Hayward Dodge, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 434 (N.L.R.B. 1989)

434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hayward Dodge , Inc. and Automobile Salesmen's
Union Local 1095 , United Food and Commer-
cial Workers, AFL-CIO, CLC. Cases 32-CA-
8781 and 32-CA-8941
January 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 13, 1988, Administrative Law Judge Jer-
rold H. Shapiro issued the attached decision. The
Charging Party filed an exception and a supporting
brief.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hayward
Dodge, Inc., Hayward, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' The Charging Party has excepted only to the judge's finding that by
virtue of the Respondent's February 19, 1987 written notice to the
Charging Party of its intention to implement its last and final contract
proposal, the Respondent effectively gave the Charging Party substantial-
ly more than 72 hours' notice of its intention to terminate the parties' ex-
tension of the collective-bargaining agreement that expired January 31,
1987.
Daniel F. Altemus, Jr. and Karen Clopton, Esqs., for the
General Counsel.
David Miller (Hoyt, Hoyt, & Miller), for the Respondent.
David A. Rosenfeld (Van Bourg, Weinberg, Roger, & Ro-
senfeld), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. I
conducted a hearing in this consolidated proceeding in
1988 on February 9 through 12 and February 16 through
17. The hearing was based on unfair labor practice
charges filed by Automobile Salesmen's Union Local
1095 (Union),' and on an amended consolidated com-
plaint,2 issued on behalf of the General Counsel of the
' The charge was filed in Case 32-CA-8781 on Mar. 17, 1987, in Case
32-CA-8941 on May 20, 1987.
2 The amended consolidated complaint issued January 12, 1988, and
was further amended at the hearing.
National Labor Relations Board (Board) by the Board's
Regional Director for Region 32, which alleged that
Hayward Dodge , Inc. (Respondent) was engaging in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(Act). Respondent , in its answer to the amended consoli-
dated complaint , denied the commission of the alleged
unfair labor practices.3
The amended consolidated complaint , as amended
during the hearing, alleges Respondent violated Section
8(a)(1) of the Act, when in early December 1986 its
Sales Manager Basil Lamaestra threatened employees it
would be futile for them to support the Union , and when
its General Manager Mark Lane engaged in the follow-
ing conduct : During the period from December 1986
through January 1987 told employees Respondent in-
tended to get rid of the Union ; about December 19, 1986,
and February 2, 1987, threatened employees with dis-
charge if they supported the Union ; about January 5 and
March 11 , 1987, threatened employees with onerous
working conditions if they supported the Union; about
January 30 , 1987, threatened to retaliate against employ-
ees if they supported the Union ; about February 2, 1987,
prohibited employees from talking with other prounion
employees and promised employees benefits if they re-
frained from supporting the Union ; and, about February
3, 1987, questioned employees about the union sympa-
thies of other employees and solicited and directed em-
ployees to report the union sympathies of other employ-
ees.
The amended consolidated complaint also alleges that
"[c]ommencing on or about September 17, 1986, and
continuing thereafter until on or about May 1, 1987 Re-
spondent `flooded' its sales floor by hiring inexperienced
salesperson employees and by increasing the size of its
work force from approximately 20 to approximately 30
employees , for the purpose of decreasing individual em-
ployees' commissions and in order to cause the termina-
tion of employees ," and further alleges that Respondent
engaged in this conduct because its employees joined or
supported the Union and that by engaging in this con-
duct Respondent violated Section 8(a)(3) and (1) of the
Act.
Lastly, the amended consolidated complaint , as amend-
ed at the hearing, alleges Respondent has refused to bar-
gain within the meaning of Section 8(a)(5) of the Act, as
follows: about April 1, 1987, and about September 1,
1987, Respondent unilaterally implemented the terms and
conditions of employment set forth in its February 19,
1987 collective -bargaining proposal made to the Union
and implemented that proposal at a time when the par-
ties' collective-bargaining negotiations had not reached a
lawful impasse; since September 1, 1987, and continuing
to the date of the hearing in this case , Respondent has
unilaterally changed the terms and conditions of employ-
ment of its employees represented by the Union and en-
3 In its answer Respondent admits it is an employer engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act and meets the
Board 's applicable discretionary jurisdictional standard . Also, in its
answer, Respondent admits that the Union is a labor organization within
the meaning of Sec. 2(5) of the Act.
292 NLRB No. 55
HAYWARD DODGE
gaged in this conduct without affording the Union an op
portunity to bargain, and, by its overall acts and con
duct, including the above described unilateral conduct
and the above described alleged 8(a)(1) and (3) viola
tions, Respondent has engaged in bad faith bargaining
with the Union
On the entire record from my observation of the de
meanor of the witnesses, and having considered the
posthearing briefs filed by the parties,4 I make the fol
lowing
FINDINGS OF FACT
I THE ALLEGED UNFAIR LABOR PRACTICES
A The Setting
Respondent, a wholly owned subsidiary of the Tasha
corporation, is a California corporation with its place of
business in Hayward California, where it is engaged in
the sale and service of motor vehicles Respondent is one
of approximately 14 motor vehicle dealerships owned
and operated by the Tasha corporation Hank Kahaca
turian also known as Hank Turian is the owner and
president of the Tasha corporation
During the time material, the responsibility of operat
ing Respondent was delegated by Tunan to Mark Lane
who from September 6, 1986, until July 9, 1987, was Re
spondent's vice president and its general manager
During this period Basil Lamaestra was employed by
Lane as Respondents sales manager Respondent s
answer to the amended consolidated complaint admits
that Lane and Lamaestra were agents of Respondent and
supervisors within the meaning of Section 2(11) of the
Act
Since 1972 the Union has been recognized by Re
spondent as the exclusive collective bargaining represent
ative of Respondents salespersons Respondent and the
Union have entered into a series of collective bargaining
agreements covering the salespersons, the most recent of
which was effective from February 1, 1984, through Jan
uary 31 1987 (the 1984-1986 agreement) On December
23 1986 and on a number of other dates thereafter rep
resentatives of the Respondent and the Union met for the
purpose of negotiating a collective bargaining agreement
to succeed the 1984-1986 agreement but were unable to
reach a new agreement
B The Alleged 8(a)(1) Violations
1 Lamaestra s comments to Barich
The complaint paragraph 6, alleges Respondent vio
lated Section 8(a)(1) of the Act on December 3 and 4
1986 when Sales Manager Lamaestra threatened em
ployees it would be futile for them to join or support the
Union In support of this allegation the General Counsel
relies on Warren Barich s testimony Barich was hired by
Respondent on December 3 as a salesperson He was
4 On April 19 1988 Respondent submitted a Motion to File Reply
Brief and on April 26 1988 counsel for the General Counsel filed an
opposition to this motion Respondents motion is denied
435
hired by Lamaestra who worked with him previously at
another dealership
Barich testified that the day Lamaestra asked him to
come to work, Lamaestra informed him that the Union
represented the salespersons, but not to worry about the
union or being in the union because we don t plan to
have it around here Barich further testified that the
next day, when he began work for Respondent while in
the sales office talking with Lamaestra about his job
duties he told Lamaestra that one of the girls men
tioned to him he had to join the Union Barich ques
tioned Lamaestra about joining the union Barich testi
feed Lamaestra responded by telling him not to worry
about going to the Union and joining it `because we
don't plan on having them here, we re going to blow
them out anyway
Lamaestra testified he hired Barich He did not testify
about the above described remarks Barich attributed to
him Nonetheless, I have discredited Barich's testimony
because his testimonial demeanor was poor and his credi
bility was impugned by his 1982 grand theft misdemean
or conviction,5 and was further impugned by the fact
that when he filled out his employment application for
his job with Respondent, he falsely wrote he had never
been convicted of a crime 6 Also, as I have found infra,
Barich falsely testified about other matters of significance
in this proceeding Lastly, in evaluating Barich s credibil
ity it is relevant that he had reason to be hostile toward
Respondent because Respondent discharged him and he
believed his discharge was unjustified It is for these rea
sons that I have discredited Banch s above described tes
timony I therefore shall recommend that this allegation
be dismissed in its entirety
2 Lane s comments to Cooper
The General Counsel contends Respondent violated
Section 8(a)(1) of the Act when late in January 1987 job
applicant Michael Cooper was told by Respondents gen
eral manager, Lane that Respondent was trying to get
rid of the Union This contention is not encompassed by
S The California Penal Code defines grand theft in substance as the
taking of over $400 in money labor or real or personal property
6 Lamaestra credibily testified he did not know about Banch s criminal
conviction I reject Barich s testimony that Lamaestra knew about his
conviction In any event when Banch falsely wrote on his employment
application that he had not been convicted of a crime there is no evi
dence that he relied on anything Lamaestra said
' The sole evidence that Lamaestra indicated to employees other than
Banch that Respondent intended to get rid of the Union is the testimo
ny of salesperson Howard Mundey that in mid March 1987 at a salesper
sons meeting Lamaestra told the salespersons he was unhappy about
having to take off from work that day to attend a meeting with the
Union for contract negotiations but for the salespersons not to worry be
cause the union is not going to be here and he did not want the Union
to tell him how much he was supposed to pay his employees However
when asked on direct and cross examination to repeat his testimony
Mundey significantly failed to include the portion of his prior testimony
in which he attributed to Lamaestra the words the union is not going to
be here I also note Mundey s testimony is inherently implausible be
cause it is undisputed that Lamaestra had absolutely nothing whatsoever
to do with the contract negotiations between Respondent and Union he
was not one of the Respondents negotiators did not attend a single ne
gotiation session and was apparently never consulted by management
about Respondents bargaining position
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the complaint's allegations , but I have considered it be-
cause the matter was fully litigated.
Late in January 1987 Cooper, in response to a newspa-
per advertisement, applied for a job with Respondent as
a salesperson . He testified he went to the Respondent's
place of business and, after filling out a job application,
was interviewed by General Manager Lane. During the
interview, when Cooper asked "if this was a union
store," Lane, according to Cooper, answered by stating,
"it's kind of up in the air. We're trying to get the fucking
union out of here right now."
Lane testified he did not recall interviewing Cooper
for a job and testified that when job applicants came to
be interviewed that he did not conduct the interviews,
which were conducted by one of Respondent's sales
managers . Lane further testified he never made the
above-described remarks attributed to him by Cooper.
I credit Lane's testimony because: (1) Lane's testimoni-
al demeanor, which was good, was better than Coo-
per's;" (2) Lane was no longer employed by Respondent
when he testified, having been discharged several months
prior to the hearing, and as a result of the discharge,
which angered him, appeared to be a disinterested wit-
ness with no bias in favor of Respondent;9 and (3) Lane's
testimony that job applicants, such as Cooper, were
interviewed by one of Respondent's sales managers and
not by him, was corroborated by Sales Manager Lamaes-
tra's testimony. It is for these reasons that I credited
Lane's above-described testimony. I therefore find the
General Counsel's contention that Lane told Cooper Re-
spondent was trying to get rid of the Union is not sup-
ported by credible evidence.
3. Lane's comments to Parry, Frye, Mundey, and
Barich
The amended consolidated complaint alleges that
through General Manager Lane Respondent violated
Section 8(a)(1) of the Act by engaging in the following
conduct: During the period from December 1986
through February 1987 threatened employees Respond-
ent would get rid of the Union (complaint par. 7(a));
about February 2, 1987, threatened to discharge employ-
ees if they joined or supported the Union (complaint par.
7(b)); and, about February 2, 1987, prohibited employees
from talking with other employees because of their union
activities, and promised employees benefits if they re-
frained from engaging in union activities (complaint par.
7(f)). In support of these allegations the General Counsel
relies on the testimony of Warren Barich, Edward Frye,
and Howard Mundey.
Mundey , an inexperienced automobile salesperson, was
hired by Respondent on February 2, 1987, as a salesper-
son. He testified that on February 2, with two other in-
experienced salespersons-Brian Parry and Ed Frye-
8 Lane generally impressed me as a sincere witness who , despite the
passage of time which had obviously dulled his memory about certain
matters, was conscientiously attempting to recall the events he was ques-
tioned about.
8 I note that at one point during the hearing , Lane, with obvious sin-
cerity, testified, " I had done no preparation prior to coming to this trial. I
really don't care one way or another and did not care about [Respond-
ent]. I really have no true feelings."
who were also hired the same day, he met with General
Manager Lane in the presence of Sales Manager Lamaes-
tra and Crew Chief Barich, at which time Lane intro-
duced everyone and welcomed Frye, Mundey, and Parry
to Respondent's employ. Mundey's testimony about what
was stated by Lane during this meeting, follows.
Lane, immediately after introducing everyone and wel-
coming Frye, Mundey, and Parry, told them Respondent
was in the middle of union negotiations but for Frye,
Mundey, and Parry not to worry about the negotiations
because the Union "probably would not be here, he was
going to blow [the Union] out." Lane then stated that
Frye, Mundey, and Parry were the "new wave" of sales-
men because they were going to have the unique oppor-
tunity to be trained by Chrysler at a Chrysler training
school, and told them that if they followed his instruc-
tion they would have a job for life, but if they did not
follow his instructions he would "blow [them] out, he
would burst [their] bubbles." Lane, according to
Mundey, also told them their salary would be $1500 a
month plus commissions and told them not to worry
about the older salesmen, whom he referred to as the
"old timers," because he stated "he was going to blow
them out" and instructed Frye and Parry not to associate
with the "old timers" because the "old timers" would
give them bad sales advice and explained that he had
certain standards he wanted his salespersons to follow
and the older salespersons did not follow his standards.
More specifically, Lane explained he wanted his salesper-
sons to be "go getters" and to go out and meet custom-
ers, whereas, the older salespersons in Respondent's
employ just sat back and waited for customers to come
to them. Lane stated he wanted to train Frye, Mundey,
and Parry to sell cars his way, which was a more aggres-
sive way than the older salespersons were using.
Mundey further testified that after the above-described
February 2 orientation meeting that he, Parry, and Frye
attended a Chrysler training school for 2 days and when
they returned to Respondent's premises later that week
to work, that Lane again met with them10 and told them
"if you guys are ready to sell cars over the weekend that
he would guarantee [them] the $1500" and also told
them "not to talk to the other salesmen and just to hang
out in our tight little group."11
Frye, an inexperienced automobile salesperson, who,
like Mundey, was hired on February 2, 1987, testified he
attended the February 2 orientation meeting in Lane's
office with Mundey, Parry, and Barich, and further testi-
fied that later during the week, after having attended
training school, he was present at another meeting in
Lane's office with Mundey, Parry, and Barich. He was
10 According to Mundey neither Lamaestra nor Barich was present at
this meeting.
11 Mundey testified it was never indicated to him that the monthly
draw advanced to him against his commissions would be less than $1500.
This testimony is false because prior to his February 2 meeting with Lane
he was given a document by Respondent to read and sign, entitled "com-
pensation plan," which he in fact signed and which stated, among other
things, that his monthly compensation would be $1000 as called for by
the Respondent 's contract with the Union , the 1984- 1986 agreement. It is
undisputed that Mundey, as well as Frye and Parry, were in fact paid
$ 1000 a month as called for by the 1984-1986 agreement.
HAYWARD DODGE
unable to recall whether Lamaestra was present at either
of these meetings and was unable to differentiate be
tween the two meetings with respect to what Lane
stated Frye s testimony concerning these meetings fol
lows
Lane told Frye Mundey, and Parry that the reason
they had been hired was because Lane wanted to get
rid of some of the deadwood in the dealership He told
them they would learn to sell cars and work with
Barich who would be their crew chief Lane also in
structed them to deal only with Barich and not to associ
ate with the other salespersons he stated they should be
cordial to the other salespersons but not to get buddy,
buddy" with them Lane also stated that when Frye,
Mundey, and Parry returned from training school, if
they were ready to sell cars by that weekend he would
guarantee them $1500 a month but if they needed more
time he would guarantee them $1000 a month and ex
plained that the faster they qualified as salespersons the
more money they would earn He told them they were
to do things his way, that he wanted them to be aggres
sive salespersons and stated that the other salespersons in
Respondents employ, whom he had previously referred
to as deadwood, were not aggressive and as a result
were not selling cars Lane assured Frye, Mundey and
Parry that if they did things his way, they would have a
job for life
Frye also testified that at one point during one of these
two meetings, either himself, Mundey or Parry asked
Lane a question about the Union He testified he did not
remember the question or which of them asked it but
testified that Lane answered, don t worry about joining
the Union because he intended to blow the Union out of
there This was Lanes only reference to the Union at
either meeting
Barich, who began work for Respondent on December
3 1986 and was employed as a salesperson and then as a
crew chief in charge of a crew of salespersons 12 testi
feed that at the February 2 orientation meeting, at which
Sales Manager Lamaestra was present only briefly that
Lane made the following statements to newly hired
salespersons Frye Mundey and Parry Lane explained
to them he was the great motivator and would guaran
tee them $1500 a month" 3 and stated he did not want
them talking to any of the union people out there and
warned them that if talked to the union people he
would burst Frye s, Mundey s and Parry s bubble
and they d be out and told Frye, Mundey and Parry
that we were going to blow the union out and also
told them they might be going to school
Barich also testified that immediately after the above
described February 2 orientation meeting that Lane, in
Lamaestra s presence explained to Barich that Lane s
12 There is no contention that Banch as a crew chief was a supervisor
within the meaning of Sec 2(11) of the Act
13 Banch testified that during this time period the monthly guarantee
for all salespersons was $1500 This testimony was incorrect because the
undisputed evidence is that during this period Respondent pursuant to
the terms of its 1984-1986 agreement with the Union paid $1500 a month
only to those salespersons in its employ for more than 90 days and paid
its new hires $1000 It is undisputed that Frye Mundey and Parry were
paid $ 1000 a month
437
reason for not wanting Frye, Mundey or Parry talking
with the union workers was Lane did not want them
[referring to Frye Mundey, and Parry] joining the union
and he did not want the other guys knowing about it [re
ferring to the fact that Frye Mundey and Parry had not
joined the union]
Barich further testified that after Frye Mundey and
Parry had attended training school that Lane later that
week, in Barich s presence met with them briefly before
they went to work and told them they would be work
ing on Barich s crew and to keep away from the union
people
Lastly, Barich testified that sometime between his date
of hire on December 3, 1986 and the middle of Decem
ber 1986, that Lane, in Lamaestra s presence told Barich
they were going to blow the fucking union out
Respondent s general manager , Lane who assumed
that position on September 6 1986, testified he met with
Frye Mundey and Parry a few days after their hire and
after they had attended the Chrysler training school and
that neither Lamaestra nor Barich were present during
this meeting, which lasted approximately 10 minutes
Lane s description of what took place at this meeting
follows
Lane welcomed Frye, Mundey, and Parry and wished
them luck and told them they should not hesitate to
speak to the sales manager if they had questions and ex
plained Respondents remuneration plan In this last
regard he explained to them among other things they
would be paid $1000 a month as a draw against their
commissions and after they had been employed for
awhile this would be increased to $1500 which was the
maximum draw He told them they were professional
and as professionals they were responsible for waiting on
customers in a professional manner and advised them to
steer away from those salespersons who did not have a
good attitude or a good perspective about selling cars
but to associate with those salespersons who they
thought could help them In order to determine which
salespersons were the top producers Lane advised them
to look at the number of cars sold by Respondents sev
era! salespersons which figures were posted periodically
on Respondent s sales board and to talk to the salesper
sons with high productivity and learn the reason for
their success Lane also instructed them not to congre
gate in groups because customers did not like to see
groups of salespersons congregating in an area and told
them they should circulate around the dealership and
that once a customer came onto the premises to be sure
to bring the customer into the area of the sales floor
where the sales offices were located Lane stated that
once they became skilled automobile salespersons there
would be a future for them for life in selling cars in any
part of the country or in any city Lane denied telling
them they might have a job for life with Respondent or
words to that effect
Lane testified that neither at this meeting nor at any
other time did he tell Frye, Mundey, or Parry or any of
the other salespersons that he was going to blow the
union out or say words to that effect Rather Lane testi
feed he did not speak to employees about the Union be
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause Marcia Hoyt, Respondents lawyer, instructed him
not to say anything to the salespersons about the Union
and not to talk about the Union with the employees and
further instructed him that if employees asked him a
question concerning the Union that he should refer them
to their union representative Lane testified he followed
Hoyt s instructions
Respondent s sales manager Lamaestra, testified he
never attended a meeting that Lane had with Frye,
Mundey, and Parry but that the only employee meetings
he attended were the usual sales meetings, which in
volved all the salespersons He further testified he never
heard Lane tell Frye Mundey, or Parry they would be
paid $1500 a month as a draw against their commission
or tell them or any of the other salespersons that the
Union would be blown out or tell employees not to
associate with older salespersons
For the reasons set forth immediately below, I reject
the above described testimony of Frye, Mundey, and
Barich insofar as it relates to the complaints unfair labor
practice allegations
The testimonial demeanor of Lane and Lamaestra,
which was good, was better than the testimonial demean
or of Frye, Mundey, or Barich
Lane, as I have discussed supra, having been abruptly
discharged by Respondent and having been angered by
his discharge was a disinterested rather than a witness
biased in favor of Respondent
Lane s testimony that he did not engage in any of the
alleged illegal conduct attributed to him was corroborat
ed in substantial part by the testimony of Sales Manager
Lamaestra, whose testimonial demeanor was good
As I have discussed in detail supra the credibility of
Barich whose testimonial demeanor was poor was fur
ther impugned by his grand theft conviction and the fact
that he lied about that conviction when he applied for
work with Respondent
Barich Frye and Mundey were not truly disinterested
witnesses They were discharged by Respondent and
subsequent to their discharges when they submitted affi
davits to the Board during the investigatory stage of this
case had reason to believe that if the Board determined
the Union s unfair labor practice charge was meritorious,
that they would be named as discriminatees 14
Barich s testimony that Lane told him the reason he
did not want Frye, Mundey or Parry to talk with the
union workers was that Lane did not want them to join
the Union and did not want the union workers to know
that they had not joined the Union is inherently implau
sible because it is undisputed that the salespersons hired
by Respondent during the time material including Frye,
Mundey, and Parry, were each told by Respondent that
pursuant to the contractual union security clause they
were required to join the Union and were instructed by
Respondent to go to the Union for that purpose
14 In fact Banch Frye and Mundey among other terminated salesper
sons were named as discriminatees in the initial complaint issued on July
31 1987 in this proceeding However as a result of a further investiga
tion by the Board s General Counsel the Board s Regional Director by
Order dated November 18 1987 withdrew the allegations of the coin
plaint that named Barich Frye and Mundey as discriminatees
Frye s, Mundey s, and Barich s testimony that Lane
told Frye Mundey and Parry, at an orientation meeting,
that Respondent intended to blow the Union out, was
not mutually corroborative and differed in certain signifi
cant respects Mundey testified that after introducing ev
eryone and welcoming Frye, Mundey, and Parry that
Lane brought up the topic of the Union by stating Re
spondent was in the middle of union negotiations but
that Mundey, Frye, and Parry should not worry about
negotiations because the Union probably would not be
there because Lane was going to blow the Union out
On the other hand, Frye testified that either Frye or
Parry or Mundey asked Lane a question about the Union
and Lane answered that question by stating that Frye,
Mundey and Parry did not have to worry about joining
the Union because he intended to blow the Union out 15
Barich s testimony concerning this subject is that at some
point during the orientation meeting, Lane explained
that we were going to blow the union out Barich did
not state the context in which Lane supposedly ex
pressed this remark More specifically, Barich did not
corroborate Mundey's testimony that Lane made this
statement in the context of remarking about the Re
spondent s contract negotiations with the Union nor did
Barich corroborate Frye's testimony that it was made in
the context of Lane remarking that the three newly hired
salespersons did have to worry about joining the Union
Frye s, Mundey s and Barich s testimony concerning
Lane s statement that Frye, Mundey and Parry should
not talk or associate with the other salespersons em
ployed by Respondent was not mutually corroborative
and differed in certain significant respects Mundey testi
fled Lane told them not to associate with the old
timers and that the reason he did not want them to as
sociate with the old timers was those salespersons
would give them bad sales advice and Lane had certain
standards he expected his salespersons to follow and the
old timers did not follow those standards and went on to
explain that the old timers were not aggressive enough
Frye testified Lane told them only to deal with Barich
and not to associate with the other salespersons and
stated that while it way -4ll right for them to be cordial to
the other salespersons not to get buddy buddy with
them According to Frye although Lane at another
point during the meeting criticized the salespersons
whom Lane referred to as deadwood as not being ag
gressive enough Lane did not, as Mundey testified give
an explanation for his instruction that Frye, Mundey, and
Parry not associate with the deadwood Barich testi
fled that when Lane told Mundey Frye, and Parry not
to associate with the other salespersons that Lane did not
refer to them as `old timers as Mundey testified, or as
15 Frye s testimony that Lane stated that Frye Mundey and Parry did
not have to worry about joining the Union because he intended to blow
the Union out warrants the inference that the question to which Lane
was responding was whether Mundey Frye and Parry were obligated
to join the Union As I have noted supra it is undisputed that during the
time material all of Respondents new hires were instructed by Respond
ent that they were obligated under the contractual union security clause
to join the Union and were asked by Respondent to go to the Union for
that purpose Under the circumstances Frye s testimony which was not
corroborated by either Frye or Banch is inherently implausible
HAYWARD DODGE 439
deadwood, as Frye testified, but testified that Lane re
ferred to them as union people, and further testified
Lane told Frye, Mundey, and Parry that he did not
want them talking to any of the union people out there
and to keep away from the union people and warned
that if they spoke to them that he would burst Frye s,
Parry s, and Mundey s bubble' and they would be ter
minated Neither Frye nor Mundey testified that Lane
threatened them with reprisals, including termination, if
they spoke with other salespersons Also unlike Mundey,
who testified that Lane explained that Frye Mundey,
and Parry should not associate with other salespersons
because he feared they would be given bad sales advice,
Barich testified that Lane gave no explanation during the
orientation meeting for this instruction, but testified that
immediately after the meeting Lane explained to Barich
he did not want the three inexperienced new hires to talk
with the union workers because he did not want them
to join the Union and did not want the other salesper
sons to know that they had not joined the Union As I
have noted supra, Barich's testimony in this respect is in
herently implausible
It is for the above reasons that I find there is no credi
ble evidence to support the alleged violations of Section
8(a)(1) of the Act set forth in paragraphs 7(a) and (f) of
the amended consolidated complaint 16 and of that part
of paragraph 7(b) alleging that on or about February 2,
1987, Respondent threatened to discharge employees if
they joined or supported the Union 17 1 therefore shall
recommend the dismissal of those allegations
4 Lane s conversation with Barich
The complaint paragraph 7(g), alleges in substance
that on or about February 3, 1987 , Respondent through
General Manager Lane violated Section 8(a)(1) of the
Act by interrogating employees about their union activi
ties and the activities of other employees and by direct
ing and soliciting employees to report about the union
activities of other employees In support of this allega
Lion the General Counsel relied on Barich s testimony
Barich testified that a few days after February 2 1987
he walked into Lane s office and interrupted a conversa
tion between Lane and Sales Manager Lamaestra and
Lane asked Barich and Lamaestra if there was a strike
how many people they thought would stop work and
support it Barich answered that probably approximately
16 The General Counsel in his posthearing brief does not contend there
is evidence to support the part of par 7(f) alleging that on or about Feb
ruary 2 Lane promised employees benefits if they refrained from engag
mg in union activities In this respect I note that even if I were to credit
the testimony of the General Counsels witnesses it would not establish
that in offering to pay Mundey Frye and Parry $1500 a month rather
than the $1000 they were entitled to under the terms of the 1984-1986
agreement that the increased amount of money was offered to them in
the form of a promise of increased benefits if they refrained from engag
mg in union activities In any event as I have found supra Lane credibly
denied offering them a guarantee of $1500 a month
17 Regarding the other portion of par 7(b) which alleges that on or
about December 19 1986 Lane threatened to discharge employees if
they joined or supported the Union the General Counsel in his posthear
mg brief does not point to any evidence supporting this allegation and
my examination of the record fails to reveal such evidence I therefore
shall recommend the dismissal of that allegation
10 salespersons would strike 18 When Lane asked wheth
er Barich knew this for sure, Banch asked if Lane
wanted him to find out, and Lane told him to "go find
out Barich then left Lane's office and went to the sales
floor and spoke individually to each of the approximate
ly 15 salespersons on the floor at that time and asked
each of them `how their feelings were and just what do
you think about this union thing and what do you guys
think about the strike Barich testified that some of
those he questioned indicated they would support a
strike and others indicated they would continue to work
After he finished questioning the salespersons, Barich tes
tified he returned to Lane's office and told Lane that ap
proximately 9 or 10 salespersons whom he had ques
tioned had indicated they would support a strike Lane
asked for their names Barich asked if Lane would rather
have him write out the names Lane answered in the of
firmative, so Barich wrote out the list of the names of
those salespersons whom had indicated they would sup
port a strike and gave this list to Lane
Lane testified he did not instruct anyone to find out
which employees would strike and Lamaestra testified
that there was no discussion in his presence between
Barich and Lane about which employees would go out
on strike
I do not believe Barich s above testimony because his
testimonial demeanor was poor and, as discussed supra,
Barich was not a disinterested witness and, besides
having poor demeanor his credibility was further im
pugned by his grand theft conviction and the fact he lied
about that conviction when he applied for work with
Respondent Also when Lane testified he did not instruct
anyone to find out which employees would strike and
when Lamaestra testified there was no discussion be
tween Lane and Barich in his presence about which em
ployees would go out on strike, Lane s and Lamaestra s
testimonial demeanor was good It is for the above rea
sons that I find there is no credible evidence to support
the alleged violations of Section 8(a)(1) of the Act set
forth in paragraph 7(g) and therefore shall recommend
the dismissal of those allegations
The complaint at paragraphs 7(c) and (e) alleges in
substance that Respondent through General Manager
Lane violated Section 8(a)(1) of the Act on or about
January 5 and March 11 1987 when it threatened em
ployees it would impose more onerous working condi
tions if they joined or supported the Union, and on or
about January 30, 1987 when it threatened to retaliate
against employees if they joined or supported the Union
In his posthearing brief counsel for the General Coun
sel makes no contention there is any evidence to prove
the allegations encompassed by paragraphs 7(c) and (e)
of the complaint and my review of the record has failed
to uncover such evidence I therefore shall recommend
that these allegations be dismissed
18 Barich s testimony is silent whether Lamaestra answered Lanes
question
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C The Alleged 8(a)(3) and (1) Violations ased witness in view of his discharge by Respondent
Also when he submitted his affidavit to the Board during
the investigatory stage of this case, he had reason to be
heve that he would be named as a discriminatee, if there
was merit to the Union s unfair labor practice charges
For all the aforesaid reasons, I do not believe Barich s
testimony
Barich also testified that in December 1986 during the
first 2 weeks of his employment, he was with Lane and
Lamaestra discussing a strike that had occurred at an
other dealership where Lamaestra and Barich had
worked several years previously when Lane asked
Barich how he thought things would go if there was a
strike at Respondents place of business Barich testified
he told Lane he thought it would not cause any problem
Then, when asked by counsel for the General Counsel if
there was a discussion during this conversation about the
tactics Respondent would use if there was a strike,
Barich testified there was such a discussion but testified
it was difficult for him to recall what was said and that
all he could remember about the discussion was we
talked about how it went and how we thought we would
make it here, probably the same way However, on fur
ther reflection Barich testified that the words used by
Lane during the conversation had something to do with
first of all hiring people, green peas as he called them
which were new people who did not know anything
about the business and getting the crews going and put
ting the guys on edge and having most of them leave
When asked if he could remember anything else that was
said during the conversation Barich testified, I in
having a hard time remembering Like I say it s been a
year and testified he was not able to recall what else
was said Neither Lane nor Lamaestra were questioned
about the above described remarks attributed to Lane
Nonetheless, I do not believe Barich s testimony His tes
timonial demeanor was poor and as I have discussed
supra he was not an unbiased witness and his credibility
was impugned by his grand theft conviction and the fal
sification of his employment application Moreover it is
evident from the way in which Barich s testimony was
given that he had a very poor recollection of what Lane
said during the meeting in question Also his testimony
that Lane mentioned something about hiring inexperi
enced salespersons in order to put the other salespersons
on edge and cause them to quit makes absolutely no
sense because Lane as Barich testified was supposed to
have stated that this was one of the tactics Respondent
would use if the salespersons stopped work in support of
the Union s strike
Respondents salespersons are represented by the
Union for purposes of collective bargaining The amount
they earn depends on the number of motor vehicles they
sell inasmuch as their earnings are based on the commis
lion they receive for each motor vehicle they sell As I
have noted supra the 1984-1986 agreement between Re
spondent and the Union was scheduled to expire on Jan
uary 31 1987 and despite meeting on a number of occa
sions from December 23, 1986, through April 2, 1987
the parties were unable to negotiate a successor agree
merit
1 The evidence
The amended consolidated complaint alleges that com
mencing on or about September 17 1986 and continuing
until on or about May 1, 1987, Respondent flooded its
sales floor by hiring inexperienced salespersons and by
increasing its sales force from approximately 20 to ap
proximately 30 salespersons, and alleges Respondent did
this for the purpose of decreasing employees commis
sions and to cause the termination of employees, and fur
ther alleges Respondent engaged in this conduct because
of its employees union membership and activities, there
by violating Section 8(a)(3) and (1) of the Act The evi
dence pertinent to this allegation is set forth in this sec
tion
In support of this allegation as well as the allegations
that Respondent independently violated Section 8(a)(1),
the General Counsel presented evidence, described in
detail supra, that Sales Manager Lamaestra told salesper
son Banch that Respondent did not intend to have the
Union represent its salespersons and intended to blow
out the Union, that General Manager Lane told apple
cant Cooper Respondent was trying to get rid of the
Union, that Lane told salespersons Banch Mundey,
Frye, and Parry that he intended to blow out the
Union and warned Frye Mundey and Parry that he
would terminate them if they talked to any of the sales
persons represented by the Union For the reasons set
forth supra I rejected this evidence
Likewise, I do not believe Barich s testimony that he
overheard Lane admit that Lane was flooding the
sales floor with too many salespersons for the purpose of
causing salespersons to quit and do not believe his fur
ther testimony that Lane told him if there was a strike,
Lane intended to hire inexperienced salespersons for the
purpose of 'putting the guys on edge and having most of
them leave My reasons for disbelieving Barich s testi
mony follows
Barich testified that a week before his March 15, 1987
discharge he had just finished talking on the telephone
in one of the sales offices immediately adjacent to the
sales floor when the following occurred He observed
Lane and another man standing directly in front of Bar
ich s office approximately 20 feet from where Barich was
sitting Barich had never seen this man before and did
not know his name Barich testified he observed Lane
bend his head toward the stranger so as to prevent
others from hearing what he was saying, but that never
theless Barich overheard Lane state what I in doing is
keeping the floor flooded out so that hopefully these
guys will quit at which point according to Barich,
both Lane and the man he was talking to observed that
Barich was looking in their direction so they walked off
to the side and Barich was unable to hear anything else
that was said Lane, whose testimonial demeanor was
better than Barich s, specifically denied making the
remark attributed to him As I have discussed in detail
supra the credibility of Barich whose testimonial de
meanor was poor, was further impugned by his grand
theft conviction and the falsification of his employment
application Also as discussed, Barich was not an unbi
HAYWARD DODGE
Dunng the first 7 months of 1986, Respondent sold
substantially fewer motor vehicles than in 1985 and was
losing money in 1986, whereas in 1985 it had made a
profit In August 1986, to remedy this situation, Re
spondent s owner hired as Respondents vice president
and general manager Mark Lane an experienced sales
motivator with a history of success in increasing the sales
of automobile dealerships Lane assumed his position as
general manager the first week of September 1986 and
subsequently instituted a program to stimulate sales This
program included increased cash bonuses and incentives,
sales contests, better work schedules, salespersons were
relieved from performing nonsales duties, a customer re
lations manager was employed, the hours of the service
department were extended in an effort to encourage cus
tomers to buy cars from Respondent, training programs
were improved and guest speakers spoke to the salesper
sons about the products they were selling Also in an
effort to attract more customers, Lane substantially in
creased the Respondents inventory of automobiles and
substantially increased the advertising budget During
the period from September 1986 through January 1987
Respondent spent approximately $55,000 a month for ad
vertising and during the months of February and March
1987 more than doubled this expenditure, spending ap
proximately $125,000 in each of those months for adver
tising In November, when the value of Respondent's in
ventory of motor vehicles totaled between $4 and $5 mil
lion, Lane placed orders for additional motor vehicles so
as to increase the inventory to $6 5 million These new
cars were delivered from the manufacturer during the
period from December through February 1987
Lane s campaign to increase the sales of the dealership
was a success During the 8 months prior to Lane s em
ployment, January through August, Respondent sold
1427 units or an average of 178 3 a month whereas from
September through December it sold 956 units or an av
erage of 239 a month In fact during Lane s tenure of
employment-September 1986 through June 1987-Re
spondent ranked as the number one Dodge dealership in
Northern California in terms of the number of motor ve
hicles it sold 19 However Respondent still lost money
During the calendar year 1986 it lost over $462 000 and
lost money during the majority of the months in which
Lane was employed It was Lane s inability to operate
the dealership at a profit, which resulted in June 1987 in
his discharge
It is undisputed that Lane wanted his salespersons to
be aggressive in their dealings with customers and felt
that some of the salespersons who were there when he
became general manager were not aggressive enough in
their sales techniques and was unhappy about this It is
also undisputed that Lane's belief that high volume sales
required aggressive salespersons was a belief he had held
for several years and which he felt was responsible for
19 Dunng the period from September 1986 through May 1987 Re
spondent sold the following number of motor vehicles September-249
October-226 November-200 December-281 January-169 Febru
ary-193 March-209 Apnl-172 and May-187 I note that December
was an abnormally high month for sales because of the change in Federal
tax laws effective the next year which encouraged customers to purchase
their new cars before the end of the 1986 tax year
441
his previous successes in selling automobiles at other
dealerships
In September, when Lane became general manager,
Respondents salespersons were divided into two shifts
those on the first shift began work when the dealership
opened for business and left at 3 p in, whereas those on
the second shift began work at 3 p in and left when the
dealership closed for business in the evening In either
late January or early February 1987 Lane stopped using
two shifts and switched to a four crew system Under
this system Respondents salespersons, with a few excep
tions, were divided roughly into four separate crews
each crew having its own crew chief 2° The crews start
ed and ended their workdays at different hours, i e , one
crew began work at 8 a in and left at 3 30 p in and an
other began work at 11 am and left at 3 p in The
crews work schedules were arranged so that approxi
mately 3 or 4 hours a day there was an overlap of three
of the crews In other words for a period of approxi
mately 3 or 4 hours daily approximately 75 percent of
Respondents sales force was on the sales floor together
Lane testified his reasons for establishing the four crew
system were as follows The competition between the
crews, which Lane encouraged by a series of contests
and bonus programs designed to reward salespersons
based on the sales of their crew, was calculated to mote
vate the salespersons to sell more cars, the more experi
enced salespersons who had been appointed crew chiefs
were in a position to give assistance to those salespersons
on the crews with less or no experience, the new system
gave the salespersons 4 consecutive days off once a
month and enabled them to know what their work
schedules would be for a 12 month period and the new
system allowed Respondent to hold smaller training ses
sions and allowed its salespersons to leave the sales floor
to check out Respondents inventory which was scat
tered over a two block area
Lamaestra, Respondents sales manager, testified that
during the period he was employed when Respondent
maintained its four crew system, that it hired between 5
and 10 inexperienced salespersons-known as green
peas because they had no prior experience selling auto
mobiles Lamaestra testified the reason for employing in
experienced salespersons was there was a shortage of ex
perienced salespersons in the industry and as a result
there were not enough experienced applicants to fill job
vacancies 21 In this regard, the record reveals that
during the period involved in this case it was difficult for
automobile dealerships to hire experienced salespersons
because the demand for experienced salespersons had in
creased significantly because of the opening of new deal
erships including those dealerships that were selling
automobiles that had only recently come onto the
market, i e the Hyundai
Barich testified in December while talking with Lane
he mentioned that an automobile dealership he had for
merly worked for used green peas -inexperienced
20 I note that one of the four crew chiefs appointed by Lane was the
Union s steward
21 Lamaestra and Lane each testified in effect that in the past prior to
working for Respondent they had hired inexperienced salespersons
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
salespersons to meet customers and bring them into the
sales office, where Barich would "slam the deals togeth-
er." Lane, according to Barich's testimony, stated he
thought this was an excellent idea because "he felt the
union people that were there were prima donnas" and
stated "he just did not care for them at all" because
"they were slow paced" and that "the young kids would
go out there . . . and grab the deals and bring them up
with excitement and stimulate business." This was Bar-
ich's testimony given during his direct examination.
During cross-examination , Barich testified in effect that,
rather than use the phrase "union people," Lane used the
term "older people." Barich testified that Lane stated,
"he felt that the older people who were there were
prima donnas and that perhaps some new people would
stimulate things, would stimulate business ." Assuming
Lane made these remarks'22 I find he did not use the
term "union people," as Barich initially testified, but used
the term "older people," as Barich later testified on
cross-examination.
Barich also testified that in January 1987, shortly
before the February 2 hire of inexperienced salespersons
Frye, Mundey, and Parry that Lane asked Barich to
review the applications of the persons who had applied
for jobs as salespersons and to have those whom he felt
would be good salespersons come in for an interview.
The next day Barich advised Lane that he had asked five
of the applicants to come in for interviews. Barich testi-
fied that Lane responded by stating that when the appli-
cants came in for the interviews that Barich should walk
them around the dealership as if he was planning to hire
them so that "the prima donnas would get real tight."
Lane testified that in March 1987 he learned from a
leaflet shown to him by a salesperson that the Union in-
tended to call a strike by Respondent's salespersons in
support of the Union' s bargaining position. Lane testified
he met with his sales managers early in March 1987 and
they discussed how Respondent would operate in the
event of a strike and that during this period Respondent's
lawyer sent him a strike preparation kit and Lane in-
structed Respondent's business office what steps to take
in case there was a strike. Lamaestra, one of the two
sales managers , testified Lane indicated he was con-
cerned about which of the salespersons would support a
strike called by the Union. Lane testified that he was not
in fact concerned about the salespersons striking because
the shop steward for the Machinists Union, the union
that represented the employees employed in Respond-
ent's shop, had advised Lane that under no circum-
stances would the shop employees honor the salesper-
sons' picket lines if they went out on strike. It is undis-
puted that Sales Manager Lamaestra told the salesper-
sons, at one of their regular scheduled sales meetings,
that if a strike occurred he would like to see all of them
remain at work and there would be work available for
those who decided not to strike, but it would be fine if
22 As I have indicated supra, I am extremely reluctant to credit Bar-
ich's testimony concerning any matters of significance because of his
poor testimonial demeanor and the several other factors, supra, which
impugn his credibility.
some of them decided not to work on account of the
strike.
Regarding the number of salespersons employed
during the time material, the only competent and reliable
eMidence on this subject is General Counsel's Exhibits
16(a)-(d), information taken from the Company's payroll
and other business records kept during the normal course
of business, which encompassed the period December 1,
1986, through March 31, 1987.23 During this period of
time, Respondent employed the number of salespersons
set forth as follows:24 December 1, 23 salespersons; De-
cember 1 through 16 the number fluctuated between 22
and 23; December 17, it increased to 24, and on Decem-
ber 22 it increased to 25; it remained at the 25 level until
January 13 and from January 13 to February 2 fluctuated
between 23 and 24 salespersons;25 February 2, with the
start of the four-crew system and the commencement of
the employment of inexperienced salespersons, the
number of salespersons in Respondent's employ increased
from 23 to 26; February 10, it increased to 28; February
17, it increased to 29; February 18, decreased to 28; fluc-
tuated between 26 and 28 between February 18 and
March 12; March 12, increased to 30; fluctuated between
29 and 30 between March 12 and March 16; March 16,
decreased to 25; March 18, increased to 27; and, from
March 28 to the end of the month fluctuated between 26
and 28,26 with 26 having been employed since March 28
23 General Manager Lane testified that when he began work for Re-
spondent during the first week of September 1986 that he "suspects"
there were approximately 24 to 28 salespersons employed, or approxi-
mately 26, give or take a few, and further testified that by December
1986 the sales force had increased from about 26 to about 28 or 30 and
that in March 1987 Respondent employed between 22 and 24 salesper-
sons. Sales Manager Lamaestra testified that during the September 1986-
March 1987 period the number of salespersons fluctuated constantly be-
tween 20 and 25. Crew Chief Barich testified that when he started work
on December 3, 1986, Respondent employed approximately 19 or 20
salespersons and that beginning in late January or early February 1987,
when the four-crew system was instituted, Respondent employed ap-
proximately 30 salespersons. I have not relied on Lane's, Lamaestra's, or
Barich's above-described testimony because when it is compared with the
information contained in G.C. Exhs. 16(a)-(d), based on Respondent's
business records kept during the normal course of business, it is obvious
that their testimony concerning the number of salespersons employed
during the times material was completely unreliable. This is not surpris-
ing given the nature of the evidence involved and the passage of time. In
my opinion the only competent and reliable evidence concerning the
number of salespersons employed during the time material is set forth in
G.C. Exhs. 16(a)-(d), information compiled from Respondent's payroll
records kept during the normal course of business.
24 G.C. Exhs. 16(a)-(d) list the names of the salespersons employed by
Respondent during the period December 1, 1986, through March 31,
1987, and show the dates of hire and termination of those hired and ter-
minated during that period. I relied on these exhibits in reaching my con-
clusions concerning the number of salespersons employed during the
period of December I, 1986, through March 31, 1987. In doing so I con-
cluded that a salesperson was employed on the date the exhibits state he
or she was hired or terminated, making the assumption that the employee
started work on the hire date and worked on the day of his or her termi-
nation. In the case of Reynaldo Rivera I concluded his employment ter-
minated January 30, 1987, the termination date shown on a document
contained in his personnel file. Lastly, I concluded that Kim Primrose
and Michael Levy, whose names do not appear on G.C. Exh. 16(d), were
employed during March 1987 inasmuch as the record as a whole reveals
that they were employed during that month and there was no showing
that either of them were terminated in February 1987.
25 For a period of I day, January 23, it reached a total of 25.
26 On one day during this period, March 22, the number dropped to
25.
HAYWARD DODGE
to the end of the month There is no record evidence
whatsoever as to the number of salespersons employed
after March 31, 1987
The record (G C Exhs 16(a)-(d)) further reveals that
during the period from December 1 1986, through
March 31, 1987 Respondent hired 26 salespersons and
that 22 were terminated, referring to discharges or vol
untary quits More specifically, the record shows 6 hires
and 3 terminations in December, 2 hires and 4 termina
tions in January, 6 hires and 3 terminations in February,
and 12 hires and 12 terminations in March
Regarding the dates of the hires and terminations
during the months of February and March the record
(G C Exhs 16(a)-(d)) shows three hires February 2, two
hires February 10, one hire February 17 one termination
February 17, one termination February 27, one termina
tion February 28, one hire March 3 one hire March 11,
two hires March 12, one hire March 15, one hire March
16, two hires March 18, one hire March 20, two hires
March 23, one hire March 24, one termination March 12,
six terminations March 15, two terminations March 20,
one termination March 21, one termination March 25,
and one termination March 27
2 Discussion
The complaint alleges that commencing on or about
September 17, 1986, and continuing thereafter until on or
about May 1 1987, Respondent flooded its sales floor
by hiring inexperienced salespersons and by increasing
the size of its sales force from approximately 20 to 30
employees, and that it did this for the purpose of de
creasing individual employees commissions and in order
to cause the termination of employees and further al
leges that Respondent engaged in this conduct because
its employees joined or assisted the Union, thus violating
Section 8(a)(3) and (1) of the Act For the reasons set
forth below this allegation is without merit
Initially, I note the evidence does not support the alle
gation that Respondent flooded the sales floor by
adding approximately 10 more salespersons, an increase
of approximately 50 percent to its sales force Rather the
record shows that during the 2 month period from De
cember 1 1986 to February 2 1987 that the number of
salespersons in Respondents employ constantly fluctuat
ed between 23 and 2527 and during the succeeding 2
month period from February 2 1987 through March 31
1987 the number of salespersons constantly fluctuated
between 26 and 28 28 The record also reveals that during
the period between December 1 1986 and March 31
1987 that 22 salespersons left Respondents employ and
all 22 were replaced by new hires and that in addition to
hiring of these 22 replacements 4 other salespersons
were hired during this 4 month period In other words,
when the 2 month periods of December 1-February 2
and February 2-March 31 are compared the record re
veals that the number of salespersons employed during
27 On 3 nonconsecutive days during this period the number of salesper
sons dropped to 22
28 During this period the number of salespersons dropped to 25 on 3
nonconsecutive workdays and on 3 nonconsecutive days increased to 29
and on 2 nonconsecutive days increased to 30
443
the latter period increased by three or four This increase
cannot be characterized, as alleged in the complaint as a
flooding of the sales floor with additional salesper
sons 29 Rather it constitutes only a modest increase of
between approximately 13 and 15 percent from the
number employed previously
Regarding the allegation that Respondent flooded
the sales floor by hiring inexperienced salespersons the
record reveals that during the first 3 months of 1987 Re
spondent hired between 5 and 10 inexperienced salesper
sons of whom approximately 4 were hired during the
period in February and March 1987 when Respondent
increased its complement of salespersons by between ap
proximately 13 and 15 percent
Having found that during the 2 month period of Feb
ruary 1987 through March 31 1987 Respondent hired
approximately four inexperienced salespersons and in
creased its complement of salespersons by three or four,
the question to be decided is whether the General Coun
sel has made a prima facie showing that this conduct was
discriminatorily motivated and, if so, whether Respond
ent has proven it would have hired three or four more
salespersons including the inexperienced ones, even in
the absence of the employees union sympathies and/or
activities For the reasons set forth below, I find the
General Counsel has failed to make a prima facie show
mg of a violation
In evaluating Respondents motivation for increasing
its complement of salespersons and hiring inexperienced
salespersons it is highly significant that there is no credi
ble evidence of any statement or other conduct by Re
spondent that would warrant the inference Respondent
was antagonistic toward Respondents salespersons for
being represented by the Union or for being union adher
ents, or was antagonistic toward them because it ap
peared that the Union intended on asking them to cease
work to engage in a strike against Respondent in support
of the Union s position at the bargaining table Although
General Manager Lane was unhappy with several of the
salespersons he was unhappy with them not because of
union considerations but because they did not subscribe
to his aggressive sales techniques, which he felt were es
sential to increase Respondents sales volume Indeed
during the times material to this case all new hires were
instructed by Respondent to go to the Union and join
the Union as required by the contractual union security
provision Also in late January or early February 1987
when Lane implemented the system of four sales crews,
the union shop steward at the dealership was designated
by Lane to be one of the four crew chiefs not the type
of conduct for an employer that was supposedly engaged
in a course of conduct designed to cause its prounion
salespersons to voluntarily terminate their employment
29I recognize that in late January or early February 1987 Respondent
instituted its system of four sales crews which resulted in approximately
75 percent of its sales force being on the sales floor together each day for
a period of approximately 3 or 4 hours The complaint does not allege
that the system of four sales crews was instituted for improper discrimi
natory reasons and there is no evidence of this Quite the contrary as
described supra General Manager Lane instituted this system of four
sales crews because of legitimate business considerations as part of his
program to increase sales
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That Respondent was not antagonistic toward its em
ployees because of their union sympathies or activities is
further shown by the fact that in March 1987 when Sales
Manager Lamaestra spoke to the salespersons about the
possibility of a strike being called by the Union, he told
the salespersons it would be fine if they stayed away
from work in support of the Union s strike
Counsel for the General Counsel does not contend and
the record does not reveal there was anything significant
about the timing of Respondents disputed conduct with
any kind of union activities Quite the opposite it was
early in February 1987 approximately 1 month before
Respondent was informed that the Union intended to call
the strike, when Respondent hired three inexperienced
salespersons and commenced to increase its complement
of salespersons
Respondents employment of inexperienced salesper
sons was perfectly understandable and not unusual given
the lack of job applicants with automobile sales expert
ence
Given the fact that Respondent during the months of
February and March 1987, in an effort to attract more
customers, purchased over a $1 5 million worth of auto
mobiles for its inventory and doubled the amount of
money it spent on advertising the modest 13 or 15 per
cent increase in the number of salespersons in its employ
dunng that period does not seem extraordinary 30 Nor
is Respondents conduct of substantially increasing its in
ventory of cars for sale and substantially increasing the
amount of money it spent for advertising to bring adds
tional customers to the dealership during the months of
February and March 1987 the type of conduct Respond
ent would have engaged in if it was as the General
Counsel claims engaged in a course of conduct designed
to reduce its prounion salespersons sales opportunities in
order to force them to terminate their employment or to
afford Respondent an opportunity to fire them for poor
productivity 31 The fact that Respondent was losing
money does not make its employment of the additional
salespersons suspect inasmuch as the employment of sev
era] additional salespersons added very little to Respond
ent s costs because salespersons are not salaried or hourly
wage earners but are paid a commission for each car
they sell
It is for all the above reasons that I find the General
Counsel did not make a prima facie showing that Re
spondent when it increased the number of salespersons
and employed inexperienced salespersons was motivated
by salespersons union sympathies or activities In reach
mg this conclusion I considered that during the period
from February 2 through March 31 1987, the period of
time during which Respondent increased its sales force
sales were substantially lower than December 1986,
when Respondent employed fewer salespersons '32 and
30 As I have indicated supra there is no reliable evidence in the record
concerning the number of salespersons employed after March 31 1987
31 I note that the amended consolidated complaint does not allege that
any of Respondents salespersons were terminated for their union sympa
thies or activities or were constructively discharged as a result of Re
spondent s conduct and there is no evidence of this
32I agree with the General Counsel that the sales figure of 209 for
March 1987 is misleading because 58 of these vehicles were sold by sales
also considered that General Manager Lane did not ex
plain why Respondent increased its complement of sales
persons during the February-March period even though
it was a slow sales period 33 Nevertheless when these
factors are viewed in light of the whole record, specifi
cally the considerations discussed above, they are insuffi
dent to warrant the inference that the union membership
and/or activities of Respondent s salespersons was a
factor that motivated Respondent when it hired inexperi
enced salespersons and increased the number of salesper
sons in its employ during the months of February and
March 1987 from the number that had been employed
during the preceding 2 month period
Based on the foregoing I find the General Counsel has
failed to make a prima facie showing that it was the
union membership or activities of its salespersons that
motivated Respondent to hire inexperienced salespersons
and to increase the number of salespersons in its employ
during the months of February and March 1987 I there
fore shall recommend the applicable complaint allega
tions be dismissed in their entirety
D The Alleged 8(a)(5) and (1) Violations
1 The evidence
Respondents collective bargaining contract with the
Union (the 1984-1986 agreement) was effective by its
terms from February 1 1984 to January 31 1987 Sec
tion 20 of the agreement provides that if neither party,
prior to 60 days before the January 31 1987 anniversary
date gives the notice of desired changes this agreement
shall be automatically renewed for another year, and
where such timely reopener notices have been given
section 20, among other things further provides The
parties shall promptly arrange for and enter into negotia
tions in respect to the specific changes desired In the
event the parties mutually agree by the anniversary date
on the changes proposed in the sixty (60) day notice or
on other changes in place of those proposed the same
shall be incorporated into and made part of this Agree
ment
Pursuant to section 20 of the agreement the Union and
Respondent by letters dated November 26 1986, in
formed one another that they desired to make changes in
the terms of the 1984-1986 agreement specified which
sections of the agreement they desired to change and
asked that negotiations be scheduled The parties in their
respective letters each specifically stated that they re
served the right during contract negotiations to amend,
change add to or revise the list of changes enumerated
in their reopening letters
person Mark Buehl who did not work on the sales floor with the other
salespersons and whose clientele consisted of a special group of custom
ers regarded by other dealerships as high credit risks
33 As I have found supra Lanes testimony that Respondents comple
ment of salespersons fluctuated between 22 and 24 dunng the times mate
rial was not credible But considering the nature of the testimony-the
number of salespersons employed approximately 1 year prior to the hear
ing-it is not readily apparent that he deliberately fabricated this testimo
ny rather than that the passage of time simply dulled his memory con
cernmg the specific numbers involved
HAYWARD DODGE
In December prior to the parties first negotiation ses
sion, Respondents principal negotiator Attorney Marcia
Hoyt met with Respondents owner, Hank Turian and
its general manager Mark Lane Turian gave Hoyt an
idea of what he expected from the upcoming contract
negotiations He said he wanted a new compensation
program that tied compensation to productivity and felt
that the 30 percent commission for all sales34 was too
high and that a 25 percent commission rate for salesper
sons who did not sell an average number of automobiles
was more appropriate and that salespersons who sold
more than 15 units per month should receive a higher
rate of 35 percent or 40 percent Turian also stated he
wanted to increase the pack to 4 percent because the
cost of getting a motor vehicle ready for sale had in
creased substantially and, with respect to other current
terms and conditions of employment, advised Hoyt, as
follows No increase in current vacation benefits, a re
duction in the minimum commission, an increase in the
number of holidays and in the number of hours Respond
ent could be open for business the removal of the sales
person who handled fleet sales from the bargaining unit
a revised grievance procedure that would reduce the
number of stale grievances, the salespersons health wel
fare, and pension benefits to be covered by Tasha Corpo
ration s plans rather than the Union s plans Turian also
informed Hoyt that because of serious financial difficul
ties Respondent needed financial relief if it was to con
tinue to operate
The parties held their first negotiation meeting on De
cember 23 1986 and from December 23 through April
2, 1987 held 13 negotiating sessions Attorney Hoyt was
Respondents spokesperson for purposes of the negotia
tions President Salvaressa was initially the Union s
spokesperson and thereafter Daniel Bullen, a representa
tive of the Union s International Union, assumed that po
sition
a The December 23 1986 negotiating session
Present at this negotiating session were Union Presi
dent Salvaressa and Union Business Agent Yates Ken
dricks and for the Respondent Attorney Hoyt and Gen
eral Manager Lane
Prior to the meeting Salvaressa and Hoyt had agreed
to exchange contract proposals Both came with written
contract proposals Nonetheless at the outset of the meet
ing they each stated they did not have a contract propos
al to submit Hoyt threatened to file an unfair labor prac
tice charge with the Board if the Union did not submit a
proposal Salvaressa and Kendncks left the room and re
turned in approximately 20 minutes with a one page
typed proposal dated December 22 Hoyt asked Sal
varessa to explain some of the items in the proposal Sal
varessa stated he did not intend to discuss the Union s
proposal until Respondent submitted its proposal Hoyt
34 The 1984- 1986 agreement called for salespersons to receive a 35
percent commission for all motor vehicles sold but as also called for in
the agreement what actually took place was that the salesperson re
ceived a commission of 30 percent with the remaining 5 percent being
paid to an employee classified as a closer whose job it was to assist the
salesperson in structuring the terms of a sale in order to get as much
money as possible from the customer and to close the sale
445
tried to get him to discuss that part of the Union s pro
posal that called for the deletion from the 1984-1986
agreement of the section dealing with closers Sal
varessa responded by stating he wanted to see Respond
ent s proposal before they started to negotiate and stated
he did not believe Hoyt was in a position to begin nego
tiations without a company proposal and that he did not
believe she was there to negotiate a contract Hoyt
wrote on a piece of paper that Respondent was propos
ing to delete the contractual provisions dealing with
closers and handed it to Salvaressa who repeated he
would not negotiate until Respondent submitted a con
tract proposal Hoyt stated she only recently had spoken
with Respondents owner Turian and had not had time
to put together a full and complete contract proposal
but would submit a full and complete proposal to the
Union by the end of the month The meeting concluded
with the parties agreeing to meet again on January 5
1987
During the December 23 bargaining session General
Manager Lane stated the dealership was losing money
and could not continue doing business in that fashion
without either going out of business or ending up in
bankruptcy He told the union negotiators that the sales
force just stood around on the sales floor and did not
prospect for customers and as a result were not selling
as many motor vehicles as they were capable of selling
Lane who had dust started working for Respondent in
September 1986, stated he expected his salespersons to be
more aggressive
In the contract proposal it submitted to the Respond
ent at the December 23 bargaining session the Union
proposed the following changes in the 1984-1986 agree
ment The deletion of the section dealing with closers an
increase in Sunday premium pay from $0 to $75, an in
crease in minimum sales commission from $100 to $200 a
reduction of the pack for domestic motor vehicle from 2
percent to 1 percent and for imported motor vehicles
from 3 percent to 2 percent 35 an increase from $500 to
$750 in the bonus for selling 10 vehicles a month and
from $1000 to $1500 for selling 15 an increase in the
monthly draw from $1500 to $2000 for salespersons em
ployed for more than 90 days and from $1000 to $1500
for those employed less than 90 days an increase from
$175 to $350 in the monthly payment to salespersons in
lieu of the use of a demonstrator automobile, an increase
in the number of weeks of vacation for salespersons em
ployed for 5 or more years36 and whereas the 1984-1986
agreement provided that vacation pay be a lump sum of
money i e $300 for 1 weeks vacation the Union pro
posed that vacation pay be computed as a percentage of
a salespersons prior earnings i e , a weeks vacation to
be paid at 1/52 of the prior year s earnings
as A salespersons commission is based on a percentage of the gross
profit of the transaction The pack which is a percentage of the vehicle s
factory invoice refers to the cost to the dealer of preparing delivering
and getting ready a motor vehicle that is sold The pack is deducted from
the gross profit prior to figuring the salespersons commission thus the
higher the pack the lower the salesperson s commission
36 The agreement provided that after 5 years a salesperson would re
ceive 3 weeks of vacation The Union proposed that after 5 years they
would receive 4 weeks vacation and after 7 years 5 weeks
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On December 24 Hoyt spoke with Clarence Washing
ton a mediator employed by the Federal Mediation and
Conciliation Service, and asked that he attend the sched
uled January 5, 1987 bargaining session Washington did
not attend this session because in agreement with Union
President Salvaressa he stated he believed it would be
premature for him to become involved at such an early
stage Hoyt testified she contacted Washington because
she thought there was going to be difficulty in the nego
tiations, because of Salvaressa s refusal at the December
23 negotiating session to discuss the Union s proposal
and because it had been Hoyt s experience with the
Union in negotiations involving other employers, that the
negotiations went more smoothly with a mediator
present
On December 30 Hoyt instructed her secretary to send
the Union the contract proposal she had prepared On
the morning of January 5, 1987 Salvaressa received by
mail a letter signed by Hoyt, which stated, enclosed
please find the counter proposal [of Respondent] to your
initial proposal When Salvaressa discovered there was
nothing enclosed in the letter he telephoned Hoyt and
advised her of this and Hoyt responded by stating she in
advertently had failed to enclose the Company s propos
al Salvaressa received the proposal from Hoyt at the
start of the January 5 negotiating session held later that
day
b The January 5 1987 negotiating session
Respondents contract proposal submitted to the Union
on January 5 was a complete contract proposal It in
cluded changes in sections of the 1984-1986 agreement
which were not among the sections listed in Respond
ent s November 26 reopening letter, which specified the
sections of the agreement Respondent wanted to change
In its January 5 contract proposal Respondent sought to
change virtually every section of substance in the 1984-
1986 agreement and to add several new provisions of
substance to the agreement These changes were favor
able to Respondent and almost all of them took away or
reduced employees wages and benefits enjoyed under
the agreement The Union s lawyer David Rosenfeld 37
took the position, which he expressed to Hoyt, that only
those sections of the agreement listed in the parties re
spective November 26 reopening letters could be the
subject of negotiations Hoyt objected A substantial part
of the 2 1/2 hours that this session lasted consisted of
Rosenfeld reviewing each of the items contained in Re
spondent s January 5 proposal and advising Hoyt wheth
er they were properly open for negotiations or not 38
31 This was the only negotiating session attended by Attorney Rosen
feld For the remaining sessions Sullen was the Union s spokesperson
and was accompanied by Salvaressa and/or Kendricks Attorney Hoyt
was Respondents spokesperson at each of the negotiating sessions except
for one of the sessions held in February 1987 and was usually accompa
flied by General Manager Lane
38 The record reveals that toward the very end of the January 5 bar
gaining session or at the next bargaining session the Union s negotiators
indicated they were prepared to negotiate concerning all of the items set
forth in Respondents January 5 proposal but would do so without waiv
ing the Union s position that legally the only subjects open for negotia
tion were those encompassed by the parties November 26 reopening let
ters
But in reviewing the proposal there was some discussion
about some of the items it contained The meeting ended
with Hoyt stating she desired to conclude the negotia
tions as quickly as possible and referring to the Union s
position that the negotiations were limited to the sections
of the 1984-1986 agreement enumerated in the parties
November 26 reopening letters, stated she would not tol
erate that kind of bullshit and that if it took Federal
mediation she would get a Federal mediator involved
immediately The Union s negotiators refused to agree to
this stating it was not necessary to call in a Federal me
diator at that point
It is undisputed that during this negotiating session as
well as during other sessions, Hoyt and Lane told the
union negotiators that the reason Respondent submitted
its January 5 proposal which took away and reduced
numerous benefits currently enjoyed by the employees
was that under the provisions of the 1984-1986 agree
ment Respondent was unable to operate competitively
and was losing money and because of this could not
afford to operate without the changes in the 1984-1986
agreement set forth in its January 5 proposal
Respondents January 5 contract proposal changed the
existing agreement as follows (1) deleted the truck
salesman classification (2) changed the definition of
Fleet Buyer from someone operating a business with
five or more vehicles to someone who had been issued a
bona fide fleet number by a manufacturer (3) deleted the
classification of closer , (4) changed that part of the
union security agreement that stated that employees shall
become and remain union members as a condition of em
ployment to read that employees shall meet the financial
obligation required to become and remain union mem
bers as a condition of employment (5) the agreement
stated Sunday work was voluntary for employees and al
lowed them to work on just three holidays-Memorial
Day Independence Day and Labor Day-and restricted
the number of employees Respondent could employ on
those three holidays and on the day after Thanksgiving
and the days after Christmas and New Year s Day
which were also voluntary workdays for the employees,
whereas Respondent proposed that all of these provisions
be deleted from the agreement and Respondent be al
lowed to operate on Sundays and holidays without limi
tation during the hours from 10 a in to 7 p m 39 (6) Re
spondent proposed to be open for business from 9 a in to
8 p in on Saturdays and from 8 30 a in to 9 p in during
weekdays, whereas under the agreement Respondent
during the period May I through October 31 operated
on Saturdays from 9 a in to 6 p in and during weekdays
from 9 a m to 9 p in and during the period of Novem
ber I through April 30 operated from 9 am to 8 p m,
(7) the agreement placed stringent limits on Respondent s
ability to schedule special sales events, whereas Respond
ent proposed it be allowed to schedule 12 special sales
events per year with unlimited hours, (8) deleted the pro
vision that prohibited Respondent from requiring or per
mitting employees to work more than 8 hours a day
39 Under the 1984-1986 agreement on Sundays and on the three hole
days it was allowed to open for business Respondent could operate from
11 am to5pm
HAYWARD DODGE 447
during the week and more than 9 hours on a Saturday
(9) changed the provision that stated Respondent shall
adjust the floor time so that all employees shall have
equal advantage to read simply employer shall rotate
floor time , (10) under the agreement the employees
regular workweek was defined as Monday through Sat
urday, whereas Respondent proposed the workweek be
Monday through Friday or Tuesday through Saturday,
or Wednesday through Sunday, (11) under the agree
ment Respondent could not require a salesperson to
attend a sales meeting on his or her day off and the
agreement required that employees weekly work sched
ules be posted no later than the Friday preceding each
workweek, whereas Respondent proposed that a sales
person be required to attend sales meetings on his or her
day off and deleted the language that work schedules be
posted ahead of time, (12) under the agreement employ
ees were paid a 35 percent commission for each motor
vehicle they sold,40 regardless of the number sold
whereas Respondent proposed that the amount of an em
ployee s commission be tied to the number of motor ve
hicles sold and proposed specifically that salespersons
who sold 1 through 10 motor vehicles a month receive a
25 percent commission, 11 through 15 motor vehicles, a
30 percent commission and for the sale of 16 or more
motor vehicles, a 35 percent commission, and whereas
the agreement provided for a minimum commission of
$125 for the sale of a new motor vehicle, Respondent
proposed a minimum commission of $100, (13) proposed
raising the pack for domestic vehicles from 2 percent to
4 percent and for imports from 3 percent to 4 percent 41
(14) deleted that part of the agreement that gave employ
ees the right to `shop any trade,' namely to have other
dealerships appraise a customers trade in and if another
dealerships appraisal exceeded Respondents appraisal by
more than $100, the salesperson had the right to sell the
trade in to the other dealership if Respondent refused to
meet the higher appraisal price (15) deleted the part of
the agreement that gave employees the right to engage
in fleet business and proposed that all fleet sales be ex
cluded from the coverage of the agreement (16) in
creased the pack for used motor vehicles from $175 to
$250, (17) deleted the incentive bonus provision under
which salespersons received a $500 bonus for selling 10
motor vehicles a month $1000 for selling 15, and $100
for each vehicle sold over 15 (18) under the agreement
salespersons employed for 90 days or less received a
$1000 a month draw and those employed for more than
90 days received a $1500 a month draw, whereas Re
spondent proposed a new classification for salesperson
called beginner salesperson which it defined as some
one who had not been employed by Respondent for 6
months continuously within the past 3 years, and Re
spondent proposed that beginner salespersons receive an
$800 monthly draw and, with respect to all the salesper
sons in its employ proposed if they earned less than their
monthly draw that the deficit not be automatically re
40 As noted supra although the rate of commission under the agree
ment was 35 percent the salespersons only received 30 percent as the ad
ditional 5 percent was paid to the unit employee employed as a closer
41 As described supra raising the pack had the effect of reducing the
salesperson s commission
moved from their record after 90 days as provided in
1984-1986 agreement, (19) under the agreement each
salesperson was furnished a single itemized statement
each month concerning all of their sales whereas Re
spondent proposed separate itemized statements be issued
after each sales transaction during the month (20) delet
ed the section of the agreement which provided that
demonstrator automobiles be furnished to each salesper
son or in lieu of furnishing a salesperson with a demon
strator pay him or her $175 a month, (21) deleted the
section of the agreement prohibiting Respondent from
soliciting donations or contributions from union mem
bers, except by agreement of the Union (22) under the
agreement a terminated employees vacation pay could
be prorated for that part which was less than 1 month
whereas Respondent proposed to delete this (23) under
the agreement if salespersons commissions were miscal
culated or they were otherwise underpaid, they could
only collect backpay for 60 days and if it was shown that
they were underpaid for more than 60 days Respondent
was required to pay a specified sum of liquidated dam
ages to a charity, whereas Respondent proposed to
delete the liquidated damages provision and thus limit its
backpay obligation to 60 days, and further proposed that
all employees compensation grievances be submitted to
Respondent in writing within 5 days of the occurrence
that gave rise to the grievance whereas under the agree
ment the employees had 30 days to file such a grievance
(24) proposed to delete the section of the agreement pro
viding for health and welfare benefits for retired employ
ees, (25) proposed to modify the contractual grievance
and arbitration procedure by eliminating the Board of
Adjustment, which was a part of the grievance machin
ery by limiting the arbitrators authority to award back
pay to no more than 30 days from the date the grievance
was filed and by deleting that part of the agreement that
permitted a party to engage in economic action-strikes
or lockouts-if the other party failed to comply with an
arbitrators decision (26) deleted that part of the agree
ment that stated it was not a violation of the agreement s
no strike clause for an employee of Respondent to refuse
to cross a sanctioned picket line and (27) proposed dif
ferent language to replace the language in that section of
the agreement entitled Term of Agreement
In addition to proposing the above described changes
in the existing agreement Respondent proposed the fol
lowing new provisions (1) A provision allowing Re
spondent to terminate any salesperson for lack of per
formance if he or she sold less than 10 motor vehicles a
month unless Respondent felt there were circumstances
justifying the employees failure to meet this minimum
unit sales requirement (2) a provision that moneys owed
by employees to Respondent could be charged back
against vacation pay or commissions, (3) a combined
zipper and management rights clause which, in sub
stance, provided that the terms of the parties' agreement
were subject to change only by a subsequent written
agreement, that the waiver or breach of any term or con
dition contained in the agreement did not constitute a
precedent, that Respondent had the right to unilaterally
change the terms and conditions of employment not cov
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ered by the agreement , that "no right or function of
management shall be limited by any practice or course of
conduct or otherwise than by express provision of this
Agreement," and that any "function not expressly limited
by this agreement may be exercised unilaterally by the
Employer"; and (4) proposed a most-favored-nation
clause, which provided that if the Union entered into an
agreement with an automobile dealership operating
within Respondent's geographical sales area, which con-
tained terms and conditions more advantageous to that
dealership than those contained in the Union' s agreement
with Respondent, or should the Union permit a dealer-
ship under contract with it within Respondent's geo-
graphical sales area to operate under more advantageous
terms and conditions than provided by the Union's
agreement with Respondent, the Respondent would be
privileged to adopt the advantageous terms and condi-
tions, provided it notified the Union in writing it intend-
ed to implement such terms or conditions.
During the January 5 bargaining session , the negotia-
tors engaged in the following discussions about the pro-
visions included in Respondent's contract proposal.
Regarding the deletion of the classification of closer
from the agreement, Hoyt explained Respondent no
longer employed closers because its two sales managers
now did the work previously performed by closers and
because the sales managers were statutory supervisors
they should not be covered by the contract. Salvaressa,
after satisfying himself that the sales managers were stat-
utory supervisors, agreed to delete closers from the cov-
erage of the agreement.
Regarding the exclusion of fleet sales from the cover-
age of the agreement, Salvaressa stated the Union was
concerned Respondent would take the position that sales
to customers who were members of credit unions or
automobile associations were fleet sales. Hoyt stated this
was not Respondent's intent, it considered the sale of an
automobile to a business enterprise to be a fleet sale, and
agreed to furnish the Union with a definition of fleet
sales.
Regarding the termination of employees who sold less
than 10 motor vehicles a month, Hoyt explained Re-
spondent's salespersons were averaging only 5 or 6 sales
a month, that some were barely earning their draw, and
others were not even earning their draw, and it was be-
cause of this that Respondent needed the right to termi-
nate employees for poor productivity without the threat
of employees' grievances. Salvaressa stated that while
the Union did not object to Respondent terminating em-
ployees for poor productivity, it felt Respondent's pro-
posal was far too strict. Hoyt stated this was not suffi-
cient, that Respondent wanted a definition in the agree-
ment of what constituted unsatisfactory productivity be-
cause it was tired of being faced with a grievance each
time it discharged a salesperson for unsatisfactory pro-
ductivity, and asked the Union to come up with such a
definition. The Union's negotiators indicated they could
not agree to this concept.
Regarding the proposed classification for beginner
salespersons and the proposal that the beginner salesper-
sons receive a lower draw, Hoyt explained that the pro-
posal was based on a provision included in a contract
that the Union had with another dealership and stated
that if it was good enough for the other dealership it was
good enough for Respondent.
Regarding the proposals concerning Sundays and holi-
days and working hours and lower commissions, Hoyt
explained that Respondent's competition was open longer
hours and open on holiday and Sundays and paid less
than Respondent, so in order to successfully compete
Respondent needed those changes in the agreement.
Regarding the most-favored-nation clause, Hoyt ex-
plained that when she reviewed the Union's contract
with other dealerships she had discovered there were
three or four contracts where employers received a
better deal than Respondent, especially in the area of
holidays, hours of work, and commissions, and because
Respondent needed to be competitive with other union
dealerships, the most-favored-nation clause was neces-
sary. Bullen remarked that that union's International had
encountered a lot of problems with that type of a clause
in the retail food industry. Bullen and Attorney Rosen-
feld stated the Union would never agree to it.
Regarding Respondent's proposal dealing with accrued
vacation pay for terminated employees, Rosenfeld ques-
tioned the legality of deleting prorata vacation pay. Hoyt
told him that in making this proposal she relied on an
opinion from the State of California's labor commissioner
and would furnish him with a copy of the opinion.
Regarding the employees' pension benefits, the 1984-
1986 agreement provided for Respondent to make
monthly contributions to the Automotive Industries Pen-
sion Trust Fund (Fund) on behalf of its employees and
that the contributions and benefits were to be the same
as provided to the shop employees represented by Inter-
national Association of Machinists Local 1546 (Machin-
ists Union). The 1984-1986 agreement, with respect to
the employees' health and welfare benefits, provided for
Respondent to provide life insurance, hospitalization,
dental care, vision care, and prescription drugs for its
employees and their dependents by paying a monthly
sum to the fund and that the premium paid and benefits
provided were to be the same as provided to Respond-
ent's shop employees who were represented by the Ma-
chinists Union. In its January 5 proposal Respondent
stated it would submit its proposal on pension and health
and welfare fringe benefits when it received information
from the Union concerning the cost of the existing bene-
fits, including anticipated cost increases. During the Jan-
uary 5 bargaining session Hoyt told the union negotiators
she knew that the pension benefits cost $165 a month and
was just asking for information concerning the cost of
the health and welfare benefits. The union negotiators in-
dicated that Union Representative Kendricks would get
this information.
Regarding the proposed deletion of the contractual
provision providing retired employees with health and
welfare benefits, Hoyt explained it was not in all the
Union's contracts and because Respondent was having fi-
nancial problems and there were not very many retirees,
it felt this was a logical place to cut back its expenses.
Regarding Respondent's grievance proposal, Hoyt ex-
plained that it had been taken from the contract of an-
HAYWARD DODGE
other union and that Respondents reason for including
the time limits was that some grievances had been filed
by employees as many as 2 years after the act or event
that was being grieved and Respondent wanted griev
ances filed promptly and processed expeditiously so it
did not have several grievances hanging over its head
continuously Attorney Rosenfeld indicated the Union
would consider this proposal, but indicated that the
Union would like to stay with the old language
c The January 13 1987 negotiating session
On January 13, 1987, Hoyt and Bullen the parties'
principal negotiators, met for breakfast prior to the Janu
ary 13 negotiating session at Bullen s request, to discuss
the negotiations Bullen told Hoyt he had asked for the
breakfast meeting because there seemed to have been a
lot of hostility at the January 5 bargaining session and he
wanted to know why 42 Hoyt replied the main reason
for the hostility was that Union Attorney Rosenfeld had
taken a bargaining position that Hoyt felt had stymied
negotiations and she did not like to play games Also
Hoyt noted that the relationship between the parties had
not been that good recently because Respondent thought
Union President Salvaressa had been filing a lot of un
meritorious and stale grievances and after filing them did
not process them expeditiously and, as a result griev
ances were not being resolved for long periods of time
Bullen stated he realized there were problems with the
way in which the Union had been handling its affairs and
that the Union s officials were being given instructions
on how to process grievances more expeditiously
On the subject of the contract negotiations Bullen
stated that from the look of Respondents January 5 con
tract proposal it appeared as if Respondent was trying to
get rid of the Union Hoyt denied this and stated that if
Respondent s aim was to get rid of the Union it would
not have hired Hoyt to negotiate but would have hired
another law firm which she named and that the fact Re
spondent was not proposing to replace the health and
welfare program contained in the 1984-1986 agreement
with its own plan showed Respondent was not trying to
get rid of the Union Hoyt also explained her method of
negotiating a contract In this respect she told Bullen
don t expect a lot of play in there [referring to Re
spondent s bargaining proposals] because I don t like to
sit [at numerous negotiating sessions] I like to come
in and get things done and done now So if you see 25%
commission and you propose 45% don t expect to end
up at 30% or 35% Its not going to happen Bullen
asked what she was looking for in the contract Hoyt
replied that the main reason the existing agreement was
`killing Respondent was it prevented Respondent from
competing against its nonunion competition whom she
stated were paying lower commissions and were open all
hours of the day and without any restrictions on Sundays
and holidays Hoyt also explained that Respondent felt it
42 Bullen did not have first hand knowledge about the parties collec
tive bargaining relationship because he was employed not by the Union
but by the Union s International and had been called on by Union Presi
dent Salvaressa to conduct the Union s negotiations
449
was important that the salespersons commissions be tied
to productivity
During the January 13 bargaining session , the negotia
tors reviewed Respondents January 5 proposals It is un
disputed that even though the Union at the January 5
bargaining session expressed reservations about which
subjects were open for bargaining, that the parties in fact
at this meeting and at subsequent meetings acted as if ev
erything was open for negotiations It is undisputed that
during this meeting Respondent again raised the topic of
its poor financial condition Lane stated Respondent
would lose over $100,000 that month if business did not
improve and Hoyt stated Respondent could not afford to
agree to any economic increases in the existing agree
ment because Respondent was losing money The only
agreements reached at this meeting was an agreement to
reaffirm the parties prior agreement to delete the con
tractual provision concerning closers and that, as pro
posed by the Union in its December 23 contract propos
al, an agreement that a salesperson after making a sale
would be furnished with a voucher listing the customer s
name gross profit, commission earned and stock
number
The parties by the end of this meeting , reviewed ap
proximately 50 percent of the Respondents January 5
contract proposal The major areas of discussion are
briefly summarized below
On the subject of commissions, the Union, which had
proposed the 35 percent rate contained in the existing
agreement , now proposed a commission of 30 percent for
1 through 5 sales a month 35 percent for 5 through 10
sales 40 percent for 11 through 15 sales 45 percent for
16 through 20 sales, and, 50 percent for 21 or more sales
Hoyt rejected this proposal She stated that considering
the financial needs of Respondent, the Union s proposal
was totally unwarranted Bullen stated, This is a begin
ning Just look at the proposal and see what we've
done Hoyt replied that the Union had given salesper
sons who were poor producers a 30 percent commission
and the good producers a 50 percent commission and
that the Company could not afford to pay 50 percent
and pointed out that Respondent , under its proposal, had
raised the commission structure up to 35 percent, where
as it was currently only 30 percent 43
On the subject of Sunday and holiday work Hoyt
stated that to compete against its nonunion competitors
Respondent needed to be able to require its salespersons
to work Sundays and holidays The union negotiators in
dicated they objected to this and to Respondents further
proposal to delete the $75 bonus paid to employees for
holiday work under the existing agreement Bullen pro
posed Respondent pay its salespersons 45 percent com
mission for all cars sold on Sundays and holidays rather
than a bonus for working those days Hoyt stated this
would result in the Company not making any money on
the cars it sold Bullen stated the Union would agree to
making Sunday and holiday work mandatory for em
ployees if it was limited to 10 salespersons who would
43 As noted supra under the existing 1984-1986 agreement the com
mission rate was 35 percent for all cars sold of which the salespersons
received only 30 percent and the closer received 5 percent
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be selected for Sunday and holiday work by inverse se-
niority. Hoyt rejected this proposal, stating Respondent
needed the flexibility to employ more than 10 because
Sunday and holidays were big sale days and, with re-
spect to Bullen 's inverse seniority suggestion, stated it
would be too difficult to administer because salespersons
very frequently had intermittent employment with Re-
spondent, which made it difficult to determine their rela-
tive seniority dates. Bullen asked Hoyt to consider his
proposal and Hoyt stated she would consider it.
On the subject of the pack, Bullen stated Respondent's
proposed pack was too high. Hoyt replied that the pack,
which took into account the Respondent's expenses in
preparing the motor vehicle for sale, had been increased
in order to cover Respondent's increased cost in prepar-
ing a motor vehicle for sale. Bullen proposed a change in
the pack from the Union's December 23 proposal. The
record is not clear regarding the content of the propos-
al.44
On the subject of Respondent's right to discharge em-
ployees, Bullen proposed that the parties include a clause
in the agreement permitting Respondent to discharge em-
ployees for "just cause." Hoyt rejected this and stated
that Respondent's only concern was to be able to termi-
nate employees for lack of productivity and for other
conduct that was really outrageous such as theft or fight-
ing and that a "just cause" provision would pose prob-
lems.
During this meeting, Bullen proposed and Hoyt agreed
to extend the existing agreement on a day-by-day basis
with the understanding that the party who wished to ter-
minate the agreement would give 72 hours' notice to the
other party of its intent to terminate the agreement.45
The January 13 meeting ended with Bullen indicating
he was involved in several different negotiations and be-
cause of this might find it difficult to schedule further ne-
gotiations and asked if Hoyt could work around his
schedule. Hoyt stated she was flexible regarding when
and where to meet and stated she would even meet at
Bullen's office in Sacramento, California, if it was more
convenient for him. They agreed to resume negotiations
on January 21 and 22, 1987.
d. The January 21, 1987 negotiating session
The negotiators at the next negotiation session,. held on
January 21, 1987, continued their review of Respondent's
January 5 contract proposal, where they had left off at
the end of the January 13 bargaining session. Also Re-
spondent gave the Union another written proposal, this
one involving those portions of Respondent's January 5
contract proposal that had been reviewed at the January
44 In its December 23 proposal the Union proposed that the pack for
domestic motor vehicles be 1 percent and for imports 2 percent. Sal-
varessa testified that during the January 13 session the Union increased
these percentages by one-half percent, whereas Bullen testified the Union
increased its proposal on the domestic pack by three-fourths percent and
that its proposal for imports remained the same.
45 I recognize that Hoyt at one point during the hearing, while at
counsel table, stated she did not recall agreeing to give 72 hours' notifica-
tion of Respondent's intent to terminate the agreement. However, when
she testified under oath she did not refute Bullen's testimony that she in
effect agreed to give such notice. Bullen's testimony was corroborated in
significant respect by Salvaressa's.
13 bargaining session. It was either at this meeting or the
next one that Union Representative Kendricks furnished
Hoyt with the cost information about the current agree-
ment's health and welfare program. However, Kendricks
only provided cost information for 1 year and because
Respondent was proposing a 3-year contract, Hoyt asked
him to get cost information for the remaining 2 years.
Kendricks stated he would try to get this information,
'Also, during this meeting, Bullen for the first time indi-
cated that until the Union could determine whether, as
Respondent claimed, it was in financial difficulty, the
Union felt that discussion concerning economic items
should be placed on hold.
An examination of Respondent's written proposal
given to the Union's negotiators on January 21, a propos-
al involving those parts of its January 5 proposal, which
had been reviewed at the January 13 negotiating session,
reveals Respondent made significant changes in its Janu-
ary 5 proposal, only in these respects: (1) in its January 5
proposal Respondent proposed that employees' working
hours on Monday through Friday be 8:30 a.m. to 9. p.m.,
whereas its January 21 proposal changed the 8:30 a.m.
starting time to 9 a.m.; (2) the January 5 proposal pro-
vided that the employees' regular workweek was
Monday through Friday, Tuesday through Saturday, or
Wednesday through Sunday, whereas the January 21
proposal changed this to Monday through Sunday and
also added the proviso that each employee shall have 1
full day off each week; (3) the January 5 proposal on the
subject of commissions proposed a 25-percent commis-
sion for 1 through 10 monthly sales; 30 percent for 11
through 15, 35 percent for 16 or more monthly sales,
whereas in its January 21 proposal Respondent proposed
a 25-percent commission for a 1 through 9 monthly sales,
30 percent for 10 through 14 monthly sales, and 35 per-
cent for 15 or more monthly sales; (4) the January 5 pro-
posal provided for a 4-percent pack on all new motor ve-
hicles, domestic or foreign, whereas the January 21 pro-
posal provided for a 3.75-percent pack on the sale of do-
mestic vehicles; and (5) whereas the January 5 proposal
deleted the contract provision concerning the right of a
salesperson to shop a trade, the January 21 proposal pro-
vided that a salesperson had the right to shop a trade for
a 48-hour period after he or she closed the deal, with the
proviso that the salesperson must possess a specified
amount of liability insurance to cover his or her driving
of the vehicle while shopping the trade.
In reviewing the remainder of Respondent's January 5
and January 21 proposals, the parties' negotiators during
the January 21 negotiating session engaged in the follow-
ing discussions.
On the subject of Respondent's proposal to delete the
demonstrator provision in the existing agreement, Gener-
al Manager Lane informed Bullen that Respondent could
not afford to pay for the cost of the demonstrators be-
cause its insurance costs for the demonstrators had tri-
pled to approximately $10,000 a month and it was diffi-
cult to sell the demonstrators, which were in poor condi-
tion after being driven by salespersons. Lane also noted
that some of the salespersons did not have automobile in-
surance and the driver's licenses of others had been re-
HAYWARD DODGE
yoked Hoyt stated that when she reviewed the Union s
contracts with other employees she had noticed that
some of the contracts did not include a demonstrator
program for the employees and stated Respondent could
not afford such a program
On the subject of Respondents proposal to delete the
charity provision in the existing agreement , Hoyt asked
why this provision was in the agreement Kendricks ex
plained that employers would sometimes coerce employ
ees to contribute money to the employers favorite char
ities Hoyt suggested that the Union draft specific Ian
guage that dealt with this problem Such language was
proposed by the Union s negotiators and accepted by
Hoyt
Regarding vacations, Hoyt stated she had two prob
lems with the Union s vacation proposal First it in
creased the Respondents cost by adding an additional
week of vacation for the more senior employees and
second it calculated vacation pay on the basis of a per
centage of the employees yearly earnings, which was
not acceptable to Respondent because by using this
method of computation, it was impossible for Respond
ent to figure its vacation costs Also, Hoyt explained Re
spondent did not feel it was right for an employee who
was terminated prior to the end of the month to be given
vacation pay for the full month and Respondent was
proposing to just pay for the last full month in which the
employee worked
On the subject on Respondents proposal to delete the
provision that provided health and welfare benefits for
retired workers, Hoyt stated Respondents reason for de
leting it was that it was a cost item that was not included
in other Union contracts The Union s negotiators stated
this provision had to be in the contract
On the subject of the beginner salespersons classifica
tion, the Union s negotiators proposed that a beginner
salesperson be defined as any employee hired with less
than 6 months of industry experience or has more than 5
consecutive years of break in the automobile sales indus
try
On the subject of Respondents proposal to be allowed
to schedule 1 special event a month or 12 a year with
unlimited hours the Union countered with a proposal for
1 special event per quarter or 4 a year with Respondent
being allowed to remain open until 10 p in on the week
end of each special event
Regarding Respondents most favored nation clause
Bullen stated the Union was adamantly opposed to it and
would not under any circumstance agree to it Hoyt ex
plained Respondent needed the provision because if an
other dealership got a better deal from the Union than
Respondent Respondent wanted the same deal
On the subject of Respondents proposal making
Sunday work part of the employees regular workweek,
the Union took the position that Sunday would continue,
as under the existing agreement to be a voluntary work
day
e The January 22 1987 bargaining session
During the January 22 bargaining session Respondent
gave the Union a written proposal covering those parts
of Respondents January 5 proposal that had been re
451
viewed at the January 21 session An examination of this
proposal reveals Respondent changed its January 5 pro
posal , only in these respects its January 5 proposal de
fined a beginner salesperson as an employee not em
ployed by Respondent for 6 months continuously within
the past 3 years of date of hire, whereas the January 22
proposal changed this to within the past 2 years of date
of hire and, its January 5 proposal defined fleet buyer
as a customer who was issued a bona fide fleet number
by a manufacturer, whereas in its January 22 proposal, in
response to the Union's concern that its January 5 pro
posal could encompass individual buyers, Respondent re
defined fleet buyer as being a business whether a sole
proprietorship firm partnership or corporation, with a
bona fide fleet number issued by a manufacturer
Also, at the January 22 bargaining session, the Union
submitted a written proposal dealing with seniority ter
mination , grievance arbitration , sales meetings held
during employees days off and Sunday and holiday
work The terms of this proposal and what was said
about them follow
The parties current agreement did not include any
kind of a seniority provision The Union s January 22 se
niority proposal defined how seniority was to be com
puted and provided in substance that employees laid off
for lack of work would be laid off and recalled by se
niority Hoyt stated this provision, which was apparently
taken from a union contract in another industry, would
not work in the automobile sales industry
In its January 22 proposal involving employees termi
nation , the Union proposed in substance to limit termina
tions for just cause' to establish a system of progres
sive discipline before an employee could be discharged
for absenteeism or for unsatisfactory work performance
and obligated Respondent on request, to furnish the ter
mmated employee with a written reason for his or her
termination limited when during the workweek Re
spondent could layoff or terminate an employee for in
competence required Respondent to notify the Union in
writing when it terminated an employee required that a
discharged employee file a grievance with the Union
within 7 days from the date of discharge and gave the
Union 14 days in which to file a grievance protesting the
discharge This proposal also required employees who
quit to give 2 weeks notice of their intention to quit and
that employees who quit or were terminated were to be
paid all the moneys Respondent owed to them
The negotiators reviewed the Union s above described
termination proposal and Hoyt pointed out there was no
just cause provision for terminations in the parties ex
isting agreement nor in any contract that the Union had
with an employer in the automobile industry and stated
Respondent did not intend to have it in its agreement
Also at this point there was discussion concerning Re
spondent s proposal to terminate salespersons who sold
no more than 10 motor vehicles a month In this regard
Hoyt stated if there was going to be a contract provision
dealing with discharging employees for incompetency
that Respondent wanted it to be worded in terms of em
ployee productivity because that was Respondents main
concern Regarding the requirement that employees give
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice before quitting Hoyt stated it was a fine proposal
but she did not think it would work in the automobile
sales industry and regarding the proposal that Respond
ent pay the moneys it owed to terminated employees,
Hoyt stated this was what Respondent was required to
do by law and she had no problem with such a provi
sion Hoyt also stated she would consider the other parts
of the Union s January 22 termination proposal
The negotiators discussed the Union s proposed
grievance/arbitration provision at length, and eventually
agreed that Hoyt would take the Respondents and the
Union s proposals on the subject and try to combine
them into a proposal acceptable to everyone
The Union s January 22 proposal concerning salesper
sons coming to sales meeting on their days off provided
in substance that employees required to attend any meet
ings on his or her day off would be compensated $25 if
they lived between 0-15 miles from the dealership and as
much as $50 if they lived 50 miles or more from the
dealership, and paid various other amounts between $25
and $50 if they lived between 15 and 50 miles away 46
There is no evidence that the parties discussed this pro
posal
The Union s January 22 proposal concerning Sunday
and holiday work permitted Respondent to schedule a
minimum of 10 salespersons on Sundays, as opposed to 8
under the existing agreement, and permitted the schedul
ing of a minimum 10 salespersons on Memorial Day, In
dependence Day, and Labor Day as opposed to 8 under
the existing agreement, and further provided that if an
insufficient number of salespersons volunteered for
Sunday or holiday work that Respondent would sched
ule the necessary number of employees for Sundays and
holidays by inverse seniority-the least senior to be
scheduled first-and also provided that volunteers would
be able to request specific shifts by seniority for Sunday
and holiday work There is no evidence that the parties
discussed this proposal I note that under the existing
agreement Sunday work was optional for employees as
was work on those three holidays that under the agree
ment Respondent was permitted to operate As de
scribed supra Respondent in its January 5 proposal had
proposed that Sundays and all holidays be part of the
employees regular work schedule and that Respondent
be allowed to remain open on virtually every holiday
During this meeting Bullen requested that all monetary
or economic items be placed on hold until the Union was
furnished with information about the state of Respond
ent s financial condition, and asked if Respondent would
open its books for the Union to look at Hoyt agreed to
do this but stated she wanted someone who was quali
fled to analyze the financial statements of an automobile
dealership Bullen stated the Union would attempt to
employ Harry Polland to examine Respondents books
Hoyt stated that Polland would be acceptable
The parties agreed to resume negotiations on January
27 and 28 and agreed to a series of four more negotiation
meetings to be held in February 1987 Also toward the
end of the meeting Hoyt asked Bullen to supply her
46 Respondents January 5 proposal required off duty salespersons to
attend meetings on their days off without compensation
with a complete union counterproposal in writing and do
this prior to the scheduled January 27 meeting Bullen
agreed to draft such a proposal and suggested that Hoyt
come to his office in the Sacramento area on January 26
to pick up the proposal and at that time they could
review it together and he would answer her questions
Hoyt agreed
f The January 28 1987 negotiating session
On January 26 Hoyt drove the approximately 90 miles
to Bullen s office and was given the union proposal that
Bullen had drafted but was informed by his secretary
that he was at a meeting and would not be able to meet
with her that evening to discuss the proposal Also at
that time Hoyt was notified that Bullen would be unable
to meet the next day so the meeting scheduled for Janu
ary 27 was canceled and the next bargaining session took
place on January 28, as previously scheduled by the par
ties
The Union s January 26 written proposal was not in
fact a proposal It was a recapitulation of what the
Union believed was the state of the negotiations items
the parties had agreed on, disagreed on, those on hold
and those withdrawn
The January 28 bargaining session was an all day ses
lion Respondent submitted its written response to the
proposals that had been made by the Union during the
January 22 bargaining session and modified its January
22 proposal in certain respects
Hoyt told the union negotiators that to meet the
Unions concern about Respondents proposal concerning
increased employee working hours Respondent was pro
posing the following If a salesperson asked for permis
sion to leave prior to his or her work shift and if business
was slow Respondent would not be unreasonable in de
ciding whether to permit the salesperson to leave early
if requests for additional days off were submitted at least
10 days prior to the dates requested Respondent would
consider such requests and not act unreasonably in deny
ing them and Respondent would post employees work
schedules no later than Friday of the preceding work
week 47 Hoyt also told the union negotiators Respondent
would agree to the union proposal that Respondent
shall adjust floor time including Friday weekend and
holiday work if it was qualified by a proviso reading
so that all employees shall have equal opportunity,
rather than equal advantage, as proposed by the
Union Bullen stated he thought this would be accepta
ble but wanted to check with Union President Sal
varessa Eventually the parties reached agreement on
that proposal
Regarding Respondents written response to the
Union s January 22 proposals Respondent rejected the
Union s seniority proposal proposed that Respondent be
permitted to terminate employees for cause rather than
just cause as proposed by the Union rejected the pro
posals concerning the progressive system of disciplinary
warnings and the proposal that employees be furnished
47 This latter proposal was a part of the existing agreement but had
been deleted by Respondent in its January 5 proposal
HAYWARD DODGE
the reason in writing for their terminations rejected the
proposal that laid off employees or those discharged for
lack of competency be terminated only at the end of the
workweek rejected the proposal that within 7 days of
terminating an employee Respondent was obliged to fur
nish the Union notice of said termination accepted the
proposal that employees who quit or were terminated be
promptly paid all moneys owed by Respondent accepted
the proposal concerning the 7 and 14 day time limita
tions on the filing of discharge grievances, and accepted
the proposal that employees who intended to quit give 2
weeks notice to Respondent, but proposed that Re
spondent be allowed to accept such notice immediately
Regarding the Union s January 22 grievance arbitra
tion proposal Respondent rejected certain provisions, ac
cepted others, and proposed that the liquidated damages
and claims limitations provisions in the 1984-1986 agree
ment be made an integral part of the grievance arbitra
tion procedure, and proposed that the arbitrators author
ity to award backpay be limited to no more than 60
days In its January 5 proposal Respondent had proposed
a 30 day backpay limitation
On the subject of Sunday and holiday work, Hoyt told
the union negotiators Respondent rejected the union pro
posal, which would have permitted Respondent to
schedule a minimum of 10 salesperson on Sunday and
holidays and to use inverse seniority to schedule sales
persons on those days if there were insufficient volun
teers In its January 5 proposal Respondent had proposed
that Sundays and holidays be made a part of the employ
ees regular workweek
On the subject of employees attendance at meetings
called by Respondent during their days off Respondent
which had previously proposed that off duty employees
be required to attend such meetings without compensa
tion now proposed they be compensated $20 The Union
countered with a proposal that Respondent pay them $30
if they were required to come to the dealership for such
a meeting more than once in a 4 week period 48 Hoyt
stated Respondent would consider this proposal
Regarding health welfare and pension benefits and
the cost of such benefits to Respondent, the existing
agreement provided for parity with the health welfare
and pension provisions contained in Respondents con
tract with the Machinists Union the union that repre
sented Respondents shop employees Hoyt had previous
ly asked the Union to furnish her with information about
the costs of the health and welfare benefits provided for
under the Machinists Union contract and during the Jan
uary 22 negotiating session was furnished this informa
tion for the next 1 1/2 years Based on this information
and the fact Respondent knew its cost for pension bene
fits under the Machinists Union contract was $165 a
month per employee Respondent in its January 28 pro
posal made the following health welfare, and pension
proposals Employer Proposal on Health & Welfare
Cost of Kaiser Health Plan SS-Pension Maintain Cur
46 As noted supra the Union previously proposed that if off duty em
ployees were required to come to the dealership for meetings on their
days off they be compensated anywhere from $25 to $50 depending on
the distance of their residences from the dealership
453
rent Contribution Rate There is no evidence that this
proposal was discussed during this meeting However
Hoyt testified in effect that Respondents January 28
health and welfare proposal provided for substantially
less benefits for the employees than were being received
under the 1984-1986 agreement
g The February 9 1987 inspection of Respondents
books and records
As noted supra during the January 22 bargaining ses
sion Hoyt agreed to open Respondents books and
records for the Union s inspection so that the Union
could determine whether, as Respondent claimed it was
losing money The parties also agreed to delay any fur
ther negotiation on economic items until after the Union
inspected Respondents books and records Hoyt was ad
vised by Union Representative Kendricks that the Union
had employed Harry Polland to review Respondent s
books and records and gave Hoyt his telephone number
Subsequently Hoyt tried unsuccessfully to contact Pol
land by telephone in an effort to arrange for him to visit
Respondent s premises to conduct his inspection During
the January 28 negotiating session , Hoyt told Kendricks
about her lack of success in having Polland return her
telephone calls Kendricks contacted Polland and told
Hoyt that Polland said he was too busy to review Re
spondent s books and suggested to Kendricks that Debra
McEwan, a certified public accountant, do the review
Kendricks gave Hoyt McEwan s telephone number One
or two days later Hoyt telephoned McEwan and they
agreed that McEwan would visit Respondents premises
on February 9, 1987, at 10 am to review Respondent s
books and records and that prior to that date McEwan
would write Hoyt describing what books and records
she needed to conduct her review On February 2, 1987,
McEwan wrote Hoyt and described the books and
records she needed Hoyt gave the letter to Respondent s
business manager , Janice Peterson, with instructions to
make the records available
On February 9, McEwan with an associate visited Re
spondent s facility and reviewed the books and records
provided by Respondent All the books and records re
quested by McEwan which existed, were furnished
except for some of Respondents Department of Motor
Vehicle sales records, which were not available at the
time and Respondents payroll tax and income tax re
ports which were at the facility of Respondent s parent
company, the Tasha Corporation When advised of the
missing materials McEwan stated she would do the best
she could with the information available but indicated
she would not be able to do as thorough an analysis of
Respondents financial situation as would have been the
case if the missing records were available Neither at the
time nor at any other time did McEwan or any repre
sentative of the Union ask that arrangements be made for
McEwan to review the missing documents McEwan and
her associates spent approximately 4 1/2 hours at Re
spondent s facility on February 5 reviewing Respond
ent s books and records
Based on her February 9 inspection of Respondent s
books and records McEwan advised Union Business
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Representative Kendricks as follows Respondents fi
nancial statement for the calendar year 1986 showed a
profit of $116 054, certain items listed as expenses in Re
spondent s books of account were not justified certain
other items listed as expenses in Respondents books of
account were not really expenses, certain sums of money
mentioned in Respondents books of account should have
been treated as income but were not, and that during
1986 Respondent lost $250 000 of sales during the period
it was in the process of moving its facility, which would
not occur in 1987 In view of the aforesaid circum
stances, McEwan told Kendricks that realistically it
could be said Respondent had made a profit of $697 432
in 1986 and that in her opinion Respondent was not in
any financial difficulty
h Respondents financial situation
In 1985 Respondent had a before tax profit of
$327 127 In 1986 Respondent had a before tax loss of
$462 194 In 1987 Respondent had a before tax loss of ap
proximately $757 688 Respondent in fact lost substantial
ly more than this in 1987 because, apparently due to Re
spondent s poor financial condition Respondent s parent
company, the Tasha Corporation excused Respondent s
debts for rent, management fees, legal fees and property
taxes totally almost $500,000 which had been paid in
1987 by Tasha on behalf of Respondent
The above described profit and loss figures are based
on the testimony of Steven Bonovich a certified public
accountant, who has regularly audited Respondent s
books of account for the past several years His testimo
ny was based on Respondents books of account and fi
nancial statements which, when he testified were present
in the hearing room in the possession of the General
Counsel and the Charging Party His testimony was not
challenged Under the circumstances I infer that the
records would have supported his testimony There is no
evidence to support McEwan s testimony that Respond
ent s financial statement for the calendar year 1986
showed that it made a profit of $116 054 McEwan was
not asked to explain the basis for this testimony and no
financial statement was produced to support her testimo
ny Quite the opposite Respondents financial statements
for 1986 as Bonovich testified reveal that it suffered a
before tax loss of $462 194
McEwan s testimony that certain expense items in Re
spondent s books of account were not really expenses or
were not justified and her testimony that certain sums of
money should have been treated in Respondents books
of account as income was refuted by the credible testi
mony of Bonovich who convincingly demonstrated that
each of the items referred to by McEwan had been prop
erly and justifiably treated as an expense in Respondent s
books of account and that the moneys referred to by
McEwan had been properly not treated as income
Regarding McEwan s assertion that Respondent lost
$250,000 in sales during the move of its facility in 1986,
Bonovich testified there was nothing in Respondent s
books and records or the circumstances of the move that
supported such an assertion McEwan testified that her
conclusion Respondent lost $250 000 in sales during its
move was not based on Respondents books and records
but that during her February 9 visit to the dealership an
unidentified man whom she testified was with manage
ment of some form, told her that they lost $250 000
during this year because of the move
Respondents books of account show that its sales in
1986 totaled approximately $1 5 million less than in 1985
The record does not contain dollar sales figures for 1987,
however, it is apparent from the number of cars sold by
Respondent in 1987 as compared to 1985 and 1986 that
this downward trend in sales income continued in 1987
Thus in 1985 Respondent sold 2686 motor vehicles, in
1986 it sold 2383 motor vehicles and in 1987 it sold 1966
motor vehicles
The record reveals that throughout the year on both a
daily and monthly basis Respondent is aware of the fi
nancial state of its business It receives daily reports,
which show its sales, gross profits on sales and the
number of cars sold and receives a monthly financial
statement that indicates whether it has been operating at
a profit or a loss
i The February 10 1987 negotiating session
Hoyt at the end of the last negotiating session held
January 28, asked Bullen to draft a written contract pro
posal to present at the next session scheduled for Febru
ary 10 and Bullen replied, 111 see what I can do No
such written proposal was presented by Bullen at this
meeting
The parties at the February 10 negotiating session con
tinued to discuss the noneconomic items in dispute By
the end of this meeting they had reached substantial
agreement on major portions of the grievance arbitration
provision except for the time limits for initial filing of
grievances and the extent of the arbitrators authority
Bullen stated the Union felt the time limits being pro
posed by Respondent were too restrictive whereas Hoyt
took the position that the lack of time limits in the cur
rent agreement has resulted in numerous stale greivances
On the subject of the arbitrators authority Hoyt pro
posed that all matters be arbitrable whereas Bullen
stated the Union wanted certain matters excluded from
arbitration Bullen also stated that the Union could not
accept Respondents proposed zipper management rights
clause and rejected Respondents term of agreement pro
posal which in substance provided for a 60-90 day re
opening notice and deleted the provision in the exisiting
agreement which required that the parties list the par
ticular sections of the agreement that they desired to
change, when they transmitted their reopening notices
Toward the end of this meeting Union Representative
Kendricks informed Hoyt of the results of McEwan s
February 9 review of Respondents financial records as
well as the results of Kendrick s survey concerning the
hours of operation of other dealerships doing business in
the immediate vicinity of Respondent
Kendncks stated he had conducted a survey of the
hours of operation of the dealerships doing business in
Respondents immediate vicinity He gave Hoyt a copy
of the survey, which listed 50 dealerships all of whom
were open for business during the same or similar hours
as Respondent except for approximately eight, who
HAYWARD DODGE
were open longer hours The majority of the eight ex
ceptions were owned by Respondents parent company
Hoyt after reviewing the survey , told Kendricks she
was not impressed by it because it did not include all the
dealerships in the geographical area from which Re
spondent drew its customers but was limited to the area
immediately adjacent to Respondents business, thus it
did not include all of Respondent 's competitors Hoyt
also stated that even if only one of Respondents com
petitors was open for extended hours, it adversely affect
ed Respondents ability to compete
On the subject of McEwan s February 9 review of Re
spondent s books and records, Kendricks stated that Re
spondent s contention that it had been losing money was
not true and advised Hoyt of McEwan s above described
conclusion that Respondents financial statement for the
year 1986 showed it had made a profit and of her further
conclusion that a review of Respondent 's books and
records had revealed that the amount of this profit ap
peared to have been substantially understated Kendricks
stated that McEwan s overall assessment was that Re
spondent felt it was not making as much money as it
would like to be making Hoyt questioned McEwan s
competence , disputed her conclusions , insisted Respond
ent was losing money despite what McEwan had con
eluded , and stated Respondent could not afford to con
tinue to lose money and in order to survive it needed the
cutbacks in the existing agreement that had been pro
posed
j The February 11 1987 negotiating session
The February I1 negotiating session began with Hoyt
presenting a complete written contract proposal that set
forth the items on which tentative agreement had been
reached as well as Respondents position on all the unre
solved items Bullen later during the meeting verbally
modified the Union s position on several disputed items
Also, after having considered the Union s new proposals
concerning employee compensation Hoyt informed
Bullen she felt the Union had not moved sufficiently in
that area and as a result negotiations were at dead
center and asked the Union to submit another proposal
concerning employees compensation Bullen replied he
would submit such a proposal at the next negotiating ses
Sion
Respondent s February 11 proposal modified its prior
proposal as follows ( 1) Respondent withdrew its propos
al modifying the union security language in the 1984-
1986 agreement (2) Respondent qualified its definition of
a beginner salesperson-someone employed less than 6
months by Respondent-with the proviso that Respond
ent at is discretion could advance a beginner salesperson
to regular salesperson at any time during the 6 month
period , (3) Respondents initial proposal deleted the pro
vision in the 1984- 1986 agreement that prohibited it from
requiring employees to work on the 8 contract holidays
and prohibited employees from working on any of those
holidays and also deleted the provision in the 1984-1986
agreement that limited the number of employees Re
spondent could employ on the day after Thanksgiving,
and the days before Christmas and New Years Day
whereas Respondent's February 11 proposal reinstated
455
the above described language except for the part that
forbade employees from working on any of the contract
holidays, and the contract holidays were reduced from 8
to 5 (4) Respondent which previously proposed em
ployees be paid $20 for being required to attend sales
meetings on their days off, agreed with the Union s pro
posal that such employees be paid $30 once every 4
weeks for being required to attend such meetings (5) Re
spondent , which previously proposed that all salesper
sons receive a 25 percent commission for up to 9 sales a
month 30 percent for 10 to 14 monthly sales 35 percent
for 15 or more monthly sales, now proposed that the top
commission for its regular salespersons be 30 percent for
the monthly sale of 10 or more motor vehicles and that
beginner salespersons receive a 25 percent commission
on all sales, (6) Respondent which previously proposed
a 4 percent pack on imported motor vehicles and 3 75
percent on domestic motor vehicles , now proposed to
reduce the pack on the sale of domestic motor vehicles
to 3 5 percent, (7) the existing agreement contained a
scheduled of incentive bonuses for the sale of motor ve
hicles that Respondent had proposed to delete in its en
tirety, whereas its February 11 proposal contained a $500
incentive bonus for the monthly sale of 15 or more
motor vehicles, (8) Respondents proposal that it be per
matted to discharge for lack of performance any employ
ee who failed to sell 10 motor vehicles a month was
changed from 10 to 9 motor vehicles, (9) on the subject
of health , welfare, and pension benefits, Respondent s
February 11 health and welfare proposal provided for
current plans for employees only with co payments on
prescription drugs, dental and vision [and ] no life insur
ance increase and with respect to pension benefits
provided for Respondent to contribute $ 100 per
month It is plain that Respondents new pension pro
posal was a substantial reduction from its prior proposal
of a monthly contribution of $165 and while its new
health and welfare benefit proposal was better in some
respects than its last proposal it was worse for the em
ployees insofar as it expressly stated it did not cover
their dependents whereas its prior proposal was ambigu
ous in this respect There is no evidence that the parties
discussed the subjects of health, welfare or pension ben
efits either at this negotiating session or at any of the
subsequent negotiating sessions
The Union at this negotiating session modified its prior
contract proposals , as follows ( 1) In response to Re
spondent s proposals that it be allowed 12 special sales
events per year the Union initially countered with 4 and
now proposed 5 a year (2) the Union which previously
proposed a 30 percent commission for the sale of 1 to 5
motor vehicles a month , 35 percent for 5 through 10
sales, 40 percent for 11 through 15 sales 45 percent for
16 through 20 sales, and 50 percent for 21 or more
monthly sales, now proposed a 30 percent commission
for 1 through 8 monthly sales 35 percent for 9 through
10 sales and 40 percent for 11 or more monthly sales, (3)
the Union which previously proposed a minimum com
mission of $200 for each sale, now reduced this to $175,
(4) the Union , which previously proposed a 1 percent
pack for domestic motor vehicles and a 3 percent pack
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for the sale of imported vehicles, now proposed a 1 75
percent pack for domestic sales and a 2 percent pack for
imported car sales, (5) the Union which had previously
proposed 1 week paid vacation after 1 year of employ
ment computed at 1/52 of the employees prior year
earnings, 2 weeks after 2 years computed at 2/52 3
weeks after 3 years computed at 3/52 4 weeks after 5
years at 4/52 and 5 weeks after 7 years at 5/52 now
proposed I week of paid vacation after 1 year computed
at 1/52 of the employees prior year earnings , 2 weeks
after 2 years at 2/52 3 weeks after 5 years at 3/52 4
weeks after 10 years at 4/52, and 5 weeks after 15 years
at 5/52 (6) the Union, which previously proposed that
journeymen (regular) salespersons received a monthly
draw of $2000 and beginners $1500 now proposed $1750
for journeymen and $1250 for beginners, (7) in response
to Respondents proposal to delete the provision in the
1984-1986 agreement that required Respondent to fur
nish each salesperson with a demonstrator vehicle for
$175 a month the Union proposed that in lieu of a dem
onstrator vehicle salespersons would receive car ex
penses, which would be tied to their productivity,
namely if a salesperson sold between I and 8 motor ve
hides a month he or she would be paid $175 for car ex
penses, $225 for the monthly sale of between 9 and 12
motor vehicles and $275 for the monthly sale of be
tween 13 or more motor vehicles (8) in response to Re
spondent s proposal that employees receive a $500 incen
tive bonus for the monthly sale of 15 or more motor ve
hides, the Union proposed they be paid $650 for the sale
of 10 or more motor vehicles a month
Also during this bargaining session , Hoyt stated Re
spondent would agree to a 6 month limitations period for
backpay claims-the amount of Respondents backpay
obligation under the contractual grievance procedure-
rather than the 2 month period it had been proposing
provided that the Union agree to delete the liquidated
damages provision from the existing agreement Bullen
rejected this proposal and stated the Union would be
willing to discuss those matters if Respondent agreed to
withdraw its proposed most favored nation clause
k The February 12 1987 negotiating session
Present for Respondent at the next negotiating session
held February 12 as its principal negotiator was Hoyt s
associate Attorney David Miller who had been present
during the February 11 meeting at which time Hoyt ex
plained to the union negotiators that he would be Re
spondent s negotiator at the February 12 meeting be
cause Hoyt due to an emergency would have to be
absent
The February 12 bargaining session was a continuation
of the parties discussion of those portions of the Re
spondent s and Union s proposals that had been discussed
during the February 11 session No new proposals were
submitted by either party Miller stated he would inform
Hoyt about what had occurred at the meeting Bullen
asked Miller to inform Hoyt that the Union felt there
was no justification for the takeways," which Respond
ent was proposing because the Union had concluded that
Respondent was not losing money as it claimed and that
under the circumstances the Union felt the Union s most
recent proposals were reasonable and that Hoyt should
seriously consider them
1 The February 13 1987 negotiating session
The next negotiating session , held February 13, began
with Hoyt presenting to Bullen a written contract pro
posal entitled Hayward Dodge Bottom Line Proposal
which in its preamble stated it represented Respondent s
bottom line offer and also stated that Respondent un
derstood that at the next negotiation meeting scheduled
for February 17 that the Union would present its bottom
line proposal and that Respondent would review the
Union s proposal in good faith in an effort to reach an
agreement The only difference between Respondent s
February 13 and February 11 contract proposals was
that the February 11 proposal provided for 12 specific
sales events a year whereas the February 13 bottom
line offer provided for 10 such events
Hoyt during this meeting advised Bullen she was un
happy about Bullen s failure to submit a new contract
proposal at this meeting and advised him that since the
Union had given her nothing to work with that the Re
spondent s February 13 bottom line offer is the best
we came up with and stated she expected a counterpro
posal from Bullen at the next negotiating session
The sole agreements reached by the parties during this
meeting involved two proposals made by the Union, one
dealing with no strike and no lockout and the other with
that section of the agreement dealing with the term of
the agreement and the manner in which the agreement
could be reopened for negotiations
in The February 17 negotiating session
Due to Marcia Hoyt s sudden illness the Respondent s
principal negotiator for the greater part of the next nego
tiating session held on February 17 was Attorney Ralph
Hoyt Hoyt s associate with Hoyt attending part of the
meeting The meeting began with the parties resuming
their discussion of Respondents February 13 offer
where they had left off at their last meeting They had a
lengthy discussion about the contractual grievance arbi
tration procedure, in particular about Respondent s
desire to speed up the grievance arbitration process and
its desire to place a limit on its backpay liability under
the contract The parties also reviewed Respondent s
February 13 proposals in their entirety and during this
review the Union indicated that its position on Respond
ent s most favored nation clause proposal was a flat ass
no and with respect to its proposal dealing with the
amount of the employees sales commissions Respondent
indicated for the first time that the proposal was meant
to encompass both new and used car sales
The only changes made by either party in their prior
bargaining positions was the Union modified its bargain
ing position in two respects It changed its vacation pro
posal by dropping the fifth week of vacation it had pro
posed for those employees employed 15 or more years
and regarding employees' sales commissions proposed
that those who sold between 1 and 8 vehicles a month be
paid a 30 percent commission, those who sold between 9
and 13 be paid a 35 percent commission and those who
HAYWARD DODGE
sold 13 or more be paid a 40 percent commission, where
as it previously had proposed to pay 35 percent commis
sion to those who sold between 9 and 10 vehicles and
40 percent commission for 11 or more vehicles
The meeting ended without another meeting being
scheduled Rather it ended with Respondents representa
tive stating Respondent would draft a final contract pro
posal that it would transmit to the Union for submission
to the Union s membership to vote on Bullen stated that
if the Respondents final contract proposal included the
most favored nation proprosal that he would not guaran
tee that it would be submitted to the membership for a
vote
n Respondents February 19 1987 last and final
offer'
By letter dated February 19, 1987 , Hoyt transmitted to
Bullen Respondents final offer This document entitled
Last and Final Offer of Hayward Dodge stated it was
the last final and best offer of the [Respondent] and
asked that it be submitted to the bargaining unit employ
ees for them to vote on and advised the Union that
should this proposal be rejected or otherwise not rati
feed , it shall nonetheless be implemented effective March
1, 1987 '
The Respondents February 19 last and final offer was
substantially identical to its February 13 proposals in all
respects except for the following ( 1) Respondent previ
ously had defined beginner salespersons as those not em
ployed by Respondent for a period of 6 months of con
tinuous employment within the past 2 years of the date
of hire or rehire whereas now Respondent proposed that
this be changed to 4 months of continuous employment
within the past 18 months of the date of hire or rehire
(2) Respondent had previously proposed that it be al
lowed to schedule 10 special sales events per year with
unrestricted hours, whereas it now proposed it be al
lowed to schedule 8 special sales events per year with
sales hours from 8 a in to 12 p in , (3 ) Respondent previ
ously had proposed to delete the section of the 1984-
1986 agreement that provided that no employees shall be
required or permitted to spend more than 8 hours at
work on any weekday and not more than 9 hours on Sat
urday whereas it now proposed that except as otherwise
allowed no employee shall be required to spend more
than 8 hours at work on Monday through Thursday and
Sunday or more than 9 hours on Fridays Saturdays or
holidays (4) Respondent previously had proposed that
anyone failing to sell 9 or more units per month was sub
ject to termination for lack of performance whereas it
now proposed to change this to 8 units
o Bullen and Hoyt discuss Respondents last and final
contract offer
It is undisputed that soon after he received the Union s
February 19 last and final offer contract offer that Bullen
contacted Hoyt and at Bullen s request she agreed not to
implement the offer and agreed to a March 16 negotiat
mg session
Hoyt s testimony concerning her conversations with
Bullen which resulted in the March 16 negotiation meet
457
ing, follow Hoyt testified that on February 23 Bullen
telephoned her at home during the evening and asked
how he could persuade her not to implement Respond
ent s last and final contract proposal Hoyt responded by
stating that the Union would have to place some propos
als on the bargaining table that would enable Respondent
to negotiate, that thus far the Union had given Respond
ent nothing Hoyt cautioned Bullen not to except much
movement from Respondent, explaining that if there
was to be any movement it would merely be to rear
range the dollars or percentages in the final offer and
stated Respondent was the bottom line Hoyt further
testified that later the same evening Bullen telephoned
again and stated he had spoken to Union President Sal
varessa who was off soul searching on the nuts and
bolts of the contract, the really hard issues, which
Bullen referred to as the Union s sacred cows Hoyt
informed Bullen that if the Union gave Respondent
something to negotiate on she would consider his request
that Respondent not implement the terms of the Febru
ary 19 last and final contract offer but otherwise Re
spondent intended to implement the terms of that offer
The next day according to Hoyt, Bullen informed her
he believed there was a possibility for movement in the
Union s bargaining position Hoyt replied that under the
circumstances she would agree to hold off implementing
the Respondents last and final contract offer and agreed
to meet for negotiations on March 16 in the presence of
a Federal mediator but advised Bullen she expected him
to furnish Respondent with a complete written proposal
Bullen testified he telephoned Hoyt on February 24 at
which time he told her that he did not feel the parties
were at an impasse in their negotiations that he felt there
was room for further negotiations and that it would be a
shame if Respondent went ahead and implemented its
last and final contract offer on March 1 because it
would throw everything into litigation and ruin the bar
gaining atmosphere Bullen further testified he also ad
vised Hoyt that Salvaressa was examining the disputed
items and was soul searching where he was relative to
the scared cows referring to the provisions in the 1984-
1986 agreement that the Union felt were very scared and
that Respondent wanted to modify or delete Hoyt,
Bullen testified, responded by agreeing not to implement
the Respondents last and final contract offer and by
agreeing to meet for negotiations on March 16 in the
presence of a Federal mediator 49
On February 24 Bullen wrote Hoyt confirming their
March 16 negotiation meeting and confirming that Re
spondent s February 19 last and final contract offer
would not be implemented He ended his letter by stat
ing it is our hope that the March 16th neogtiation ses
lion will be fruitful and it is our intent to make addi
tional movement at that meeting '
On February 26 Hoyt wrote Bullen as follows
49 To the extent Bulllen s testimony can be interpreted as constituting a
denial that Hoyt asked him to submit a complete written contract propos
al and a denial that Sullen agreed to submit such a proposal I reject Bul
len s testimony and credit Hoyt s
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am writing you so there is no misunderstanding
regarding our delaying implementation of our last
and final offer We believe an impasse does exist,
and please understand that our last offer is just that
While there always may be room for slight adjust
ment, as I indicated to you by phone, if there is to
be any movement, it would merely be to rearrange
the dollars or percentages in the final offer Hay
ward Dodge is at the bottom line
We have had over a dozen negotiating sessions,
yet it was not until I advised you that Hayward
Dodge would implement its final offer that you
stated to me you had Rich really soul searching'
on the Union s positions I can only state that I wish
this could have occurred earlier on in negotiations
In conclusion, I reiterate that for all intents and
purposes our last and final offer is on the table, and
we are at impasse I agreed to meet with you on
March 16 1987 and delay implementing until that
time, hoping that the Union can find an agreement
can be reached To do so will take significant revi
sion to or deletion of those Union sacred cows as
you call them Hayward Dodge must be competi
tive-both union and non union-and cannot do so
with restrictive and non sensical work provisions
which the Union has clung to throughout negotia
tions I am hoping that this two week hiatus will
serve a useful purpose for realistic reflection on
your part as to what is needed by Hayward Dodge
to remain competitive in this business
p The March 16 1987 negotiating session
On March 16 the parties negotiators met at Hoyt s
office under the supervision of Clarence Washington the
Federal mediator The negotiators did not speak directly
with one another Rather they met with Washington in
different rooms and Washington acted as a conduit The
meeting ended with Hoyt and Bullen in Washington s
presence, talking briefly
Washington initially met with Hoyt and Hoyt ex
plained to him Respondent's bargaining position and in
the process told him that Respondents bargaining pose
tion was firm with respect to its proposals dealing with
compensation productivity Sunday and holiday open
mg hours of operation grievance/arbitration, the time
limits for filing an initial grievance retirees health and
welfare, and demonstrators
Washington then met with the Union Negotiators
Bullen Salvaressa and Kedricks and advised them of
Respondents above described position During Washing
ton s meeting with the union negotiators, Bullen verbally
transmitted proposals to Washington to give to Hoyt
Bullen was unable to remember what he said to the me
diator in this respect He was only able to remember that
the proposals that he gave to Washington covered
maybe four or five items Salvaressa s testimony con
cerning the proposals that Bullen told Washington to
give to Hoyt can only be characterized as vague and
evasive and he admitted he had no independent recall of
any of the proposals that Bullen transmitted to Washing
ton He testified he merely had an idea of some of the
issues invovled He then testified that the Union made
counterproposals dealing with commissions, monthly
draw, and hours of work More specifically he testified
that the proposals that Bullen gave to Washington in
cluded a two step commission structure of 30 and 35 per
cent 5 0 a minimim commission rate of $125 per sale 51 a
monthly draw identical to the amounts set forth in the
1984-1986 agreement, S2 and an additional hour of work
for Saturday and Sunday in comparison to what was
contained in the 1984-1986 agreement But, later in his
testimony when asked to state the proposals that Bullen
gave to Wahhington to transmit to the Union concerning
commissions or hours of work or the draw Salvaressa
testified he was not able to remember
Considering Salvaressa s admittedly poor memory of
what Bullen stated to Washington about the Union's
March 16 proposals, considering Salvaressa s vague and
evasive testimony on that subject, considering Salvares
sa s inability to remember what Bullen said to Washing
ton about commissions or the draw, and considering Bill
len s inability to corroborate Salvaressa s testimony on
the subject of what Bullen stated to Washington con
cerning the Union s March 16 proposals, to be unreliable
and for this reason I reject his above described testimony
in its entirety
Federal Mediator Washington, after speaking with the
Union s negotiators, returned to the room where Hoyt
was waiting and told her that the Union had given him a
verbal counterproposal for Hoyt s consideration and
communicated the terms of that proposal to Hoyt Hoyt
testified that the proposal, as communicated to her by
Washington, did not address all the items that were still
in dispute, but did include more items than those that
Hoyt had previously indicated to Washington that Re
spondent was firm about Hoyt testified in effect that the
sole change in the Union s March 16 proposal, as submit
ted to her by Washington when compared with the
Union s prior proposal was that the Union had reduced
its vacation proposal by 1 week She testified that when
compared with the Union s prior proposal there was
very little movement in the March 16 proposed and fur
ther testified that the March 16 union proposal did not
reflect any movement at all on the disputed items that
Hoyt had previously advised the Union that Respondent
considered important such as hours of operation holi
days compensation productivity and demonstrators
The March 16 bargaining session ended with Hoyt and
Bullen meeting together briefly with Federal Mediator
Washington Washington started the conversation by
stating it seemed as though the parties were having prob
lems communicating Bullen stated he thought Hoyt had
become hostile and that her letter to him of February 26
was hostile Hoyt stated she was upset because Bullen
had not as promised submitted a written contract pro
50 The Union s last commission proposal had been 30 percent for
monthly sales of I through 8 motor vehicles 35 percent for monthly sales
9 through 10 and 40 percent for the sale of 1 l or more
51 The Union had previously proposed a minimum commission of $175
per sale
52 The 1984- 1986 agreement provided for a monthly draw of $1000 for
beginners and $1500 for journeymen The record reveals that the Union s
last proposal on this subject was $1250 for beginners and $1750 for jour
neymen
HAYWARD DODGE
posal to her and stated that his failure to do so had hin
dered negotiations, and that as far as she was concerned
the Union should submit Respondents February 19 last
and final contract offer to employees for a vote Bullen
stated he did not do this because the proposal included a
most favored nation clause He asked Hoyt whether that
clause was negotiable Hoyt answered yes 53 Bullen
stated he did not intend to negotiate about anything until
Hoyt removed the most favored nation clause from Re
spondent s last and final contract offer and stated that if
Hoyt did this, Bullen would then submit a new proposal
dealing with wages, compensation, productivity, and
hours Hoyt stated she did not intend to withdraw the
most favored nation clause until she could review what
Bullen intended to propose Bullen replied by stating he
could not allow the employees to vote on Respondent s
February 19 last and final contract offer as long as it in
cluded the most favored nation clause Hoyt responded
by stating that Bullen should either submit a new con
tract proposal to Hoyt at this time or submit the Re
spondent s last and final contract offer to the employees
for a vote Bullen answered, We 11 do what we have to
do The meeting ended at this point with Hoyt stating
take it back to the membership and let me know what
they say No further negotiations were scheduled
The above description of Hoyt s March 16 conversa
tion with Bullen was based on Hoyt s testimony Bullen s
testimony differs in significant respects He testified their
conversation took place immediately after the mediator
told him Hoyt had stated there were certain areas in
which Respondents bargaining position was inflexible
He further stated that he and Hoyt discussed these no
flex items but was not able to recall which items they
discussed He testified that he told Hoyt if Hoyt was
prepared to move in certain areas, the Union was pre
pared to move in certain areas, but again was unable to
remember which areas he mentioned Hoyt, according to
Bullen, replied by stating she still had to meet with Re
spondent s owner Turian on these heavy issues and
stated that the parties still had to address themselves to
the subject of the employees' hours of work Bullen testi
fled he responded by stating that this subject would be
addressed at an appropriate time and that at that time
the Union would be able to make some movement in that
area and had already made some movement In this last
regard he testified he informed Hoyt that the Union s
proposal permitting employees to volunteer for Sunday
work gave Respondent everything it needed Bullen fur
ther testified that during this conversation he advised
Hoyt Respondent would have to withdraw its most fa
vored nation clause because the Union would never
agree to a contract that included such a clause and also
indicated to Hoyt that the Union could not move in
certain areas Lastly, Bullen testified he advised Hoyt
he intended to recommend to the Union that the unit
employees not be allowed to vote on Respondents Feb
ruary 19 last and final contract offer because there were
53 Hoyt s undemed and credible testimony is that during one of the
earlier negotiation meetings held in February 1987 she advised Sullen
that the most favored nation clause was something that there was room
for movement on or words to that effect
459
certain proposals contained in that offer that would dras
tically change the terms and conditions of employment
of the employees employed by Respondent and have an
adverse effect on the rest of the Union s membership
within that geographical area
I rejected Bullen s above described testimony and
credited Hoyt's version of what occurred because when
they testified about that conversation, the testimonial de
meanor of Hoyt which was good, was better than Bul
len's which was not so good
q On March 20 1987 Respondent implements the
terms of its last and final contract offer
On March 19, 1987, Bullen telephoned Hoyt s office
and left a message for her that in substance stated he had
not submitted Respondents last and final contract offer
to the employees to vote on that because he considered
it to be a potentially injurious contract he had sent it
to the Union s International Union to determine whether
it was permissible to have the employees vote for its ac
ceptance, and he did not know when he would hear
from the International Union
On March 20, 1987, Respondents general manager,
Lane, posted a memorandum at the dealership, addressed
to all of Respondent s sales employees, which read as fol
lows
The last and final offer of Hayward Dodge has
been implemented effective 12 01 AM March 20,
1987 Hours and days of work will be changed of
fective immediately All items affecting compensa
tion will be effective April 1, 1987 If you have any
questions, ask your union representative
That same day Lane notified the Union by letter that this
memorandum had been distributed to all of Respondent s
sales employees
As set forth in the above described memorandum the
terms and conditions of employment set forth in Re
spondent s February 19, 1987 last and final contract offer
were implemented except for Respondents health wel
fare, and pension proposals nor did Respondent raise the
packs 54
r The April 2 1987 negotiating session
On April 2, 1987 at the request of the Federal media
tor the parties resumed negotiations Like their last bar
gaining session the parties negotiators did not talk face
to face rather Federal Mediator Washington met with
them separately Also present was Mike Day, the busi
ness representative for the Machinists Union the union
that represents Respondent's shop employees
Day informed Hoyt that the health, welfare, and pen
sion provisions contained in Respondents February 19
last and final contract offer could not be accepted by the
trust fund that administered those provisions and that
parity with the health and welfare provisions contained
54 Respondent was unable to implement its health welfare and pen
sion proposals because the trust funds involved refused to accept Re
spondent s contribution payments
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the Machinists Union contract, which was the Union's
bargaining position , must include life insurance and or-
thodontia benefits.
Hoyt modified Respondent's February 19 last and final
contract offer by proposing to increase Respondent's
health and welfare contribution payments and the bene-
fits that such increased payments would provide, to in-
clude life insurance and orthodontia benefits, plus other
benefits, and, with respect to the pension benefits, pro-
posed to increase its monthly contribution payments per
employee from $100 to $165 for the first year of the con-
tract and proposed to renegotiate that provision after the
contract's first year. Hoyt also proposed that the sales-
persons currently employed on Respondent's payroll,
whether journeymen or beginners, be "red circled" to in-
sulate them from the proposed (and in fact already im-
plemented) reduction in commissions and reduction in
other benefits, including the reduction in health and wel-
fare benefits.
Hoyt repeated her previous request that Bullen pro-
vide Respondent with a complete written contract pro-
posal. Bullen agreed to do this. The parties agreed that
Hoyt would pick up the Union's written proposal the
next day at the Union's office.
The meeting ended without another negotiating session
being scheduled by the parties or by the Federal media-
tor.
s. The Union's April 2, 1987 contract proposal
On April 3, 1987, as arranged by the parties at the
April 2 negotiating session , Respondent transmitted to
the Union a written counterproposal in response to the
Union's February 19 last and final contract offer. This
counterproposal, referred to as the April 2 counterpro-
posal, stated that it was being submitted "as a package
proposal" and that "if any section is rejected the entire is
rejected." In short it was an all-or-nothing proposal.
The Union's April 2 counterproposal significantly
modified its prior sales commission proposal by calling
for a 30-percent commission for all motor vehicles sold
regardless of the number sold or whether they were sold
by a regular or a beginner salesperson, whereas its prior
commission proposal had called for a 30-percent commis-
sion for monthly sales of I through 8 motor vehicles, 35-
percent for the sales of 9 through 10, and a 40-percent
commission for the sale of 11 or more.55 Also the
ss I note , as I have found infra , that the Union 's April 2 counterpro-
posal insofar as it dealt with employee commissions was still far apart
from Respondent's proposal on this subject. Thus, Respondent's proposal,
which was tied to employee productivity and which differentiated be-
tween regular and beginner salespersons , called for regular salespersons
to be paid a 25-percent commission for monthly sales of I through 9
motor vehicles and a 30-percent commission for monthly sales of 10 or
more, and for beginner salespersons to receive a 25-percent commission
on all sales . I also note that becasue the closer received 5 percent of the
35-percent sales commission paid under the 1984- 1986 agreement and be-
cause the nonunit employees now doing the work formerly done by the
closers no longer received this 5 percent, but are paid a salary by Re-
spondent, that the cost to Respondent of the Union's April 2 commission
proposal was approximately the same as its cost under the 1984-1986
agreement 's provision.
Union's April 2 counterproposal withdrew the Union's
previous vacation proposal and for the most part accept-
ed Respondent's proposal that the vacation provisions of
the 1984- 1986 agreement be followed. Likewise, with re-
spect to several of the other economic items in dispute,
the April 2 counterproposal proposed that the provisions
of the 1984-1986 agreement be followed. An examination
of the Union's April 2 counterproposal reveals that, for
the most part, in those instances where it was proposing
that the economic terms of the 1984-1986 agreement be
followed, it was either identical or substantially identical
to the Union's bargaining position immediately prior to
the counterproposal. But, in at least two instances that
involve the contract provisions dealing with the pack
and incentive bonuses, the Union's April 2 counterpro-
posal, by proposing the terms of the prior agreement,
sought substantially greater benefits for the employees
than had been previously proposed by the Union during
the February 11 negotiating session. Also when the April
2 counterproposal is compared with the terms of Re-
spondent's February 19 last and final offer, as modified
during the April 2 negotiating session, it reveals that the
Respondent and the Union were still far apart in their
negotiations concerning the following items: The defini-
tion of beginner salespersons; employees' working hours
including those proposals dealing with holiday and
weekend hours; employees' remuneration, including
those proposals dealing with commissions for regular and
beginner salespersons, minimum commission, pack, right
to shop trades, fleet sales, incentive bonuses; demonstra-
tors; claims limitation; retiree health and welfare; and the
section dealing with the term of the agreement. Also in-
asmuch as the Union's April 2 counterproposal rejected
outright Respondent's proposed most-favored-nation
clause, its zipper/management-rights clause, and its pro-
posal giving it the right to discharge employees for lack
of performance if they failed to sell a minimum number
of motor vehicles each month, it is clear that the parties
were still far apart with respect to those items.
Hoyt did not respond to the Union's April 2 counter-
proposal by arranging for another negotiation meeting
nor by communicating with the Union concerning the
proposal. She testified that her reason for not responding
to the proposal was that the meeting of April 2 ended
with the Federal mediator advising her that he would
get back to the parties to arrange for another negotiating
session, and testified she was waiting for the mediator to
schedule another negotiating session.
t. The communication between Hoyt and Salvaressa
On April 29, 1987, Hoyt and Salvaressa met at Re-
spondent's premises, pursuant to Salvaressa's request, to
discuss a grievance filed by the Union protesting the ter-
mination of 17 employees and the Respondent's unilateral
implementation of its February 19 last and final contract
offer. During this meeting Hoyt asked whether Sal-
varessa had heard from the Federal mediator. Salvaressa
stated "no" and stated he thought Hoyt was supposed to
contact the mediator. Hoyt replied, "no." There was also
a discussion about whether Hoyt had ever notified the
Union that she rejected the Union's April 2 counteroffer.
HAYWARD DODGE
Salvaressa stated Hoyt never rejected the offer Hoyt re
plied by stating, Well I in rejecting it now ss
On May 26, 1987 during a telephone conversation be
tween Hoyt and Salvaressa about Respondents health
and welfare contribution payments Salvaressa stated Re
spondent was still operating under the terms of the 1984-
1986 agreement and that health and welfare payment
contributions were to be made pursuant to the provisions
of that agreement Hoyt replied by stating Respondent
was not operating under the terms of the 1984-1986
agreement but it had implemented its February 19 last
and final contract offer and was operating under the
terms of that offer Salvaressa and Hoyt also discussed
whether Hoyt had previously advised Salvaressa that
Respondent was rejecting the Union s April 2 counter
offer Hoyt stated she had told him this during their
above described April 20 meeting, whereas Salvaressa
denied Hoyt stated this to him at that time
On May 27, 1987 Hoyt wrote Salvaressa as follows
In reference to our conversation of yesterday s
date as I stated to you in the presence of Mark
Lane while we met in his office over the outstand
ing salesmen s grievances, the last proposal of the
Union was rejected I further stated that I had
heard nothing further from the Federal Mediator to
which you replied that you were going to call him
I can only assume that since I still heard nothing
from the mediator that you did not attempt to reach
Mr Washington
Regarding the trust fund payments, I will instruct
my client to make payments consistent with our last
and final offer to the Trust Funds If the tender of
payments is rejected the monies will be placed in an
escrow account If coverage of the employees
ceases, I will further instruct my client to direct all
inquiries to you
On May 29, 1987 Salvaressa wrote Hoyt, as follows
In response to your letter dated May 27 1987 at
no time did you mention to me that the last propos
al from the Union was rejected you said that you
were waited [sic] to hear from the Federal Mediator
for another meeting
Regarding the trust fund contributions, as per our
conversation 5/26/87 I totally dispute this we are
still working under the same agreement and the
trust fund contributions remain the same
u Silva meets with Turian
During the spring of 1987 Fred Silva the Union s re
tired president, was asked by International Union Repre
sentative Bullen to meet with Hank Turian Respondent s
owner in an effort to help the Union negotiate a con
tract with Respondent Bullen explained to Silva that the
Union s negotiations with Respondent had not made
much progress because of Respondents insistence on
several takeaways Subsequently Silva met with
56 1 have credited Hoyt s rather than Salvaressa s testimony concern
mg this meeting because Hoyt impressed me as the more credible witness
I also note that Salvaressa did not specifically deny Hoyt told him at this
meeting that she rejected the Union s April 2 counteroffer
461
Turian twice in the summertime (June or July) and in
September
The summer meeting, a luncheon meeting, was held at
a restaurant with only Silva and Turian present Silva
indicated he was not sure he knew why the Union s offi
cials had asked him to talk with Turian and asked
Turian, What s the problem Turian stated that the
parties negotiators were having difficulty in reaching a
collective bargaining agreement Silva asked if there was
anything he could do to help matters Turian stated Silva
could help by again becoming union president because in
his opinion Silva was a reasonable person to deal with
Silva stated he would like to sit down with Turian like
in the old days and negotiate the agreement Turian
told him he did not think this was possible because
things had changed, the economics had changed, that it
cost more to operate the dealership now and he had
hired an attorney to negotiate for him Silva stated he
did not really care to negotiate with lawyers and indicat
ed he did not want to negotiate with Respondent s
lawyer, Marcia Hoyt because he did not think she was
qualified, that he felt she created a lot of problems and
was unreasonable Turian replied he was committed to
having an attorney negotiate for Respondent and indicat
ed he did not like dealing with Union President Sal
varessa because of Salvaressa s lack of experience in the
automobile sales business Silva tried to persuade Turian
to agree to sit down with him and negotiate an agree
ment Turian reiterated that things had changed since the
days Turian had become personally involved in the ne
gotiations with Silva and stated that now he would not
sit down with Silva and negotiate unless his attorney was
present because he did not know all the facts about the
contract, that he just knew the highlights and did not be
lieve Silva knew all the facts Turian also stated he did
not think Silva had the authority to negotiate on behalf
of the Union and indicated he could not negotiate an
agreement with Silva unless Silva returned to the Union
as president The meeting ended with Silva stating he did
not know all the facts concerning the negotiations and
would contract Turian again when he learned them
The above description of the summer meeting between
Turian and Silva is based on Turian s testimony Silva s
testimony differs considerably He testified they dis
cussed specific items that had been in dispute during the
contract negotiations-the most favored nation clause
the pack incentive bonuses and demonstrators-and
Turian explained that the reason Respondent had pro
posed all the so called takeaways was it was losing
money and Turian offered to prove this to Silva and the
meeting ended with Turian suggesting they meet again
approximately in a week or two
The September 1987 meeting was also a luncheon
meeting Present was Tony Caruso Respondents new
general manager who started work for Respondent late
in August 1987 As was the case at their first meeting
Silva asked Turian to sit down with him like they had
done in the past when Silva was union president and ne
gotiate an agreement And like the first meeting, Turian
explained it was no longer possible for him to personally
become involved in the negotiations because the eco
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nomic picture was not the same as it had been in the
past , that Respondent was losing money and if Silva
wanted to negotiate Silva would have to start from
scratch and deal with Respondent's attorneys who were
handling the negotiations , that it was not possible for
Turian to fire his current negotiators and sit down and
make a deal with Silva . When Turian indicated he was
firm in not being able to sit down and negotiate an
agreement with him , Silva stated the reason the Union
had called on him to meet with Turian was to see if he
could break the barrier that had developed between
Turian and the Union and that Silva really did not know
what he was doing talking with. Turian.
Silva informed Turian that the Union was adamantly
opposed to deleting the demonstrator provision from the
parties' agreement , as proposed by Respondent , and also
stated the Union would never enter into an agreement
with Respondent so long as Respondent continued to
insist on a most-favored-nation clause in the agreement.
Turian , after Silva explained the meaning of such a
clause, stated the Union had contracts with several other
dealerships, which differed from his contract to the bene-
fit of those dealerships and that Turian did not under-
stand why another dealership should get a better con-
tract than Respondent and, for that reason , his lawyers
were insisting on a most -favored -nation clause in the
agreement . Turian also stated that it was not his inten-
tion that the most-favored-nation clause prevent the par-
ties from reaching an agreement and stated if the Union
gave Respondent the economic relief it was demanding,
Respondent would withdraw its demand for a most-fa-
vored -nation clause . However , Turian was insistent that
the rest of the economic proposals included in Respond-
ent's final contract offer, especially the commission struc-
ture, remain in any agreement reached by the parties in
view of the financial losses Respondent had been experi-
encing and told Silva that Caruso was coming into the
business as a 50-percent partner and it was their intention
that in 5 years Caruso would buy out Turian's interest,
so it was important that Respondent start making a
profit.
At one point, when Turian stated Respondent was
losing money, Silva remarked that Respondent's most
recent general manager , Lane, had not managed the
dealership properly. Turian agreed that in the past Re-
spondent had employed bad managers and had lost
money during Lane's tenure, but stated there was no
way Respondent could operate profitably with the con-
tract that the Union was proposing.
The meeting concluded with Turian stating he would
talk to his negotiators and determine whether they could
send Silva a contract proposal that did not include the
most-favored-nation clause. Silva replied he needed to
get additional information about the contract negotia-
tions because he did not have all the facts.
The above description of the September 1987 meeting
between Turian and Silva is based on Turian's testimony.
Silva's testimony differs considerably. Silva testified
Turian volunteered he had experienced problems with
his previous General Manager Lane, who Turian stated
"was making statements as, the god damn Union, we
gotta get them out of here and you guys . . . won't have
a Union." Silva replied that Respondent's present manag-
er, Caruso, had made the same statements to employees
and that statements like that added "fuel to the fire."
Turian replied he would make sure it did not happen
again because management should not be telling employ-
ees things like that. Silva further testified that he and
Turian discussed some of Respondent's contract propos-
als which had prevented the parties' negotiators from
reaching an agreement and testified Turian explained that
these proposals were justified because Respondent was
losing money and in support of that assertion gave Silva
a financial statement that showed Respondent was losing
money, but Silva in effect told Turian he did not believe
the financial statement. The meeting ended, according to
Silva, with Turian stating Respondent could live without
some of the Respondent 's contract proposals such as the
most-favored-nation clause and the higher pack, and
stated he would meet again with Silva in approximately
1 week or so and give Silva a new proposal and stated,
"Let's see if we can put this thing to bed."
It is undisputed that neither Turian nor any other rep-
resentative of Respondent ever thereafter submitted a
new contract proposal to either Silva or to the Union.
Regarding the above-described meetings between
Turian and Silva, I credit Turian's and reject Silva's tes-
timony, in each instance where their testimony differs.
My reason for doing this is that Turian's testimonial de-
meanor was better than Silva's, which was not as
good.5 7
v. Hoyt's November 1987 meeting with Bullen
In November 1987, after the complaint against Re-
spondent issued in this case, counsel for the General
Counsel asked Hoyt if there was any possibility of the
parties settling this case short of litigation , and when
Hoyt stated there might be such a possibility, counsel for
the General Counsel arranged for Hoyt and Bullen to
meet alone at Hoyt's office.
During Hoyt's and Bullen's November 1987 meeting
each modified their prior contract proposals to some
extent. Hoyt refused, however, to modify Respondent's
bargaining position in these respects : Hours of operation;
Sunday and holiday openings; its compensation proposals
insofar as the proposal tied compensation to productivi-
ty; its proposal that it be allowed to discharge employees
who failed to sell a certain minimum of motor vehicles;
and its proposal that employees not be furnished demon-
strator automobiles or a sum of money in lieu of demon-
strator automobiles . Bullen also refused to yield on cer-
tain disputed items that the Union viewed as "sacred
cows," explaining to Hoyt that Union President Sal-
varessa was not willing to compromise on any of the dis-
57 I have considered that Caruso testified "yes" when asked whether
during the September meeting Turian told Silva, "I 'll get a proposal for
you and get back to you ." However, this testimony is not inconsistent
with Turian's testimony that he advised Silva he would talk to his nego-
tiators and determine whether they could send Silva a proposal that did
not include the most-favored -nation clause . I also note that the record re-
veals that Caruso, who was not a participant in Turian's conversation
with Silva, had virtually no memory at all of what they said to one an-
other, thus it is not surprising that his recollection of what Turian stated
was faulty.
HAYWARD DODGE
puted items that the Union viewed as sacred cows
some of which were being insisted on by Respondent
The result was that Hoyt and Bullen were not able to
settle the matter
w Respondents unilateral changes between late
August 1987 and January 1988
As described in detail supra, on March 20, 1987, Re
spondent unilaterally changed the terms and conditions
of employment of the employees represented by the
Union by implementing its last and final contract offer,
except for the sections dealing with health and welfare,
pensions and packs It is also undisputed that on Septem
ber 1, 1987 Respondent unilaterally changed the terms
and conditions of employment of its union represented
employees, as follows
Prior to September 1 pursuant to Respondents ample
mented last and final contract offer, regular salespersons
received a 25 percent commission for the sale of I
through 9 motor vehicles per month, and a 30 percent
commission for the sale of 10 or more motor vehicles per
month, whereas effective September 1 1987, regular
salespersons received a 25 percent commission for the
sale of 1 through 8 motor vehicles per month and a 30
percent commission for the sale of 9 or more motor vehi
Iles per month
Prior to September 1, pursuant to Respondents imple
mented last and final contract offer Respondent could
discharge a salesperson for failing to sell eight or more
motor vehicles a month whereas on September 1 1987,
Respondent notified its salespersons that effective that
date they could be discharged if they failed to sell nine
or more motor vehicles for 2 months in row
As I have indicated supra a salespersons commission
is based on a percentage of the gross profit of the trans
action The term pack refers to the cost of preparing de
livering and getting ready the vehicle that is sold In
order to compute the salespersons commission the pack,
which is a percentage of the vehicles factory invoice, is
deducted from Respondents gross profit on the particu
lar transaction thus the higher the pack s percentage the
lower the salespersons commission Prior to September
1, 1987, Respondents pack for domestic vehicles was 2
percent of the vehicles factory invoice and for imported
vehicles was 3 percent of the factory invoice 58 The
record also reveals that prior to September 1 besides the
2 percent pack for domestic and the 3 percent pack for
imported vehicles, Respondent imposed an additional
pack of $152 per vehicle, referred to as the pack on
weather and interior guard which the salespersons
complained about On September 1 Respondent raised
the percentage pack on domestic vehicles from 2 percent
to 3 percent and eliminated the additional $152 pack
charged the salespersons for weather and interior cherm
cal guard The record reveals that as a result of this
change in the pack that in some instances the amount of
a salespersons commission on a transaction increased, in
58 1 note that even though Respondent s implemented last and final
contract offer included a pack of 3 5 percent for domestic vehicles and 4
percent for imported vehicles Respondent did not implement that part of
the offer
463
other cases there was no change, and in other cases the
salespersons received less of a commission
As described in detail supra starting in approximately
late January 1987 or early February 1987 Respondent
changed from a system of employing two crews of sales
persons who worked two shifts a day during the week
days to a system of four crews of salespersons who
worked staggered shifts on those days However in
either December 1987 or January 1988 Respondent went
back to a system of employing two crews of salesper
sons, one crew worked from 9 am to 3 p in and the
other worked the remainder of the workday from 3 to 9
p in, Monday through Friday The work schedule of the
two crews was structured so that each Tuesday the
salespersons employed on one crew and on each Thurs
day the salespersons employed on the other crew were
required to work 12 hours a day Previously under the
terms of the 1984-1986 agreement and under the terms
of the Respondents last and final contract offer imple
mented about March 20, 1987 no salesperson was re
quired to work more than 8 hours a day on Monday
through Thursday
It is undisputed that Respondent was open for business
on New Years Day in 1988 and that New Years Day
was recognized as a legal holiday under both the terms
of the 1984-1986 agreement and Respondents last and
final contract offer implemented on March 20 1987
However while the 1984-1986 agreement provided that
no employee shall be required or permitted to work on
the premises of the employer on legal holidays, the Re
spondent s March 20, 1987 last and final contract offer
specifically deleted that part of the 1984-1986 agreement
Under the circumstances the General Counsels conten
tion that Respondent unilaterally changed the term and
condition of employment by requiring the salespersons to
work on New Year's Day in 1988 is without merit
In its memo distributed to the salespersons on Septem
ber 1, 1987, entitled Economic Proposals to be Imple
mented, Respondent indicated it intended to implement
certain proposals dealing with among other things the
monthly draw it paid to beginner salespersons the com
missions it paid to beginner salespersons, the way it pro
rated the vacation pay of salespersons who were das
charged or quit, the amount of Respondents monthly
pension fund contributions the salespersons health bene
fits and retired employees health and welfare benefits
When the aforesaid proposals are compared with the
terms of Respondents February 19, 1987 last and final
contract offer which Respondent implemented on
March 20, 1987, it reveals there are no differences be
tween the aforesaid `Economic Proposals to be Imple
mented and Respondents February 19 last and final
contract offer Also there is no showing that any of the
aforesaid Economic Proposals to be Implemented,' set
forth in the September 1 memo to the employees dif
fered from the employees terms and conditions of em
ployment then in effect Under these circumstances
there is no meet to the General Counsels contention
that Respondent acted unilaterally on September 1 1987
by implementing a lower commission rate for beginner
salespersons by making changes in the benefit pro
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gram," and by "a prorated pay out formula for vacation
time of terminated employees."
Under the parties' 1984-1986 agreement salespersons
who sold 10 motor vehicles in a month received an in-
centive bonus of $500 in addition to their regular com-
mission; an incentive of $1000 for selling 15 motor vehi-
cles a month; and for selling over 15 vehicles a month an
additional bonus of $100 per vehicle in excess of 15. Re-
spondent eliminated this program of incentive bonuses
when about March 20, 1987, it implemented its last and
final contract offer, which provided for the salespersons
to receive only one incentive bonus and that was a $500
bonus for selling 15 or more vehicles per month. It is un-
disputed that from the time Anthony Caruso replaced
Lane as Respondent's general manager , late in August
1987 that Respondent did not pay its salespersons the in-
centive bonus of $500 when they sold 15 or more motor
vehicles per month.
The 1984-1986 agreement contained a union-security
clause that required employees, as a condition of employ-
ment , to join the Union after 30 days of employment.
The union-security clause also included a further provi-
sion which stated that "[i]n order to assist in the oper-
ation of this agreement, it is agreed" that, among other
things, Respondent was obligated to notify the Union of
the names of employees who quit or were terminated
and required that when an employee was hired the em-
ployee report immediately to the Union. Respondent's
last and final contract offer included the aforesaid provi-
sions.
It is undisputed that from the date Caruso became Re-
spondent's general manager, in late August 1987, he did
not notify the Union about the termination of salesper-
sons and with respect to new hires, initially Caruso sent
all of them to the Union for a referral slip, but in ap-
proximately October or November 1987 told the new
hires that since Respondent did not have a collective-
bargaining contract with the Union that they could use
their own discretion whether they wanted to go down
and join the Union. Subsequently, in January 1988, ap-
parently in response to the Union's threat to discipline
employees who worked on legal holidays under the
terms of the 1984-1986 agreement, Respondent informed
the employees that the 1984-1986 agreement was no
longer in effect and because of that the contractual
union-security clause was not enforceable, which, Re-
spondent told the employees, meant that the Union could
not discipline them unless they were union members and
Respondent advised the employees that those employees
who wished to remain union members should do so and
those who chose to withdraw from the Union in order to
avoid the possibility of union discipline had the right to
take a withdrawal from the Union.
As I have described in detail supra, on January 13,
1987, Bullen, the Union's principal negotiator, and Hoyt,
Respondent 's principal negotiator , agreed that when the
1984-1986 agreement terminated on January 31, 1987,
that the parties would extend the agreement on a day-by-
day basis, with the further understanding that if one of
the parties wanted to terminate the agreement it would
give the other party 72 hours' notice of its intent. The
General Counsel and the Charging Party urge that the
1984-1986 agreement is still in effect because neither
party has given the 72-hour notice of intent to terminate
the agreement. This contention borders on the frivolous
because by virtue of its February 19, 1987 written notice
to the Union of its intent to implement its last and final
contract proposal, in the place of the 1984-1986 agree-
ment, Respondent effectively gave the Union substantial-
ly more than 72 hours' notice of its intention to terminate
the 1984-1986 agreement.
2. Discussion
a. The alleged bad faith bargaining
The complaint alleges and the General Counsel con-
tends that, in violation of Section 8(a)(5) and (1) of the
Act, Respondent bargained with the Union in bad faith
without any intention of reaching an agreement. The law
is settled that in determining whether a party has negoti-
ated in bad faith without any intention of reaching an
agreement, it is necessary to evaluate the entire course of
the bargaining and all the relevant circumstances sur-
rounding the bargaining. In support of his argument that
Respondent engaged in overall bad-faith bargaining,
counsel for the General Counsel relies on the following
factors: Respondent proposed to eliminate or substantial-
ly modify almost every provision of substance in the
1984-1986 agreement, and proposed to eliminate or sub-
stantially reduce almost all the employees' economic ben-
efits encompassed by the agreement, and proposed other
more onerous terms and conditions of employment, and
lied when it claimed it made these proposals because it
was losing money; Respondent's bargaining position con-
cerning health, welfare, and pension benefits is evidence
of its overall bad-faith bargaining; Respondent refused to
submit a contract proposal to the Union at the parties'
first negotiating session, even though Respondent previ-
ously had prepared such a proposal for submission; Re-
spondent proposed to change sections of the 1984-1986
agreement, which were not listed in its letter notifying
the Union of its intention to reopen the agreement for
negotiations; Respondent attempted to have a Federal
mediator participate in the negotiations from the very be-
ginning of the negotiations; Respondent took the position
that the negotiations had reached an impasse, even
though the Union had just modified its bargaining pro-
posals; Respondent's general manager stated he intended
to get rid of the Union and blow out the Union; and Re-
spondent hired an excessive number of salespersons, in-
cluding inexperienced salespersons, in order to discrimi-
nate against employees because of their union sympathies
and activities. For the reasons set forth below, I find the
factors relied on by the General Counsel, when viewed
separately or altogether, fail to establish Respondent en-
gaged in bad-faith bargaining.
Even though Respondent proposed to eliminate or
substantially modify almost every provision of substance
in the 1984-1986 agreement and to eliminate or, substan-
tially reduce almost every economic benefit encompassed
by the agreement, and to establish more onerous terms
and conditions of employment, this does not, under the
circumstances of this case, demonstrate Respondent en-
HAYWARD DODGE 465
tered into negotiations with an intent to frustrate the bar
gaining process and avoid reaching an agreement with
the Union As described in detail supra, all of Respond
ent s bargaining proposals those dealing with noneco
nomic matters as well as economic ones were based on
legitimate business considerations which were explained
to the Union In support of its economic proposals,
which substantially reduced employees existing wages
and benefits Respondent explained it was losing money
and competing against employers whose hours of bust
ness and workers productivity were not governed by
the restrictive terms of the 1984-1986 agreement that its
position with respect to grievance and arbitration was
prompted by its experience with the stale grievances and
other problems generated by the current grievance arbi
tration procedure, and that its most favored nation pro
posal was prompted by the Union s contracts with other
employers containing more favorable provisions than
those in the 1984-1986 agreement Respondents explana
tion for making these and its other proposals, which ex
planation are set forth in detail supra, were all based on
legitimate business considerations Nor does the record
contain sufficient evidence to refute Respondents expla
nations for its various bargaining proposals 59 None of
Respondents explanations were so unreasonable or it
logical to warrant the conclusion that by offering them
Respondent demonstrated an intent to frustrate the bar
gaining process and avoid reaching an agreement I also
note that Respondents proposal that all the employees
currently employed by Respondent would be red cir
cled in order to insulate them from Respondents pro
posed wage and benefit reductions militates against the
inference that the magnitude of the decrease in the em
ployees economic benefits proposed by Respondent
constitutes evidence of bad faith bargaining It is for all
the foregoing reasons that I find the content of Respond
ent s bargaining proposals fails to demonstrate Respond
ent made those proposals with an intent to frustrate the
bargaining process, rather than for a legitimate purpose
The evidence pertinent to the General Counsels con
tention that Respondents bargaining about employees
health and welfare and pension benefits constitutes evi
dence of its overall bad faith bargaining is as follows In
its January 28 1987 contract proposal Respondent pro
posed to pay for the cost of the Kaiser Health Plan SS
one of the plans provided for under the health insurance
provisions of the 1984-1986 agreement,60 and proposed
to maintain the current rate of pension contnbution pay
ments which was $165 a month per employee under the
terms of the 1984- 1986 agreement The parties did not
discuss these proposals However Respondents principal
negotiator, Hoyt, testified in effect that under the Janu
ary 28 health and welfare proposal employees would
59 Respondent did not lie as contended by the General Counsel and
the Union when it advised the Union it was losing money The evidence
supra, shows that in 1986 Respondent lost over $462 000 and in 1987 lost
over $700 000 and in 1986 its total sales of motor vehicles dropped sharp
ly from 1985 and in 1987 dropped sharply from 1986
60 The January 28 proposal was silent regarding whether employees
dependents were covered by that proposal They were covered under all
the health plans provided pursuant to the terms of the 1984 - 1986 agree
ment
have received substantially less benefits than they were
currently receiving under the 1984-1986 agreement be
cause the January 28 proposal did not grant employees
the life insurance dental vision and prescription drug
benefits they were currently receiving
On February 11, 1987 Respondent modified its above
described January 28 health and welfare and pension
proposals It now proposed to reduce its monthly pen
sion contribution payments from $165 to $100 per em
ployee and to use the $65 taken from the pension contri
button payments to increase employees health benefits to
include life insurance, dental, vision, and prescription
drug benefits This proposal specifically excluded em
ployees dependents from the plan s coverage and like
the previous proposal granted employees substantially
less health benefits than they were receiving under the
terms of the 1984-1986 agreement Once again the par
ties did not discuss these proposals
On April 2, 1987 Respondent modified its above de
scribed February 11 health and welfare proposals, by
proposing to increase its health and welfare contribution
payments and to increase the benefits that the increased
contribution payments would provide, to include in
creased life insurance and orthodontic benefits as well as
other increased health benefits and with respect to pen
sion contributions proposed to increase its monthly con
tribution payment per employee from $100 to $165 for
the first year of the contract and to renegotiate its pen
sion proposal after the conclusion of the contract's first
year Respondent further proposed that all the employees
currently employed would be red circled to insulate
them from among other things the proposed reduction
in health and welfare benefits 61
As I have found supra Respondent had a legitimate
explanation for proposing to reduce employees econom
is benefits including health welfare, and pension bene
fits When this circumstance is viewed in the context of
Respondents efforts to make its health and welfare pro
posal more acceptable to the Union by proposing to red
circle all of its current employees so they would not
suffer a reduction in their benefits and by proposing to
maintain the current level of pension contributions for all
employees, it is clear that the General Counsel has failed
to prove that Respondents bargaining stance about
health welfare and pension benefits is evidence that it
was bargaining in bad faith with no intention to reach an
agreement
It is not evidence of bad faith bargaining that during
the first bargaining session Respondent refused to submit
a contract proposal to the Union until after Respondent
first considered the Union s proposal even though Re
spondent had previously prepared a contract proposal to
submit to the Union It was not unreasonable for Re
spondent to first consider the Union s contract proposal
and after considering that proposal to revise its already
prepared proposal and submit a full and complete con
tract proposal at the next bargaining session , rather than
Si As I have found supra although Respondent on March 20 1987 on
plemented its February 19 1987 last and final contract offer it did not
implement the health welfare and pension part of that proposal
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
submit the outline of a proposal it had prepared prior to
considering the Union 's proposal.
Likewise it was not evidence of bad -faith bargaining
for Respondent to have included among its bargaining
proposals changes in sections of the 1984- 1986 agree-
ment that were not listed in its letter notifying the Union
of its intention to reopen the agreement for negotiations.
In this regard , I note the Union 's initial contract propos-
als, like Respondent 's, included changes in sections of the
1984-1986 agreement which were not among the sections
listed in the Union 's reopening letter , and the Union's re-
opening letter , like Respondent 's specifically stated the
Union reserved the right during contract negotiations to
revise , amend , change , or add to the list of changes enu-
merated in its reopening letter. In other words, the
Union 's representatives , as well as Respondent 's, inter-
preted the 1984-1986 agreement as not limiting negotia-
tions to the contract sections specifically designated by
the parties in their reopening letters. It was only when
the Union 's lawyer entered the picture that the Union
took this position . Under the circumstances, Respond-
ent's interpretation of the 1984-1986 agreement as allow-
ing it to propose changes in the sections of the agree-
ment not designated in its reopening letter, cannot be
viewed as evidence that Respondent was bargaining in
bad faith.
Also without merit is the General Counsel 's contention
that Respondent 's bad -faith bargaining is evidenced by
Hoyt's attempt to have a Federal mediator participate in
the negotiations immediately after the initial bargaining
session . Hoyt's effort to have a mediator enter the nego-
tiations at that time is not type of conduct that consti-
tutes an indicia of bad-faith bargaining . This is especially
true in the instant case because Hoyt 's reason for asking
the mediator to participate in the negotiations was not
unreasonable; she thought the negotiations were going to
be difficult because of Union President Salvaressa 's refus-
al at the first negotiating session to discuss the Union's
bargaining proposal with Hoyt and Hoyt's prior experi-
ence in negotiating collective -bargaining agreements in-
volving the Union was that the negotiations went more
smoothly when a mediator was present.
Hoyt 's position that negotiations had reached an im-
passe when Respondent made its February 19, 1987 last
and final contract offer, a position she voiced to the
Union , may have been premature , when measured
against the legal definition of impasse, but there is no
evidence that Hoyt was not acting in good faith when
she arrived at this conclusion . By February 19 the parties
had held 11 negotiating sessions and even though the
Union had modified its bargaining position in certain re-
spects, the parties were still far apart on virtually each of
the several disputed economic proposals that the parties
viewed as crucial to a new agreement . What was even
more significant from Hoyt 's point of view was that the
Union by its contract proposals had indicated it was ada-
mantly opposed to either eliminating or reducing any of
the economic benefits contained in the 1984-1986 agree-
ment , except for the possible exception of the provision
dealing with incentive bonuses, whereas the essence of
the Respondent 's bargaining position was that it needed
relief from the economic provisions contained in the
1984-1986 agreement because it was losing money and
could not compete successfully against some of its com-
petitors . However , the Union had ignored Respondent's
bargaining position . Rather the Union had informed Re-
spondent that because the accountant employed by the
Union to review Respondent 's financial records had ad-
vised the Union that Respondent was making a profit
and that the Respondent 's claim that it was losing money
was false, the Union did not believe there was a justifica-
tion for any of Respondent 's proposals that reduced em-
ployees' wages and other economic benefits . In view of
these circumstances-the parties were not close to reach-
ing agreement on any of the disputed economic propos-
als and the Union erroneously believed Respondent was
operating at a profit and did not need the economic relief
it was requesting-its is hardly surprising that Hoyt con-
cluded that negotiations had deadlocked . Thus, while
Hoyt 's conclusion that negotiations had reached an im-
passe as early as February 19, 1987, may not have been
legally correct , it cannot be said that she was acting in
bad faith when she reached this conclusion.
Lastly, with respect to the General Counsel 's conten-
tions, as I have found supra, there is no credible evi-
dence that Respondent 's general manager told employees
Respondent intended to get rid of the Union or blow out
the Union, and the record fails to establish Respondent
hired an excessive number of salespersons , including in-
experienced ones, for the purpose of discriminating
against employees because of their union sympathies or
activities.
In evaluating the evidence to determine whether Re-
spondent engaged in bad-faith or surface bargaining, be-
sides the above -described factors relied on by the Gener-
al Counsel , I considered Hoyt's statement to Bullen that
Respondent 's last and final contract offer was "just that"
and that, regardless of any bargaining movement by the
Union , Respondent was at the "bottom line " and did not
intend to change the terms of that offer . I have also con-
sidered that Respondent did not attempt to schedule an-
other negotiation meeting after its receipt of the Union's
April 2 bargaining proposal, even though that proposal
constituted a substantial modification of the Union's prior
proposal.
Hoyt's statement that Respondent 's February 19 last
and final contract offer was the "bottom line" that Re-
spondent did not intend to modify, does not warrant the
inference Respondent was engaged in unlawful surface
or bad -faith bargaining , rather than lawful hard bargain-
ing. For to infer from Hoyt 's comment that Respondent
would refuse to negotiate with the Union even if the
Union modified its prior bargaining position, would
"lend too close an ear to the bluster and banter of nego-
tiations" and "would frustrate the Act's strong policy of
fostering free and open communications between the par-
ties." Allbritton Communications , 271 NLRB 201, 206
(1984).
Regarding Respondent 's failure to schedule another
negotiating session after its receipt of the Union 's April 2
bargaining proposal , which proposal constituted a sub-
stantial change from the Union 's prior proposal, the
record reveals that the April 2 negotiation meeting
HAYWARD DODGE
ended without another meeting being scheduled and with
Hoyt believing that any further negotiation meetings, like
the April 2 meeting itself, would be scheduled by the
Federal mediator Thereafter Hoyt and Salvaressa en
gaged in a dispute over who should contact the Federal
mediator to schedule another meeting Hoyt informed
Salvaressa that it was Hoyt s understanding from talking
with him that Salvaressa was going to call the mediator
and that Hoyt assumed because she had still not heard
from the mediator that Salvaressa had not attempted to
contact him Salvaressa disputed this and told Hoyt that
his recollection was that Hoyt had indicated to him she
was waiting to hear from the mediator for another meet
ing This is where the matter ended, with neither Hoyt
nor Salvaressa contacting the mediator to schedule an
other meeting In short both parties were equally to
blame for the mediator's failure to schedule another
meeting
In analyzing Respondents conduct to determine
whether it was engaged in unlawful bad faith bargaining,
rather than lawful hard bargaining, I find it noteworthy
that Respondent's conduct in certain significant respects,
when viewed in its totality, is more consistent with
good faith rather than with bad faith bargaining In this
regard, the record reveals Respondent met its bargaining
obligation by meeting regularly and frequently with the
Union, by presenting numerous written proposals, by ex
plainmg and justifying its proposals to the Union, by
agreeing to the presence of a Federal mediator to help
the parties reach an agreement, and by supplying the
Union with requested financial information 62 It is also
noteworthy that Respondents approach to bargaining
was cooperative in certain significant respects Respond
ent provided the requested financial information and bar
gaining proposals in a timely manner,63 Respondent at
tempted to accommodate the busy negotiating schedule
of the Unions principal negotiator 64 Respondents prin
cipal negotiator in an effort to move the negotiations
along drove the approximately 90 miles to the office of
the Union s principal negotiator to pick up a copy of the
Union s latest contract proposal and to meet with the
Union s negotiator to discuss the contents of that propos
al 65 Respondent agreed to extend and in fact extended
82 During the February 9 1987 review by McEwan of the Respond
ent s books and records she was supplied with all the books and records
she requested which were then available at Respondents facility Nei
ther McEwan nor the Union ever asked Respondent to arrange for
McEwan to review the records which on February 9 were not available
at Respondent facility There is no evidence that such a request would
have been futile Rather the record indicates Respondent would have
complied with such a request
ss Indeed it was Respondent rather than the Union which displayed a
sense of urgencj in arranging for the Union s accountant to come to its
premises and review its financial records
ea As described supra during the January 13 1987 bargaining meeting
Sullen indicated he was involved in negotiations involving several other
employers and because of this it would be difficult for him to schedule
further negotiation meetings with Respondent and asked if Hoyt could
work around his busy schedule Hoyt replied she was flexible on where
and when she met and stated she would be amenable to meeting at Bul
len s office in Sacramento-a distance of approximately 90 miles from
Hoyt s office-if that would be more convenient for Bullen
65 I note that when Hoyt arrived at Bullen s office to pick up the
Union s contract proposal and meet with him to discuss that proposal
she learned Bullen was unable to meet with her and also discovered that
467
the 1984-1986 agreement, when the parties failed to
reach agreement on a successor contract by the contrac
tual anniversary date, and, pursuant to its agreement to
extend the 1984-1986 agreement, Respondent continued
to inform newly hired salespersons that they were obli
gated to visit and join the Union pursuant to the agree
ment s union security clause The aforesaid circum
stances, when viewed in their totality, do not portray an
employer that was bargaining in bad faith without any
intention of reaching an agreement rather they warrant
the inference that Respondent was engaged in good faith,
albeit hard, bargaining
I also note that the record reveals the Union, as well
as Respondent, was using hard bargaining tactics Thus,
from the start of the negotiations the Union took the po
sition that it would not under any circumstances enter
into an agreement that included Respondents proposed
most favored nation clause 86 And at the March 16, 1987
negotiation meeting, the Union in effect refused to bar
gain any further with the Respondent about employees
wages, compensation, hours, and productivity unless Re
spondent agreed to drop its demand for the most fa
vored nation clause Previously the Union had persuaded
Respondent to postpone implementing its last and final
contract offer by promising Respondent that at the
March 16 bargaining session the Union would transmit to
Respondent a complete and written contract proposal
containing changes from its prior proposal During the
March 16 meeting not only did the Union fail to signifi
cantly modify its prior contract proposal but also failed
to submit a written contract proposal to the Union as
promised and, as indicated above, advised the Union it
would submit a new bargaining proposal dealing with
wages compensation, productivity, and hours only if Re
spondent dropped its demand for a most favored nation
clause but refused to reveal its new proposal unless Re
spondent first committed itself to withdrawing its
demand for a most favored nation provision Clearly, to
intelligently evaluate the Respondents bargaining post
tion and the content of the Respondents bargaining pro
posals it is necessary to consider the probable effect on
Respondents state of mind of the Unions above de
scribed hard bargaining tactics, as well as the effects on
Respondents state of mind of the Unions erroneous
belief, expressed to Respondents negotiators on several
occasions that Respondent was lying when it claimed its
business was losing money
It is for all the above reasons that after reviewing the
entire course of the parties bargaining and the totality of
the circumstances surrounding that bargaining I have
concluded that Respondent was engaged in good faith,
albeit hard, bargaining 67
the contract proposal that Sullen had prepared was not in fact a new
proposal but was simply a recapitulation of what the Union believed was
the state of the current contract negotiations
BB The only explanation that the Union offered to Respondent for its
adamant opposition to the most favored nation clause was that the
Union s International union would not permit it to accept such a clause
67 Although Respondents illegal unilateral changes found infra might
be evidence of bad faith bargaining in other contexts I am of the opinion
that the totality of Respondents conduct as described above does not
establish an intent not to reach an agreement
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. The alleged unilateral implementation of the terms
of Respondent's last and final contract offer
On March 20, 1987, Respondent unilaterally imple-
mented the terms of its February 19, 1987 last and final
contract offer, except for the provisions dealing with em-
ployees' packs and health, welfare, and pension benefits.
The General Counsel takes the position, as alleged in the
complaint, that by engaging in this unilateral conduct
Respondent violated Section 8(a)(5) and (1) of the Act.
Respondent's defense is that on March 20, 1987, when it
implemented its last and final contract offer, the bargain-
ing negotiations were at an impasse.
An employer violates his duty to bargain if, when ne-
gotiations are sought or are in progress, he unilaterally
institutes changes in existing terms and condition of em-
ployment. NLRB v. Katz, 369 U.S. 736, 741-743 (1962).
The principal exception to this rule occurs when the ne-
gotiations reach an impasse. When impasse occurs, the
employer is free to implement changes in employment
terms unilaterally so long as the changes have been pre-
viously offered to the Union during bargaining. Huck
Mfg. Co. v. NLRB, 693 F.2d 1176, 1186 (5th Cir. 1982),
and cases cited. Because neither party is required to
"make concessions or to yield any position fairly main-
tained" in collective bargaining (NLRB v. Blevins Pop-
corn , 659 F.2d 1173, 1187 (D.C. Cir. 1981)), impasse is "a
recurring feature in the bargaining process." Bonanno
Linen Service v. NLRB, 454 U.S. 404, 412 (1982).
Some of the relevant factors used to determine wheth-
er an impasse exists are "the parties' bargaining history,
the good faith of the parties in negotiations, the length of
negotiations, the importance of the issue or issues as to
which there is disagreement [and] the contemporaneous
understanding of the parties." :Taft Broadcasting Co., 163
NLRB 475, 478 (1967), affd. sub nom. Television Artists
AFTRA, Kansas City Local, 395 F.2d 622 (D.C. Cir.
1968). A genuine impasse in negotiations exists only
where the parties have exhausted all avenues for reach-
ing agreement and there is "no realistic possibility that
continuation of discussion at that time would have been
fruitful." Television Artists AFTRA, Kansas City Local v.
NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968). There is no
impasse where one of the parties makes concessions that
are not "trivial or meaningless" (NLRB v. Webb Furni-
ture Corp., 366 F.2d 314, 316 (4th Cir. 1966)), for a con-
cession by either party "on a significant issue in dispute
precludes a finding of impasse even if a wide gap be-
tween the parties remains because under such circum-
stances there is reason to believe that further bargaining
might produce additional movement." Old Man's Home
of Philadelphia v. NLRB, 719 F.2d 683, 688 (3d Cir.
1983). The essential question is whether there has been
movement sufficient "to open a ray of hope with a real
potentiality for agreement if explored in good faith in
bargaining sessions." NLRB v. Webb Furniture Corp.,
supra.
Applying the foregoing standards to the instant case, I
find that the parties had reached an impasse in their ne-
gotiations, when on March 20, 1987 Respondent unilater-
ally implemented the terms of its last and final contract
offer. This finding is based on the totality of the follow-
ing objective considerations.
As I have found supra, the evidence does not establish
Respondent was engaged in bad-faith bargaining, rather
Respondent bargained with the Union in good faith with
a sincere desire to reach an agreement . Nor was this a
situation where the parties were bargaining for an initial
collective-bargaining contract, rather since 1972 they had
successfully negotiated several collective-bargaining con-
tracts.
Early in the negotiations the parties realized the im-
portance of Respondent's proposals, which reduced and
eliminated employees' current wage and economic bene-
fits and added to the agreement a most-favored-nation
provision and a provision giving Respondent the right to
discharge employees for failing to sell a minimum
number of motor vehicles. Respondent placed the Union
on notice that it viewed the above-described proposals as
having paramount importance to the economic well
being of Respondent and that the Union's failure to
accept the necessity of such takeaways would deadlock
the entire bargaining process. On the other hand, as
viewed by the Union and explained by the Union to Re-
spondent, Respondent's above-described bargaining pro-
posals were unacceptable to the Union because if accept-
ed they would mean a serious loss to its members em-
ployed by Respondent and would constitute a "potential-
ly dangerous" collective-bargaining contract for the
Union's membership employed by other employers. In
short early in the negotiations both parties realized that
agreement would be possible only if they were able to
resolve their dispute concerning Respondent's proposed
takeaways.
At the end of the March 16, 1987 negotiating session,
after 12 negotiating sessions , the parties were still far
apart on all the significant issues that they realized had
to be resolved before an agreement was negotiated.
These issues involved Respondent's bargaining proposals
dealing with compensation, hours of operation, Sunday
and holiday openings, productivity, demonstrator motor
vehicles, compensation in lieu of demonstrator motor ve-
hicles, and the most-favored-nation provision. Not only
was there still an extremely wide gap between the par-
ties' bargaining positions concerning all the aforesaid
matters, it is significant that a substantial number of the
Union's bargaining proposals called for Respondent to
increase employees' current economic benefits and,
except for the Union's incentive bonus proposal, not one
of the Union's proposals accepted the idea of a decrease
in any of the employees' current economic benefit. The
reason for the disparity between the parties' bargaining
positions is that based on the opinion of the accountant it
had employed to review the Respondent's business
records, the Union thought Respondent's business was
making a profit, instead of losing money as claimed by
Respondent,68 and based on a survey of Respondent's
competitors the Union believed that Respondent's hours
of operations, including Sunday's and holiday's, were
comparable with Respondent's competition.69 The Union
88 As I have found supra, the Union's belief that Respondent was
making a profit and not losing money was erroneous.
89 This survey considered only the employers doing business in the
geographical area adjacent to Respondent's business. The Union did not
Continued
HAYWARD DODGE 469
advised Respondent it did not believe Respondent s
claim that it was losing money, but thought it was
making a profit, and disbelieved Respondents further
claim that it was unable to operate competitively under
the terms of the 1984-1986 agreement Respondent re
plied that the Union s accountant had misinformed the
Union about the state of Respondents financial condi
tion that Respondent was losing money despite what the
accountant said, and that the Union s survey was mis
leading because it did not cover all of Respondents com
petition Viewed against this background-the Union s
sincere belief that Respondent did not have a legitimate
basis for seeking relief from the economic provisions of
the 1984-1986 agreement and Respondents equally sin
cere belief that it had legitimate reasons for seeking such
relief-it is not surprising that the parties as of the start
of the March 16 negotiating session had not made any
perceptible progress in resolving any one of the disputed
contract issues which the parries realized had to be re
solved if they were to negotiate a contract The fact that
prior to March 16 the parties had modified their respec
tive positions in certain insignificant respects, as de
scribed in detail supra, did not constitute, under the par
ticular circumstances of this case, real progress toward
reaching agreement on any of the critical issues This is
so because Respondent remained unyielding in its basic
bargaining position that in order to operate profitably
and competitively it needed relief from the economic
terms of the 1984-1986 agreement, whereas the Union
remained unyielding in its basic position that no such
relief was necessary because Respondent was not losing
money as it claimed and was not operating at a com
petitive disadvantage as it claimed but was making a
substantial profit operating under the terms of the 1984-
1986 agreement In view of the parties above described
unyielding bargaining positions the modifications they
made in the bargaining proposals prior to March 16,
1987 did not constitute the type of bargaining movement
which, when viewed in the context of what occurred on
March 16 was reasonably calculated to give the parties
hope that continuation of the negotiations following the
March 16 negotiation meeting would be fruitful
What occurred during the March 16 bargaining session
reveals that the parties held irreconcilable positions on
all the critical issues that divided them and reveals that
there was no reason for either of the parties to reason
ably believe a continuation of discussions would have
been fruitful In a discussion between Hoyt and Bullen
which took place shortly before the March 16 meeting
and which concerned Respondents last and final con
tract offer, Hoyt told Bullen that Respondent s last and
final contract offer was just that and that Respondent
believed the negotiations were at an impasse and that to
break the impasse the Union at the March 16 meeting
would have to submit a new bargaining proposal that
showed some movement in the Union s bargaining posi
survey the entire geographical area from which Respondent drew its cus
tomers I also note that the Unions survey revealed that some of the
dealerships located in Respondents immediate geographical area albeit
only a few operated for longer hours and had more flexibility to operate
on Sundays and holidays than Respondent currently enjoyed under the
terms of the 1984-1986 agreement
tion involving the critical issues that divided the parties
Bullen stated that the Union s president was searching
his soul to determine whether or not the Union, so as to
reach agreement with Respondent would be willing to
sacrifice any of the sacred cows contained in the 1984-
1986 agreement and promised Hoyt that at the March 16
meeting the Union would furnish Hoyt with a written
contract offer which that contain proposals showing
movement from Respondents previous proposals How
ever, despite Bullen s assurances, at the March 16 meet
mg the Union did not change its bargaining position as
to any one of the critical issues that the parties knew
they would have to reach agreement on if they were to
negotiate a contract Rather, in response to the Respond
ent s last and final contract offer and in response to
Hoyt s statement that Respondents bargaining position,
as expressed in Respondents last and final offer, was
firm with respect to its proposals dealing with compensa
tion, productivity, Sunday and holiday openings, hours
of operations grievance arbitration the time limits for
the filing of an initial grievance, retirees health and we]
fare, and demonstrators the Union presented a verbal
proposal at the March 16 meeting, which when com
pared to the Union s prior contract offer did not make
any additional movement on any of the crucial issues in
dispute, the only change made by the March 16 proposal
in the Union s bargaining position was to reduce its vaca
tion demands by 1 week Thus it is not surprising that
the March 16 meeting ended with neither party asking
for another negotiation meeting and with the Federal
mediator not scheduling another bargaining session 70
Any doubt that the negotiations were hopelessly dead
locked by the end of the March 16 negotiation meeting is
removed by the conversation between Bullen and Hoyt
toward the end of the March 16 meeting Bullen in
formed Hoyt that the Union did not intend to bargain
about anything until Respondent dropped the most fa
vored nation clause from its last and final contract offer
and stated if Respondent did this the Union would then
submit a new proposal dealing with wages, compensa
tion productivity and hours Hoyt who previously
during the March 16 meeting and at one of the February
negotiation meetings had told Bullen that Respondent s
most favored nation proposal was a negotiable subject
responded to Bullen by stating she did not intend to
withdraw the most favored nation proposal until Bullen
explained to her what he proposed to offer the Respond
ent as a quid pro quo for dropping it Bullen refused to
reveal what the Union would propose if Hoyt committed
herself to withdrawing the most favored nation proposal
Hoyt responded by stating that Bullen should either
submit a new proposal right then and there or submit
Respondents last and final contract offer to the employ
ees for a vote Bullen answered we 11 do what we have
to do and on March 19, 1987, in effect informed Hoyt
that the Union did not intend to submit a new contract
proposal to the Respondent, but was in the process of
checking with its International Union to see whether it
70 See NLRB v Cambria Clay Products 215 F 2d 48 55 (6th Cir 1954)
(failure of mediator to schedule further negotiation meetings creates an
inference of impasse)
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could submit Respondents last and final contract offer to
the membership, even though the offer was a potential
ly injurious" collective bargaining contract In other
words, after advising Respondent that it intended to
search its soul to determine whether it should agree to
sacrifice any of the sacred cows contained in the 1984-
1986 agreement as the Respondent was proposing in its
last and final contract offer, the Union on March 16 re
sponded to Respondents last and final contract offer by
submitting a contract proposal which did not modify the
Union s prior bargaining position with respect to any of
the disputed items which the parties regarded as crucial
to the negotiations of an agreement This circumstance
when viewed in the light of what had occurred during
the previous negotiation meetings-after 11 negotiation
sessions there was still a wide gap separating the parties
on all the issues crucial to the negotiation of an agree
ment, there had been insignificant bargaining movement
by the parties on those issues prior to the March 16 bar
gaining session and the Union sincerely believed that
Respondents business was making a profit and that Re
spondent had absolutely no justification for any of its to
keaway proposals-was reasonably calculated to lead
Respondent to believe that negotiations were hopelessly
deadlocked
Lastly the length of the negotiations here is entirely
consistent with an impasse finding It is well settled that
parties to negotiations are not required to engage in
fruitless marathon discussions at the expense of frank
statement during negotiations (NLRB v American Na
tional Insurance Co 343 U S 395 404 (1952)), and that
there is no rigid formula for assessing how long the par
ties must negotiate before impasse occurs Teamsters
Local 745 v NLRB, 355 F 2d 842, 845 (D C Cir 1966)
Here the parties by the end of the March 16 bargaining
session had held 12 bargaining sessions They knew well
before the March 16 session which of the disputed eco
nomic issues had to be resolved in order for anew bar
gaining agreement to be successfully negotiated and by
the end of the March 16 session had discussed the essen
tial differences in their bargaining positions on numerous
occasions But there was simply no way to square the
Respondents insistence on wage and benefit takeaways
from the existing agreement with the Unions position
that no takeaways were justified because Respondent s
claims that it was losing money and not operating com
petitively under the terms of the 1984-1986 agreement
were not true Under these circumstances and consider
ing what occurred during the parties March 16 bargain
ing session the Respondent at the end of the March 16
session had every reason to reasonably believe that fur
ther negotiation meetings with the Union would not
break the parties deadlock
I have considered that during the April 2 1987 negoti
ating session which was called by the Federal mediator
that Respondent, as described in detail supra modified its
last and final contract offer in certain significant respects
and that the next day the Union also modified its bar
gaining position in certain significant respects 71 The
General Counsel urges that this conduct indicates there
was no bargaining impasse on March 20, 1987 when Re
spondent unilaterally implemented the terms of its last
and final contract offer I do not agree Huck Mfg Co v
NLRB, 693 F 2d 1176 (5th Cir 1982), and the other
cases cited by the General Counsel, involve situations
where the parties to the negotiations engaged in conduct
which indicated that further negotiations would be fruit
ful and engaged in this conduct before, as well as after
the employer s unilateral conduct Here, as I have found
supra, the record shows that when Respondent unilater
ally implemented the terms of its last and final contract
offer on March 20 1987, there was no realistic possibility
that continuation of discussion at that time would have
been fruitful In view of this circumstance it would be in
equitable for me to rely on the Respondents or the
Union's postimpasse conduct to find that no impasse oc
curred previously Moreover, to rely solely on postim
passe conduct to find that no impasse had occurred pre
viously would result in an unworkable rule of law be
cause it is normal during collective bargaining negotia
tions for an impasse to occur and subsequently to be
broken and then to recur and to be broken again , and for
negotiations to continue in this fashion See Bonanno
Linen Service v NLRB 454 U S 404, 412 (1982) (impasse
is a recurring feature in the bargaining process )
It is for the reasons set forth above, that I find an im
passe in contract negotiations had occurred when on
March 20, 1987 Respondent unilaterally changed the
terms and conditions of employment of its employees
represented by the Union by implementing the terms of
its last and final contract offer I further find that these
changes had been previously offered to the Union during
the bargaining which produced the impasse I find, there
fore that Respondent having taken the unilateral action
discussed above, did not thereby violate Section 8(a)(5)
and (1) of the Act Accordingly, I shall recommend dis
missal of the relevant complaint allegations
c The alleged unilateral conduct which postdated the
unilateral implementation of Respondents last and
final contract offer
The complaint as amended at the start of the hearing,
alleges that since approximately September 1 1987 and
continuing to date, Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally changing the terms and
conditions of employment of the employees represented
by the Union In support of this allegation the General
Counsel presented, as described in detail supra uncontro
verted evidence that Respondent during this time period
in several respects unilaterally changed the terms and
conditions of employment of the employees represented
by the Union as follows In late August 1987 stopped
paying employees an incentive bonus of $500 for selling
15 or more motor vehicles in late August 1987 stopped
notifying the Union of the names of the employees who
parties next met Respondent would substantially modify its last and final
There is no evidence that during the March 16 negotiating session contract offer or that the Union would also modify its bargaining post
that Respondent had any idea that subsequent to that session when the Lion
HAYWARD DODGE
quit or were discharged , 72 on September 1, 1987, in
creased employees commissions from 25 percent to 30
percent for selling 9 motor vehicles per month on Sep
tember 1 , 1987, notified employees that if they failed to
sell 9 or more motor vehicles in a month they were be
paid a 25 percent commission for each motor vehicle
sold the following month regardless of the number of ve
hicles sold during the second month , whereas previously
they were paid a 30 percent commission if they sold 10
or more motor vehicles during the second month on
September 1 1987, notified the employees that effective
that date they could be discharged for failing to sell 9 or
more motor vehicles for 2 months in a row whereas pre
viously employees could be discharged for failing to sell
8 or more motor vehicles in a single month on Septem
ber 1, 1987 in connection with the computation of em
ployees commissions for the sale of domestic motor ve
hicles, raised the pack from 2 percent to 3 percent and
eliminated the additional pack of $152 charged employ
ees for weather and interior guard get ready in Decem
ber 1987 or January 1988 began to regularly require em
ployees to work 12 hours a day on Tuesday and Thurs
day, whereas the employees previously were required to
work only 8 hours on those days
None of the above described unilateral changes in em
ployees terms and conditions of employment had ever
been proposed by the Respondent to the Union nor were
any of them reasonably comprehended within the terms
of Respondents preimpasse last and final contract offer
which was as I have found supra , lawfully implemented
on March 20, 1987 Under these circumstances by insti
tuting each of the above described unilateral changes in
the employees terms and conditions of employment, Re
spondent violated Section 8(a)(5) and ( 1) of the Act 73
CONCLUSIONS OF LAW
1 Hayward Dodge, Inc, the Respondent is an em
ployer engaged in commerce within the meaning of Sec
Lion 2(6) and (7) of the Act
2 Automobile Salesmen s Union Local 1095, United
Food and Commercial Workers AFL-CIO CLC, the
Union is a labor organization within the meaning of Sec
tion 2(5) of the Act
3 All full time and regular part time automobile sales
persons employed by the Respondent at its Hayward
California facility excluding all other employees, guards
and supervisors as defined in the Act constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act
72 As noted supra Respondent was obligated to furnish the Union with
this information under the terms of the 1984-1986 agreement and by Re
spondent s last and final contract proposal which it implemented on
March 20 1987 in place of the terms of the 1984-1986 agreement
7 'The General Counsels contention Respondent s abrogation of the
contractual union security clause constituted a violation of Sec 8(a)(5)
and (1) of the Act is without merit An employers duty to enforce a
union security provision is extinguished on the expiration of the contract
in which the union security provision was included See Bethlehem Steel
Co 136 NLRB 1500 1520 (1962) affd 320 F 2d 615 (3d Cir 1963)
Here as I have found supra the parties 1984 1986 agreement expired
prior to Respondent s abrogation of the agreement s union security provi
sion Accordingly Respondents noncompliance with the union security
provision was not unlawful
471
4 Since February 1, 1972, the above named Union has
been , and is now, the exclusive representative of all em
ployees in the aforesaid bargaining unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act
5 Respondent violated Section 8(a)(5) and (1) of the
Act when , without notifying or bargaining with the
Union , it unilaterally changed the bargaining unit em
ployees terms and conditions of employment as follows
In late August 1987 stopped paying employees an incen
tive bonus of $500 for selling 15 or more motor vehicles
per month , in late August 1987 stopped notifying the
Union of the names of the employees who quit or were
discharged , on September 1 1987 increased employees
commissions from 25 percent to 30 percent for selling 9
motor vehicles per month on September 1, 1987, notified
employees that if they did not sell 9 or more motor vehi
Iles a month, they would be paid a 25 percent commis
sion for each motor vehicle they sold the next month re
gardless of the number of vehicles they sold during the
second month, on September 1, 1987, in connection with
the computation of employees ' commissions for the sale
of domestic motor vehicles , raised the pack from 2 per
cent to 3 percent and eliminated the additional pack of
$152, in December 1987 or January 1988 began to regu
larly require employees to work 12 hours a day on Tues
days and Thursdays
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
7 The Respondent has not otherwise violated the Act
REMEDY
Having found Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing employees
wages, hours, and other terms and conditions of employ
ment I shall recommend that it cease and desist there
from and take certain affirmative action in order to effec
tuate the policies of the Act The remedy should be fash
ioned with a view toward restoring the status quo ante
which will prevent the Respondent from gaining advan
tage by its unfair labor practices and will place the in
,lured parties as nearly as possible in the same position as
if the law had been obeyed In this regard , I shall recom
mend that Respondent , among other things, on the re
quest of the Union revoke until such time as Respondent
negotiates with the Union in good faith to agreement or
impasse thereon all the unilateral changes that hereto
fore in this Decision have been found to have violated
the Act and to make the unit employees whole for any
financial loss they may have suffered by reason of the
aforesaid unilateral change, with interest as prescribed in
New Horizons for the Retarded 283 NLRB 1173 (1987)
However , nothing here shall be construed as requiring
the Respondent to revoke any increases in wages or
other benefits it has heretofore granted See Staters John
sonville Meats, 174 NLRB 693 (1969)
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed74
ORDER
The Respondent, Hayward. Dodge, Inc., Hayward,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with Automobile
Salesmen 's Union Local 1095, United Food and Com-
mercial Workers, AFL-CIO, CLC, as the representative
of the employees in the appropriate unit described
below, by unilaterally changing wages, hours, or other
terms and conditions of employment of the unit employ-
ees. The appropriate unit is as follows:
All full-time and regular part-time automobile sales-
persons employed by Respondent at its Hayward,
California facility, excluding all other employees,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On the request of the above-named Union, revoke
the unlawful unilateral changes in the employees' rates of
pay, wages, hours, and other terms and conditions of em-
ployment described in this decision, which were placed
into effect by Respondent in the appropriate unit, until
such time as Respondent negotiates with the Union in
good faith to agreement or to impasse.
(b) Make whole the employees in the appropriate unit
who have been employed during the time material for
any loss of pay or other benefits they may have incurred
as a result of Respondent's unlawful unilateral changes of
the rates of pay, wages, hours, and other terms and con-
ditions of employment, which were described in this de-
cision, with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), and continue such
payments until such time as Respondent negotiates in
good faith with the Union to agreement or to impasse.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its place of business copies of the attached
notice marked "Appendix."7:` Copies of said notice, on
74 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the finding,, conclusions , and recommended
Order shall, as provided in Sec. 102.4.8 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
75 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
forms provided by the Regional Director for Region 32,
after being signed by Respondent's authorized represent-
ative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint allegations
not specifically found are dismissed.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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.
WE WILL NOT refuse to bargain collectively with
Automobile Salesmen's Union Local 1095, United Food
and Commercial Workers, AFL-CIO, CLC as the repre-
sentative of the employees in the appropriate bargaining
unit described below, by unilaterally changing the
wages, hours, or other terms and conditions of employ-
ment of the unit employees. The appropriate bargaining
unit is, as follows:
All full-time and regular part-time automobile sales-
persons employed by us at our Hayward, California
facility, excluding all other employees, guards, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request by the above-named Union,
revoke the unlawful unilateral changes in the rates of
pay, wages, hours and other terms and conditions of em-
ployment which we have instituted in the appropriate
bargaining unit, until such time as we negotiate with the
Union in good faith to agreement or an impasse in nego-
tiations is reached.
WE WILL make whole the employees in the appropri-
ate bargaining unit for any loss of pay or other benefits
they may have suffered as a result of the aforesaid unilat-
eral changes, with interest, and continue such payments
until such time as we negotiate in good faith with the
Union to agreement or to an impasse.
HAYWARD DODGE, INC.