tivity.
Here, there is credible testimony which shows that Re-
spondent’s managers made incriminating statements linking
the wage freeze to the negotiation with the Union, asserting
that the return of the striking employees required a more
strict work environment and making assurances to replace-
ment employees that the strikers would be fired or would be
gone in a few months. Accordingly, I find that the General
Counsel has made a strong prima facia case and that the Re-
spondent’s burden here is substantial.
In July, the Respondent withdrew the $1-per-hour wage in-
crease previously granted to Seymour when he was promoted
to new car porter. Witges testified that General Manager
Keesling instructed him to withdraw the increase because the
Respondent was in negotiations with the Union. This was
only an issue because Seymour, who had not supported the
Union, had been given a raise contrary to its wage freeze
policy (for union supporters) and other employees found out
about it. Under these circumstances, it is apparent that the
withdrawal of Seymour’s raise was tied in with its unwar-
ranted imposition of a wage freeze on almost all of the em-
ployees because of the ongoing negotiations and it was moti-
vated by the Respondent’s desire to keep other employees
who found out about it from using it as a justification for
a change in their own frozen wages. Accordingly, the reduc-
tion in Seymour’s wages was discriminatorily motivated, see
Bay Metal Cabinets, 302 NLRB 152, 174 (1991), it would
not have occurred but for the protected activity, and therefore
it was in violation of Section 8(a)(3) of the Act, as alleged
in paragraph 6(A) of the complaint.
On August 5, the Friday before the strike began, Bunfill
was denied the check he requested for the vacation he was
taking the following week, contrary to Respondent’s usual
practice. Witges specifically told Bunfill that General Man-
ager Keesling had said Bunfill could take his vacation but
could not be paid for it ‘‘due to what’s all going on;’’ and
Bunfill was not paid for that week of vacation until shortly
before the end of the strike in late September. Although the
Respondent contends that Bunfill did not receive his vacation
pay on August 5 because he had not reached his anniversary,
that was not the reason given. Moreover, his August 21 anni-
versary passed and he was not paid for another month. Em-
ployee Erik Smith also was scheduled to take vacation in
August 1994, the week after the strike began but was not
paid for that week. Although Smith made no specific demand
for this pay, the respondent has known specifically since at
least December 7, when it was identified in the complaint
that Smith contended he was due his vacation pay.
Under these circumstances, it appears that both Bunfill and
Smith were delayed or denied their timely receipt of their
due vacation pay because of their participation in the strike
and I find that the Respondent has not shown that they
would have been treated this way in the absence of their pro-
tected concerted activity conduct. Accordingly, Respondent’s
conduct violates Section 8(a)(3), as alleged in paragraph 6(B)
and (C) of the complaint. See Gaywood Mfg. Co., 299 NLRB
697, 706 (1990);
In early September (September 3), the Respondent granted
wage increases to nonstrikers Mike Roth and Ron Fowler.
Roth received a $2-per-hour increase and Fowler received a
$1.50-per-hour increase. The Respondent asserts these wage
increases were based on the employees promotion, however,
the additional duties were minimal at best and do not explain
the substantial size of the increases, especially in view of the
Respondent’s refusal prior to the strike to grant wage in-
creases when employees were promoted. Accordingly, the
record supports an inference that Roth and Fowler were
discriminatorily given benefits not given to striking employ-
ees as a reward for crossing the picket line and I find that
the General Counsel has demonstrated conduct that violates
Section 8(a)(3) of the Act, as alleged in paragraph 6(J) of the
complaint.
In October, when Spenard returning from the strike, his
position was changed from used car technician to a newly
created position of light duty tech/lube man/quality control.
This meant that instead of being in the used car position
from which he could obtain a promotion to line technician,
he was demoted to a position that required him to drive cus-
tomers home and to pick up parts and it involved less me-
chanical skill than what he did when first started working for
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent. This was brought to the Respondent’s attention
at a bargaining session on October 25; However, no changes
were made and Aaron Jones, a replacement employee (hired
September 14, and paid $12.50 per hour versus Spenard’s
$9.75 per hour), continued to do most of the used car work
until he left in early 1995. Otherwise, the Respondent failed
to establish any justification for Spenard’s demotion and it
did not establish that Jones was a permanent replacement.
The Respondent also demoted Seymour who, before the
strike, was the new car porter working 9 a.m. to 6 p.m. On
his return Seymour was made a service porter working 6:45
a.m. to 3:45 p.m. (The new car porter job is preferable to
the service porter position because the new car porter nor-
mally does not take out trash or clean up the shop.) The Re-
spondent asserts that it merely responded to Seymour’s re-
quest to have a Monday through Friday schedule. Witges ad-
mitted, however, that he could have changed the new car
porter’s schedule to Monday through Friday, but chose not
to do so.
After the strikers returned the Respondent eliminated its
so-called ‘‘scratch-off’’ bonus plan for line mechanics and a
previous four-tenths-billable-hour credit given to employee
Hill. Respondent offered no explanation for the elimination
of these benefits other than its conclusion that the plans
lacked effectiveness, and it failed to convincing explain why
the change occurred only on the strikers’ return.
The Respondent also began to enforce a nonsmoking pol-
icy, and it implemented a new rule requiring wearing safety
glasses in the parts department while making keys. As noted,
I have credited the testimony that it made statements to the
replacement employees about cracking down on the enforce-
ment of rules and finding a way to get rid of the strikers and
the Respondent does not explain change in enforcement and
the apparent expansion of the no-smoking rule but merely as-
serts that the policy was in effect for 2 years and it disclaims
any awareness that it was not actively enforced prior to the
return of the strikers. Smith testified that as he was halfway
through making his first key after returning from the strike
Dwiggins came out of his office and taped up a note saying
safety glasses must be used when operating the key machine.
Although the desirability of using eye protection on a grind-
ing machine might seem to be self-explanatory, no expla-
nation is given for the timing of the implementation of this
rule on the occasion described immediately above.
When the former strikers in the parts department (Kevin
Farley, Erik Smith, and Paul Huffmon), returned, the re-
spondent took away their full access to the computer, thereby
prohibiting them from doing parts order processing work
they previously performed, and it instead had them make
substantially more parts deliveries than they previously made.
In addition, Dwiggins instructed them that they must keep
busy, and to clean shelves and sweep the floor. The replace-
ment workers, by contrast, spent very little time making de-
liveries and otherwise had business cards made for them
which were displayed on the front counter. Former striker
Farley had similar business cards before the strike, but had
none on his return, and on his return Farley’s commission
plan was eliminated. Dwiggins’ explained that Farley was
not doing a good job and they had planned to take it away
from him at his next pay review anyway, however, Dwiggins
acknowledged that he had never expressed any displeasure to
Farley about the type of job he was doing. Moreover,
Farley’s anniversary date was in January and Respondent did
not explain why it chose to eliminate the commission when
Farley returned from strike rather than as they asserted had
planned, waiting until Farley’s next pay review.
Here, I find that the Respondent has failed to present le-
gitimate reasons for this series of actions or to persuasively
show that it would have taken these actions at the time the
strikers returned to work even in the absence of their pro-
tected conduct. In view of its retention of replacement work-
ers in the more favorable assignments previously performed
by the strikers and Respondent’s statement to the replace-
ment concerning the probability of a short tenure for the re-
turning employees, I conclude that the Respondent in fact did
change their former conditions of work because of their par-
ticipation in the strike and in order to provide a basis for ter-
minating them or to induce their to leave. Accordingly, I also
find that this conduct violates Section 8(a)(3) of the Act, as
alleged in paragraph 6(D) of the complaint.
Following the strikers return and the initial changes in cer-
tain working conditions, on October 17, the Respondent fol-
lowed up on its threats and issued a verbal warning to
Huffmon which Dwiggins uncharacteristically also recorded
in writing (as a verbal warning). Dwiggins did not inves-
tigate a replacement mechanics complaint that Huffmon had
been rude to him and even told Huffmon that he was not
saying Huffmon engaged in the conduct complained of but
without even asking Huffmon about what allegedly occurred,
Dwiggins warned him that being rude and uncooperative
would not be tolerated.
Farley credibly testified that about the first week after the
end of the strike he overheard two salesmen for other compa-
ny’s ask Dwiggins about the whereabouts of parts replace-
ment employees Jason Cook (who was laid off after one
week) and Rich Fischer (who became a porter) and then
heard Dwiggins answer ‘‘Don’t worry about them. They’ll be
back. It’s just a matter of time.’’ As noted above, in early
November Dwiggins illegally interrogated Huffmon about
getting a subpoena. Then, on December 16, Dwiggins gave
Huffmon a written warning dated December 14, for a billing
error on December 12,. The warning said that similar infrac-
tions in the future could lead to disciplinary action up to and
including discharge. The record shows that other employees
have made mistakes in not billing orders properly but have
not been disciplined. The first Huffmon heard about the mis-
take was on Monday the 12th when Dwiggins told him he
had not billed a clutch pressure plate and a throw out bearing
on a referral order. Dwiggins said that he had corrected the
error before the customer was billed. Huffmon told him that
the parts had been listed when he hit ‘‘enter’’ on the new
computer and nothing more was said until he was called to
Witges’ office where both Witges and Dwiggins gave him
the warning. Huffmon noted that the computer system was
about a month old, and that employees were still learning on
it. It otherwise was shown that parts employees Savant and
Rowe had also made contemporaneous billing mistakes and
were not disciplined for them. (The only exception was the
written warning to Savant in April 1995, well after the com-
plaint had issued on the December write-up to Huffmon.)
As noted above, when Tony Spenard was demoted to the
newly created position of light duty tech/lube man/quality
control from used car technician when he returned from the
strike and replacement Jones, hired September 14, 1994, as
493FRANK LETA HONDA
a used car tech, did most of the used car work until he was
terminated January 5, 1995. At that point, instead of having
Spenard resume performing the used car work, Respondent
demoted Jerry Motta from line technician and began having
him do most of the used car work. Motta had been promoted
from used car tech to line technician before the strike. As-
signing used car work to Motta, instead of the line work on
Hondas that Motta had been performing, had a negative im-
pact on Motta’s income because it is more difficult to make
flat rate time on used car work than new car Honda line
work. Otherwise, the Respondent did not justify why it de-
moted Motta instead of reassigning Spenard and I infer that
the movie was to penalize both former strikers.
Between January 1 and March 13, 1995, Respondent re-
quired former strikers Motta and Jim Woods to share bays
with other employees while replacement employees Cliff
Garry and Rick George had their own unshared bays. Motta
was assigned his own bay when Dale Parker left in March
1995, however, at the time of the trial Jim Woods was still
sharing a bay with other employees. Respondent offered no
explanation for the failure to reassign Woods to his old bay,
a bay he had worked in the entire term of his employment
with Respondent until he returned from the strike. that bay
is more desirable that the bay he was assigned after the strike
because his old bay had extra space adjacent to it, there was
a garage door opener on the doors adjacent to the bay, and
is closer to the parts department and therefore more conven-
ient. The Respondent did not offer any explanation as to
why, particularly after the matter was called to its attention,
it kept the replacement mechanics at their own bays and con-
tinued to require Woods and Motta to share bays.
Under the circumstances shown I find that the record fails
to persuasively show that the Respondent had legitimate rea-
sons for its apparent discriminatory treatment of the returning
strikers and its failure to afford them the same working con-
dition that they enjoyed prior to the strike. Accordingly, I
conclude that its actions were retaliatory in nature and I find
that they are shown in each instance to have violated Section
8(a)(3) of the Act, as alleged in paragraphs 6(F) through (I)
of the complaint.
The General Counsel contends that the strike which com-
menced on August 9, 1994, was an unfair labor practice
strike from its inception and that the failure to reinstate those
strikers to their former positions is a violation of Section
8(a)(3). Here, the record shows that at the time of the strike
vote the employees clearly were aware of and motivated by
Respondent’s conduct in telling employees Parker and Motta
that if there were no union they could get pay raises. Also,
in mid-July Bunfill asked Witges if the mechanics were
going to receive this increase. Witges told him no, because
of contract negotiations, and the employees were also aware
of and upset about Respondent’s wage freeze, including this
failure to grant the mechanics the 35-cent-per-hour increase
they normally would have received on August 1, 1994, when
the Union-Association agreement gave employees an in-
crease. Seymour’s wage increase also had been withdrawn
prior to the strike and, accordingly, I conclude that the strike
is shown to have been an unfair labor practice strike. See
Northern Wire Corp., 291 NLRB 727 fn.4 (1988), enfd. 887
F. 2d 1313 (7th Cir. 1989); Capitol Steel & Iron Co., 317
NLRB 809, 811 (1995); and R & H Coal Co., 309 NLRB
28 (1992).
Inasmuch as the strike was an unfair labor practice strike
from its inception, the Respondent was obligated to reinstate
the strikers to their former positions, discharging if necessary
any replacements, Teledyne Still-Man, 298 NLRB 985
(1990), enfd. mem. 938 F.2d 627 (6th Cir. 1991), and its
failure to do so violated Section 8(a)(3) of the Act. Radio
Electric Service Co., 278 NLRB 531, 537 (1986). Accord-
ingly, by failing to reinstate Spenard to his former position
of used car mechanic; failing to reinstate Seymour to his
former position of new car porter, changing the job duties of
parts employees Farley, Smith, and Huffmon while having
replacements Ken Savant and Lin Rowe perform the duties
they previously performed; eliminating Farley’s commission;
and decreasing the pay of the mechanics by retaining the re-
placements which decreased the number of flat-rate hours
available to the returning striking mechanics, the Respondent
violated Section 8(a)(3) of the Act.
The decrease in flat-rate hours is shown to be due to hav-
ing too many mechanics because for each hour over 40 that
a line technician did not bill, he lost his hourly wage plus
the $1.50-per-hour bonus. For all mechanics, except Motta
and Parker (who had been unlawfully denied their increases
upon promotion to the line), the hourly rate was $16.25 or
$17.25 per hour. Thus at a minimum, each hour not billed
per week was a loss of $17.75 or $18.75. So, by decreasing
the flat-rate hours and lowering the returning strikers’ wages,
Respondent acted illegally. See New Life Bakery, 301 NLRB
421, 430 (1991), and I find that the Respondent is shown to
have violated Section 8(a)(3) of the Act, in these respects as
alleged in paragraph 10 of the complaint.
C. Alleged Violations of Section 8(a)(5)
The Respondent imposed a wage freeze shortly after the
employees voted for the Union as their collective-bargaining
representative and the parties began the process of negotia-
tions. It also took certain other actions in which it acted uni-
laterally and without notification or bargaining with the
Union. These actions occured both before and after January
27, 1995, the date the Respondent asserts that negotiations
reached an impasse. On February 20, 1995, the Respondent
advised the Union that its last offer would be implemented
effective February 27.
The record clearly shows that the Respondent imposed a
wage freeze and that Managers Witges and Dwiggins both
told employees about the freeze on several occasions. the
record also shows that no wage increases were granted from
June 1993, to late 1993, to late February 1995, with the ex-
ception of employee Seymour, whose raise was subquently
reacted, and the increases granted to employees Roth and
Fowler who worked during the strike. The wage increases
denied by Respondent included increases due the line techni-
cians to match the Union’s association agreement (expected
on August 1), increases denied on promotions to new jobs
(denied to Parker, Motta, and Spenard and taken away from
Seymour), and increases due as a result of 60- or 90-day re-
views or on an employee’s anniversary date.
The August withdrawal of the wage increase it had given
to Symour on his promotion to the position of new car porter
was without notice to the Union and therefore violated Sec-
tion 8(a)(5) of the Act. Millard Processing Services, 310
NLRB 421, 425 (1993).
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Since about 50 to 60 PDI’s were performed each month and were
rotated among the line technicians, if there were 8 line technicians
In September, Respondent granted wage increases of $2
per hour to Michael Roth and $1.50 per hour to Ron Fowler.
Then, on February 1, 1995, Respondent granted another $1-
per-hour wage increase to employee Fowler. The Respondent
did not notify the Union about these increases and they sig-
nificantly exceeded the 35 cents it had proposed to the Union
as a basic increase. The Respondent characterized these ac-
tions as ‘‘promotions’’ to new positions but the duties per-
formed remained essentially unchanged and, as found above,
I have found the action otherwise violated Section 8(a)(3) of
the Act. In any event, the Respondent had an obligation to
notify and bargain with the Union because none of the classi-
fications existed prior to that time and I therefore find that
the Respondent violated Section 8(a)(1) and (5) of the Act
in granting these increases. See Capitol Steel & Iron Co.,
supra.
Here, the Respondent admittedly had a policy of granting
wage increases to its mechanics each August 1 when em-
ployees covered by the association agreement with the Union
also received increases. In August 1993 (after certification of
the Union and the start of bargaining), it did not grant its
mechanics the bonus or the premium pay paid to the me-
chanics covered by the association agreement. The premium
pay plan implemented in August 1993 in the association
agreement superseded the prior plan of $1.50 per hour extra
for all hours over 40 but Respondent continued to pay for
its employees under the old plan. The basic increase made
in August 1, 1994, shortly before the strike, for the mechan-
ics covered by the association agreement was 35 cents per
hour, however, Respondent’s mechanics received no increase.
The Respondent never notified the Union that it was dis-
continuing its usual practice of granting increases and Union
Representatives Meinelli and Rippeto testified that he was
not told by employees of the wage freeze until July or Au-
gust 1994. Accordingly, I find that the 6-month-limitation
period set forth in Section 10(b) of the Act did not begin to
run until the Union received notice in July and August 1994
of the conduct constituting the alleged unfair labor practices
labor.
In January 1994, the Respondent and Board reached a set-
tlement agreement to resolve a Board charge not involving
any of the issues herein wherein the Union had objected to
changes Respondent made in the bonus system and the
schedule affecting employees classified as service advisors.
There was no issue about hourly wages, and I find that it
does not bear on the allegation in this proceeding and other-
wise leaves outstanding and unremedied unfair labor prac-
tices not covered by the settlement agreement.
Here, although the parties clearly bargained over wages
during negotiations, it is equally clear that the Union was un-
aware of the freeze and therefore cannot be found to have
agreed to a change about which it knew nothing or to have
clearly and unmistakably waived its right to bargain over a
unilateral change in the Respondent’s past practice. Under
these circumstances, the unilateral imposition of a wage
freeze as it applied to the past practices discussed above
without notice to and bargaining without notice to and bar-
gaining with the Union is therefore unlawful; see Daily News
of Los Angeles, 315 NLRB 1236 (1994); and Harrison Ready
Mix Concrete, 316 NLRB at 242, and in violation of Section
8(a)(5) of the Act, as alleged in paragraphs 8(A) through (C)
of the complaint.
When the strikers returned to work in October the Re-
spondent began to enforce a no-smoking policy which had
not been enforced prior to the strike and which was more ex-
tensive (no smoking in the entire building) then the previous
written policy that:
[E]mployees may not smoke anywhere on the premises
visited by customers in the course of a normal working
day. This includes the showroom, sales office, service
reception area and customer lounge.
As noted by the General Counsel, this policy does not pro-
hibit smoking in the shop or in the mechanics’ lounge. By
letter to the Union dated July 11, 1994, less than a month
before the strike began, Respondent told the Union that the
shop rules had not changed. The written policy is consistent
with the testimony of General Counsel’s witnesses that prior
to the strike they were permitted to smoke in the shop and
the mechanics’ lounge. However, after the strike, the Re-
spondent prohibited all smoking in the building, including
the mechanics’ lounge and, in addition, it implemented a new
safety rule requiring wearing safety glasses by parts employ-
ees when making keys.
In neither case did the Respondent notify or bargain with
the Union over these changes which are similar to actions
found to be illegal in Hi Tech Cable Corp., 309 NLRB 3
(1992); Hi Tech Cable Corp., 318 NLRB 280 (1995); W-I
Forest Products, Co., 304 NLRB 957, 959 (1991), and Pak-
Mor Mfg. Co., 241 NLRB 801 (1979).
The Respondent also failed to notify the Union about the
elimination of the scratch-off bonus plan for line technicians
and the four-tenths-of-an hour credit it had given employee
James Hill for performing road tests. Both of these benefits
have been in effect for a considerable period of time and
were linked to the employees’ performance.
When the strikers returned the Respondent increased the
number of mechanics it employed by retaining 4 replace-
ments mechanics they making the overall number of mechan-
ics 15, versus 11 before the strike. Of those 15, 11 were line
technicians instead of the 8 before the strike. the effect of
retaining the replacements was that flat-rate hours, and there-
fore the earnings of the mechanics who returned from the
strike decreased considerably inasmuch as without an in-
crease in business, the same amount of work was divided
among more people resulting in mechanics who previously
earned pay for 50 or more hours per week, earning closer to
40 hours’ pay. The Respondent did not notify the Union that
it planned to retain the replacements nor did it negotiate with
the Union or reach any agreement to that effect. The reten-
tion of replacements brought about a decrease in the wages
of unit employees without prior notification to the Union.
See Millard Processing Services, 310 NLRB 421 (1993). Ac-
cordingly, I find that in each of these instances that the Gen-
eral Counsel has shown that the Respondent has failed to no-
tify and bargain with the Union over unilaterally imposed
changes has thereby violated Section 8(a)(5) of the Act, as
alleged in paragraph 8(D) of the complaint.
About January 27, 1995, Respondent also unilaterally
changed the flat rate awarded for PDI work from 1.5 hours
to 1.4 hours. That resulted in decreased wages4 for the line
495FRANK LETA HONDA
as there were prior to the strike, each would have performed about
6 to 7 PDI’s per month. Therefore, each line technician lost $9.75
to $11.38 per month and $117 to $136.50 per year (.6 or .7 hours
per month times $16.25, the wage rate in effect prior to March
1995).
technicians who performed that work. James Hill also testi-
fied that he ceased receiving the four-tenths-per-hour credit
for performing road tests when he returned from the strike
in October 1994, Manager Witges testified that change oc-
curred when Hill was discharged in October 1993. However,
Hill was rehired less than a month later. Even if Witges’ tes-
timony in this regard is correct, the elimination nevertheless
was unlawful as Respondent failed to notify the Union prior
to implementing the change. As both these changes were
without prior notice to the Union, I find that the Respondent
violated Section 8(a)(5) of the Act in this respect as alleged
in paragraph 8(E) of the complaint, see Advertiser’s Mfg.
Co., 280 NLRB 1185, 1197–1198 (1986).
On February 1, 1995, Respondent granted a wage increase
to Fowler of $1 per hour and promoted him to a new posi-
tion of service porter coordinator. Respondent never notified
the Union that it was creating the new position or giving
Fowler yet another wage increase, but it did hold a meeting
of the porters at which it announced that Fowler held the
new position.
About August 10, 1994, Respondent created the position
of assistant manager of the parts department and placed re-
placement Ken Savant in that position. Although Respondent
had an assistant manager of the parts department until some
time in 1992, the position was unfilled prior to the certifi-
cation of the Union and the job description for that position
was not included in those provided to the Union July 9,
1993. Dwiggins admitted the position was new in August
1994, and the Respondent did not notify the Union prior to
implementing this change.
About September 3, 1994, Respondent created the position
of PDI tech and light duty tech and created the position of
used car inventory specialist. As discussed above there are
some questions as to the significance of the changes in duties
for the occupants of these positions. However, the Respond-
ent granted the job holders increases of $2 and $1.50, and
it clearly created new positions, with purportedly different
job duties and higher wages without notifying the Union, and
I find that in each of these instances it violated Section
8(a)(5) of the Act, as alleged in paragraphs 8(D) and (F) of
the complaint. See Stephenson Haus, 279 NLRB 998, 1004
(1986).
D. Impasse
After the strike concluded, the parties met again on Octo-
ber 25, 1994, January 27, and May 15, 1995. At the October
meeting, the Union raised several problems including Re-
spondent’s failure to reinstate Tony Spenard to the used car
technician position, and the changed schedules of the parts
department employees. Respondent gave the Union its final
offer with the wage proposal in writing, rather then verbal
as before. The Union suggested discussing the cost of Re-
spondent’s benefit plans, but Respondent’s attorney replied
this was their final offer and he saw no need to discuss the
matter. At the January meeting, Respondent announced it in-
tended to implement its final offer. By letter dated February
3, 1995, the Union advised Respondent that before Respond-
ent implemented its offer the Union felt there were other
issues to discuss such as health and welfare, progressive
wage increases, and the 401(k) plan. Respondent’s attorney
sent the Union a letter stating that it believed the parties
were at impasse and that if the Union disagreed, it should
contact the Federal Mediator. The Union responded by con-
tacting the mediator and requesting a meeting. By letter
dated February 20, 1995, the Respondent notified the Union
that it planned to implement its final offer on February 27.
The Respondent argues that in the meetings on October 25
and January 27, the Union’s position did not change and re-
mained the same as the last meeting before the strike (July
26), with insistence on the Standard Area Agreement. It
notes that its position changed in the October meeting when
it presented its ‘‘final’’ economic offer which included mak-
ing its 35-cent-per-hour proposal effective August 1, 1994. It
emphasizes that negotiations spanned 18 months with meet-
ings during the last 6 months indicating that neither party
was willing to move from its position, that the last two ses-
sions before the impasse was declared were in the presence
of the Federal Mediation and Conciliation Service, and that
there is no allegation of bad-faith bargaining.
The Respondent also cites the Board’s decision in Taft
Broadcasting Co., 163 NLRB 475 (1967), which sets forth
the standards for determining whether parties have exhausted
the prospects of concluding an agreement and a bargaining
impasse exists. Factors such as the parties’ bargaining his-
tory, their good faith, the length of time spent in negotia-
tions, the importance of the issues about which the parties
disagree, and the parties’ contemporaneous understanding of
the status of negotiations are all relevant parts of the analy-
sis.
Regardless of overall subjective bad faith, however, valid
impasse may be precluded if there is a causal or consistent
connection between illegal unilateral changes made while ne-
gotiations were still going on. See Intermountain Rural Elec-
tric Assn. v. NLRB, 984 F.2d 1562, 1570 (10th Cir. 1993),
and unremedied unfair labor practices; Industrial Union of
Machine Workers v. NLRB, 320 F.2d 615, 621 (3d Cir.
1963).
Here, I find that the Respondent’s illegal unilateral
changes and unremedied unfair labor practices which oc-
curred during negotiations and prior to its declaration of im-
passe were such that they negatively impacted the bargaining
arena and obstructed bargaining. They included illegal ac-
tions regarding wages (both the freezing of most employees’
rates of pay and the selective and pretextual gravity of wage
increases to others), changes in bonus and flat-rate plans,
(changes in job classifications, and changes in working con-
ditions through the retention of replacement employees),
which precluded the returning strikers from working under
the same conditions they had enjoyed before the strike or re-
stricted some of them from working enough hours to reach
the same level of pay. Under these circumstances, I find that
although there was little movement on either side after the
strike ended and negotiations resumed, the purported dead-
lock in negotiations was affected by the Respondent’s unilat-
eral actions and unfair labor practices and it is therefore im-
possible to predict where the parties would have stood on the
differences between the area standard agreement and the
Union’s last proposal and the Respondent’s final offer in the
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
absence of the unilateral actions and unfair labor practices.
Accordingly, I find that by declaring impasse and thereafter
imposing the terms of its final proposal the Respondent vio-
lated Section 8(a)(1) and (5) of the Act, as alleged in para-
graph 9(A) of the complaint. See also Serramonte Olds-
mobile, 318 NLRB 80 (1995).
About March 1, 1995, after the implementation of its final
proposal, the Respondent also unilaterally increased the
wages and altered the bonus plan for its service advisors, and
it did so in a manner inconsistent with Respondent’s pro-
posal to the Union (a 35-cent-per-hour increase for all em-
ployees), by granting increases amounting to $1.73 per hour
each for the three service advisors. The increases far sur-
passed anything proposed to the Union during contract nego-
tiations and the bonus system also changed from what had
been in effect since November 1992 (except for the period
when Respondent changed the bonus system in September
1993 until late January 1994), and I find that these unilateral
changes are another violation of Section 8(a)(5) of the Act,
as alleged in paragraph 8(G) of the complaint.
After its declaration of impasse the Respondent continued
to make changes in practices that affect terms and conditions
of employment without either notice or bargaining with the
Union. Thus, by memorandum dated February 24, 1995, Re-
spondent notified its employees that they were required to
park their vehicles on a side road next to the facility, or in
one of four spots at the rear of the building, rather than in
the lot along the east side of Respondent’s building where
previously, employees had been permitted to park. Parking
on the side road was less desirable for employees because
they had to walk further and could not see their vehicles be-
cause of a drop-off down to the road. In addition, the road
was used to deliver automobiles and because the road was
so narrow, employees could be blocked in and unable to
leave at lunch or in the evening.
By memorandum dated February 27, 1995 (reiterated on
March 6), Respondent notified employees that uniforms were
not to be removed from the premises except for one set to
be worn home and back. Employees who had uniforms at
home were required to return them by March 1. Previously,
most employees kept their uniforms at home and changed at
home because the locker area at Respondent’s facility was
not an appealing place to dress and some employees
laundered their uniformed at home because the preferred
laundering the uniforms themselves.
By memorandum dated March 6, 1995, Respondent noti-
fied employees that unauthorized persons in the shop area
would not be tolerated and any employee found with an un-
authorized person in the shop would be disciplined, up to
and including termination. Prior to issuing this memorandum,
employees had been permitted to have friends and family
visit in the shop and nothing was ever said to them.
By memorandum dated March 16, 1995, Respondent
changed its policy with regard to working a second job. Pre-
viously, Respondent had no such restriction, even though it
was aware some employees had other jobs. The memo noti-
fied employees that they could work another job only if they
had the prior written approval of Respondent and also
warned that violation of this rule would subject the employee
to immediate discharge without further notice.
By memorandum date March 16, 1995, Respondent noti-
fied employees that they were subject to immediate discharge
if they repaired automobiles, vans or light trucks, other than
their personal vehicles, without Respondent’s prior permis-
sion. Respondent was aware that employees had performed
automotive repair work on the side and never took steps to
prohibit that conduct. Employees had discussed this work
with members of management, performed work on the side
for management’s friends, and had personal accounts for ma-
terials with Respondent’s parts department.
Effective March 1, 1995, respondent implemented a new
bonus system for its service advisors and gave them pay in-
creases of $1.73 an hour. This bonus system replaced the one
which had been reinstated in January 1994 in settlement of
a Board charge. The new bonus system differs from the old
system in part by eliminating the potential of a 2-percent
bonus. Under the new system the maximum bonus percent-
age is a 1.5-percent bonus.
These changes were all unilateral and without notice to the
Union and, inasmuch as I have found that the Respondent
was not privileged to legally implement its final offer, it is
irrelevant that its final offer contained a provision permitting
it to make reasonable rules. See Serramonte Oldsmobile,
supra. Accordingly, I find that the changes in terms and con-
ditions of employment violated Section 8(a)(5) of the Act as
alleged in paragraphs 9(B) through (F) of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining is:
All regular full-time and part-time service department
employees employed by the Employer at its St. Charles
Rock Road, St. Louis, Missouri facility, EXCLUDING
sales people, office clerical and professional employees,
guards, and supervisors as defined in the Act.
4. Since being certified on June 21, 1993, the Union has
been, and is, the exclusive representative of the Unit for the
purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and conditions
of employment.
5. By impliedly promising a promotion if an employee re-
frained from supporting a strike; implying that there would
be a wage increase if the Union were decertified and stating
that there was a decertification petition in a supervisor’s of-
fice that they could sign; telling employee that those who
went out on strike would lose their jobs; telling an employee
that the general manager was not pleased that he joined the
Union; threatening an employee with loss of his job and
threatening unspecified losses for union troublemakers if they
went on strike; telling employees they could not get their va-
cation pay because of the strike; telling replacement employ-
ees that rules would be strictly enforced so that returning
strikers could be fired; telling nonstriking employees that
strikers were idiots and that management couldn’t wait to get
rid of them; and interrogating an employee about his receiv-
ing a Board subpoena, the Respondent has interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed them by Section 7 of the Act, and thereby
497FRANK LETA HONDA
5 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
has engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
6. By discriminatorily changing terms and conditions of
employment and taking disciplinary action by reducing em-
ployee wages; delaying and denying timely receipt of em-
ployees’ vacation pay; granting pay increase to nonstriking
employees; demoting or giving different and less desirable
positions and duties to returning strikers; eliminating the
bonus and billing benefits and commission plans previously
enjoyed by returning strikers, imposing and enforcing a more
strict no-smoking policy and other rules; restricting use of
computers, issuing warnings; failing to reinstate returning
strikers to their former positions; denying increases for pro-
motions; and by following practices which reduced the earn-
ings of returning strikers because of or in retaliation for their
engaging in a union strike or other protected concerted activ-
ity, Respondent has violated Section 8(a)(1) and (3) of the
Act.
7. By unilaterally making changes in terms and conditions
of employment after the certification of the Union as the col-
lective representative of the unit employees without notice to
or bargaining with the Union, including imposing a wage
freeze contrary to past practices; granting wage increases for
new job classifications; expanding and enforcing a no-smok-
ing policy; implementing new safety rules; withdrawing an
employees job promotion wage increase; granting selective
increases in amounts in excess of those proposed to the
Union in negotiations; changing bonus and rate billing prac-
tices; increasing the number of employees by retaining re-
placement workers and dividing the available work among
more people with a resulting decrease in real wages; imple-
menting its final offer without a valid impasse being reached;
changing employee parking to a less desirable location;
changing employee uniform and visitor rules; and imposing
restrictions on employees holding a second job and perform-
ing repair work on their own time, Respondent has violated
Section 8(a)(1) and (5) of the Act.
8. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it necessary
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to make employees
whole for any loss of benefits they may have suffered be-
cause of the discrimination practiced against them by pay-
ment to them a sum of money equal to that which they nor-
mally would have earned in accordance with the method set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and
make whole unit employees for any loss of earnings and
other benefits suffered as a result of the unilateral changes,
in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).5 Because of its unlawfully declared im-
passe, the record shows that the Respondent engaged in bad-
faith bargaining. The Respondent also engaged in extensive
and pervasive illegal practices and it encouraged employees
to seek decertifiaction of the Union and therfore, I rec-
ommend that the certification year be extended by 12
months, as proved in Thill, Inc., 298 NLRB 669 (1990).
I also find that a broad Order is warranted because the Re-
spondent has shown a proclivity to violate the Act and has
engaged in such egregious and widespread misconduct as to
demonstrate a general disregard for employees’ statutory
rights. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]