Honda of Hayward

National Labor Relations Board - Board Decisions

Apr 29, 1992

307 N.L.R.B. 340 (N.L.R.B. 1992)

340
307 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge concludes, and we agree, that the General Counsel es-
tablished a prima facie case that the Respondent’s failure to hire the
predecessor’s employees was motivated by an unlawful desire to
avoid becoming obligated to recognize and bargain with the Union.
The judge finds, and we agree, that with the exception of employee
James Fuller, the Respondent failed to meet its burden of dem-
onstrating that it would have not hired the employee applicants even
without the antiunion motives.
The judge made general findings that the service department em-
ployees were not scrutinized on merit and that the Respondent failed
to show that these employees would not have been hired in any
event. The judge, however, failed to specifically mention employee
applicant Herman Troche, the service writer, in his discussion of the
service department. The judge did find Herman Troche to be one of
the discriminatees.
Batarse interviewed Troche in March along with most of the other
employee applicants, and there is no testimony by Batarse as to why
Troche was not hired. Parker Luciano, the Respondent’s parts man-
ager, testified that he told Batarse that it was common knowledge
that Troche was planning to retire. There is, however, no evidence
that Batarse relied on Luciano’s comments. Under these cir-
cumstances we find, in agreement with the judge, that the Respond-
ent has failed to meet its burden to show that Troche would not have
been hired in any event.
Anthony Motor Company, Inc. d/b/a Honda of
Hayward and East Bay Automotive Council
and its affiliated Local Unions: Machinists
Automotive Trades District Lodge No. 190;
East Bay Automotive Machinists Lodge 1546
(affiliated with the International Association of
Machinists and Aerospace Workers, AFL–
CIO); Auto, Marine and Speciality Painters
Union, Local No. 1176, and Teamsters Auto-
motive Employees Union, Local No. 78, AFL–
CIO. Cases 32–CA–11174 and 32–CA–11395
April 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 24, 1991, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent and the General Counsel filed exceptions,
supporting briefs, and answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
1. We agree with the judge, for the following rea-
sons, that the Respondent violated Section 8(a)(5) of
the Act by unilaterally setting initial terms and condi-
tions of employment without prior notice or consulta-
tion with the Union. A successor employer is free to
set unilaterally the initial terms and conditions of em-
ployment unless it is ‘‘perfectly clear’’ that the new
employer plans to retain all of the precedessor’s unit
employees. NLRB v. Burns Security Services, 406 U.S.
272 (1972). We adopt the judge’s finding that but for
the Respondent’s unlawful conduct it would have hired
virtually all the predecessor’s unit employees. Fremont
Ford, 289 NLRB 1290 (1988). The Respondent’s fail-
ure to hire the predecessor’s employees resulted from
its intention to avoid a bargaining obligation with the
Union. Further to the extent that there is uncertainty
with respect to what Respondent would have done ab-
sent its unlawful purpose, such uncertainty must be re-
solved against the Respondent, since it cannot be per-
mitted to benefit from its unlawful conduct. Love’s
Barbeque Restaurant No. 62, 245 NLRB 78 (1979).
Under these circumstances, we find that the Respond-
ent was precluded from setting initial terms and condi-
tions of employment without prior consultation and
bargaining with the Union.
2. Respondent, in its exceptions to the 8(a)(5) con-
clusions, asserts that the employee-applicants cannot
now be considered to constitute part of Respondent’s
work force since the parties had stipulated during the
10(j) proceeding before the district court that the em-
ployees had declined offers of reinstatement, thereby
waiving their reinstatement rights. We find no merit in
this contention.
On October 12, 1990, pursuant to the court order,
the Respondent sent the employee-applicants a letter
offering reinstatement. The letter stated that the offer
was made pursuant to the court order. The letter fur-
ther stated that, since the order was being appealed, the
order could be ultimately dissolved. The letter also
said that, if Respondent was successful at the NLRB
hearings, the employer would not be required to retain
them as employees.
Respondent’s offer does not constitute an uncondi-
tional offer of reinstatement. Even assuming arguendo
that Respondent could lawfully inform employees that
they were subject to discharge in the event that it ulti-
mately prevailed before the Board, the Respondent
here went further. It informed the employees that they
were subject to discharge if the 10(j) order were re-
vised. Of course, the results of 10(j) litigation do not
dictate the final adjudication of the case before the
Board. In these circumstances, we believe that Re-
spondent was not privileged to insert that condition
into its offer.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Anthony Motor Company,
341HONDA OF HAYWARD
1 Where not otherwise noted, these findings herein are based on
the pleadings, the stipulations of counsel, or unchallenged credible
evidence.
2 There is no dispute and I find that the unit described below is
an appropriate unit for purposes of collective bargaining within the
meaning of Sec. 9 of the Act with respect to both House of Honda
and Respondent.
Inc. d/b/a Honda of Hayward, Hayward, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Sharon Chabon, Esq., for the General Counsel.
Patrick W. Jordan, Esq. (Keck, Mahin & Cate), of San Fran-
cisco, California, for Respondent.
Burton F. Boltuch, Esq. (Boxer, Elkind & Gerson), of Oak-
land, California, and David A. Rosenfeld, Esq. (Van Bourg,
Weinberg, Roger & Rosenfeld), of San Francisco, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on January 16 and 17 and February
11, 12, and 13, 1991, in Oakland, California. Posthearing
briefs were received from all parties on April 8, 1991. The
matter arose as follows.
On June 5, 1990, the East Bay Automotive Council and
its affiliated Local Unions: Machinists Automotive Trades
District Lodge No. 190; East Bay Automotive Local 1546;
Auto, Marine and Speciality Painters Union, Local No. 1176;
and Teamsters Automotive Employees Union, Local No. 78
(the Union) filed a charge against Anthony Motor Company,
Inc., d/b/a Honda of Hayward (Respondent) with Region 32
of the National Labor Relations Board docketed as Case 32–
CA–11174. On July 17, 1990, the Regional Director for Re-
gion 32 issued a complaint and notice of hearing respecting
that charge. Thereafter the Regional Director issued a correc-
tion to complaint on July 20, 1990, and an amendment to
complaint on August 3, 1990. The Union filed a second
charge against Respondent docketed as Case 32–CA–11395
on September 12, 1990. On October 22, 1990, the Regional
Director issued a complaint and notice of hearing with re-
spect to the latter charge and amended that complaint on Oc-
tober 30, 1990. The Regional Director issued an order con-
solidating cases on October 23, 1990, and a consolidated
amended complaint on November 2, 1990.
The consolidated cases opened for hearing on November
13, 1990, before Administrative Law Judge Richard J. Boyce
who received the formal papers and, pursuant to motion, ad-
journed the hearing to January 16, 1991. On January 7, 1991,
Deputy Chief Administrative Law Judge Earldean V.S. Rob-
bins issued an order transferring the proceedings to me. That
order was not appealed by any party. Thereafter the hearing
proceeded on January 16, 1991, in essence de novo before
me without objection from any party.
The complaint, as amended, alleges in essence that Re-
spondent acquired a Hayward, California new and used car
dealership and selectively hired a limited portion of the pred-
ecessor auto dealership’s parts and service employees in
order to avoid becoming obligated to recognize and bargain
with the predecessor’s parts and service employees’ rep-
resentative for purposes of collective bargaining—the Union.
The General Counsel contends that this selection process re-
sulted in the failure to hire certain of the predecessor’s parts
and service employees in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act (the Act). The complaint
further alleges that Respondent is a successor to the prede-
cessor and was obligated to recognize and bargain with the
Union as the exclusive representative of Respondent’s parts
and service employees. Respondent’s failure and refusal to
do so, as well as Respondent’s establishment of initial terms
and conditions of unit employees’ employment and the
changing of those conditions without bargaining with the
Union, the complaint alleges, violates Section 8(a)(5) and (1)
of the Act. Finally, the complaint alleges various acts by Re-
spondent’s agents violative of Section 8(a)(1) of the Act. Re-
spondent’s answer denies the commission of the alleged un-
fair labor practices.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, to examine
and to cross-examine witnesses, to argue orally, and to file
posthearing briefs.
Upon the entire record including helpful briefs from all
parties, and from my observation of the witnesses and their
demeanor, I make the following1
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California
corporation with an office and place of business in Hayward,
California, where it has been engaged in the retail sale and
servicing of automobiles. Respondents as part of its business
operations-annually enjoys revenues in excess of $500,000
and annually purchases and receives goods or services from
outside the State of California of a value in excess of $5000.
Respondent is therefore an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The former dealership
Jim Close Motors d/b/a House of Honda operated as a new
automobile dealership selling and servicing Honda brand ve-
hicles as well as used cars in Hayward, California, on real
property owned by Close. The Union at relevant times to the
cessation of the House of Honda’s service operations rep-
resented the House of Honda employees in the following bar-
gaining unit (unit):2
All full-time and regular part-time employees employed
in the Parts and Service Departments in the job classi-
fications set forth in Article XVII of the ‘‘Addendum
Between the Greater East Bay New Car Dealers Asso-
ciation For And On Behalf of Southern Alameda Coun-
ty Dealers Association and East Bay Automotive Coun-
cil,’’ effective July 1, 1989 through June 30, 1993; ex-
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The contracts did not provide for a ‘‘flat rate system’’ as de-
scribed more fully, infra.
cluding all other employees, guards, and supervisors as
defined in the Act, as amended.
House of Honda’s general manager was Steve Saint, its
service department manager was Don Sipple, and its parts
department manager was Parker Luciano. Luciano was in the
House of Honda bargaining unit. The following 13 employ-
ees were also in the House of Honda unit at the time of clo-
sure. Their department or function follows after their names:
Adrien Abbadie Parts
Charles Bailey Service
Vince Brown Service
Clarence (Lance) Cabral Parts
Dennis Clark Detailer
James Fuller Detailer/Parts
Harlow Hill Service
Peter Staat Service
Ted Staat Service
Troy Staat Service
Edward Tallman Parts
Nathaniel Taylor Detailer
Herman Troche Service
As will be described in greater detail, infra, House of Honda
discontinued operations on February 27, 1990, and all unit
employees were terminated as of that date.
2. Respondent’s commencement of operations
Rudy Batarse’s family has long been successful in the op-
eration of automobile dealerships in the San Francisco Bay
Area. Batarse has also been involved in the industry for over
15 years and has extensive experience with the sale and serv-
icing of Honda brand motor cars. Batarse entered into nego-
tiations with Jim Close regarding possible acquisition of the
House of Honda dealership in 1989. By February 1990 sale
terms were agreed upon. On March 2, 1990, Batarse, through
the corporation, Respondent herein, purchased the assets of
House of Honda, leased the underlying real estate and pre-
pared to commence operations doing business under the
name Honda of Hayward.
In anticipation of commencement of Respondent’s oper-
ations, Batarse hired Steve Saint as Respondent’s sales man-
ager and Parker Luciano as its parts department manager.
Each was an admitted supervisor of Respondent as defined
in Section 2(11) of the Act. Luciano was therefore not part
of Respondent’s bargaining unit.
In February 1990, Batarse advertised for unit applicants in
local newspapers and arranged to interview House of Honda
unit employees. Most initial interviews with House of Honda
unit employees were conducted by Batarse on March 2 and
the days following. Of the 13 House of Honda unit employ-
ees listed above, Respondent hired three: Vince Brown who
started on March 12, Clarence (Lance) Cabral who started on
March 5, and Dennis Clark who started on March 15. Re-
spondent also interviewed non-House of Honda applicants
for employment in March. The following individuals were
hired from among those applicants in March. Their depart-
ments and dates of first employment follow their names:
Kent Frasier, Parts—March 14
Alex Hernandez, Parts—March 15
Bernd Koegler, Service—March 12
Dan Martin, Service—March 12
Paul Moore, Parts—March 12
John Rowley, Service—March 12
Richard Rigdon, Service—March 26
Steve Vaughn, Service—March 12
On April 4, 1990, Respondent hired new unit employee John
Crawford as a detailer and on May 7, 1990, hired new unit
employee Moises Villamar as a lot attendant.
Respondent set its own initial terms and conditions of em-
ployment for unit employees and did not follow the provi-
sions of the collective-bargaining agreement between the
Union and the House of Honda covering House of Honda
unit employees.
3. Respondent’s contacts with the Union
Bernie Tolentino at relevant times was the business rep-
resentative for Local 1546 of the International Association of
Machinists, a constituent member of the Union. His duties
and responsibilities included representing the Union in deal-
ings with House of Honda and Lloyd Wise—a dealership op-
erated by Rudy Batarse’s father and one in which Rudy
Batarse held a responsible position. Tolentino testified that
he learned of the possible sale of House of Honda in Novem-
ber 1989 and on various occasions attempted to discuss the
matter with Rudy Batarse. In late November Tolentino came
upon Rudy Batarse in a restaurant and was briefly told by
Batarse that the sale had not yet been concluded but that
Tolentino should not worry. Batarse continued, ‘‘we’ve al-
ways had a good relationship. We need good help and we’re
not going to have any problems with the union.’’ Rudy
Batarse testified that the restaurant meeting occurred in Janu-
ary 1990. Batarse’s version of this conversation did not in-
clude his giving the quoted assurances to Tolentino.
On December 21, 1989, Tolentino met with Rudy Batarse
at Lloyd Wise and delivered two area or standard contracts
to him. Again, in Tolentino’s memory, Batarse told him that
though the sale was not final there would be ‘‘no problems
with the Union.’’ Batarse had no recollection of receiving the
contracts at this particular time or assuring Tolentino there
would be ‘‘no problems.’’ Tolentino testified he tried unsuc-
cessfully to meet with Batarse in January both by phone and
in a visit to the dealership. Rudy Batarse testified that
Tolentino telephoned him in early March just after he had
opened the facility and that he told Tolentino he was so busy
he did not have time to sit down with him.
Tolentino met Rudy Batarse’s father, Anthony Batarse, at
a social event on May 9, 1990. Tolentino complained that he
was having difficulty speaking to or meeting with Rudy
Batarse. Anthony Batarse suggested that Rudy Batarse was
desirous of an incentive plan for service employees.
Tolentino told Anthony Batarse that the Union had contracts
with incentive plans and told him he would get copies of
such contracts to Rudy Batarse. The next day Tolentino hand
delivered two such contracts to Rudy Batarse’s secretary at
Lloyd Wise Honda for his consideration.3 Rudy Batarse ac-
knowledged that he had received such contracts but did not
343HONDA OF HAYWARD
4 All dates refer to 1990 unless otherwise indicated.
5 A ‘‘flat rate’’ system is a system of employee compensation
based on specific time allotments and concomitant dollar payments
for particular tasks accomplished. Thus a mechanic would be cred-
ited with a specific amount of time worked upon completing a par-
ticular task, for example replacing a part, irrespective of the actual
amount of time taken. To the extent that a employee on average took
less time to accomplish assigned tasks than the time credited to him
or her, the employee received enhanced compensation when com-
pared to a straight wage system based on actual time worked. In
turn, an employee who on average failed to complete tasks in the
allotted times would receive less compensation than under a straight
time system.
The straight time system was used as a base for estimating per-
formance under a flat rate system. Thus if a mechanic expected to
receive credit under a flat rate system for 125 percent of the hours
he or she actually worked, the worker stated he or she could do
‘‘125%’’ under flat rate.
6 House of Honda’s contract with the Union covering unit employ-
ees established traditional wage rates. Although the record is not uni-
formly clear on the issue, it appears that House of Honda employees
believed the Union was opposed to flat rate conditions and that a
flat rate shop was tantamount to a nonunion shop.
recall when or under what circumstances they had been re-
ceived.
Tolentino and Rudy Batarse spoke by telephone soon
thereafter. Each testified the other initiated the call. Tolentino
sought recognition of the Union as representative of the unit
employees and asked Batarse to sign a contract. Rudy
Batarse declined to do so, suggesting the employees could
make their own decision in a Government-conducted elec-
tion. Respondent filed a representation petition seeking an
election on May 16. The charges here followed.
4. Postinitial complaint events
After the initial complaint issued Respondent utilized the
services of a private investigation firm. Its agent, James
Campbell, and a retained management consultant, John Guay,
each admitted agents of Respondent, contacted various poten-
tial witnesses respecting events.
In September 1990, the General Counsel obtained an in-
junction in the United States District Court for the Northern
District of California under Section 10(j) of the Act directing
Respondent, inter alia, to offer House of Honda job appli-
cants employment, to apply the House of Honda collective-
bargaining agreement terms and conditions of employment
and to recognize and bargain with the Union. The General
Counsel and Respondent subsequently stipulated to a modi-
fied order sought by Respondent in the court action allowing
Respondent to cease bargaining with the Union and to rein-
state the terms and conditions of employment it had initiated
in March.
B. Specific Complaint Allegations
The consolidated amended complaint alleges various acts
and conduct violative of Section 8(a)(1) of the Act. Basically
the conduct alleged breaks into two gross categories: conduct
arising in the job applicant interviews and startup process
and conduct occurring in the postcomplaint contacts with po-
tential witnesses. The complaint allegations of Section
8(a)(3) and (5) of the Act deal with Respondent’s hiring
process, the legal consequences of that process, and Re-
spondent’s conduct and obligations thereafter.
The 8(a)(1) and (3) allegations in this case turn primarily
on questions of fact—particularly the resolution of con-
flicting versions of events and an evaluation of probabilities
and demeanor. To render the resolution of the issues as intel-
ligible as possible, it seems appropriate to present at least
generally the conflicting testimony respecting specific allega-
tions of the complaint, then to turn to the specific arguments
of the parties and, finally, to analyze the matters in dispute,
resolve factual conflicts and reach conclusions respecting the
specific allegations of the complaint.
1. Allegations of independent violations of Section
8(a)(1) of the Act
Paragraphs 7 and 8 of the complaint allege independent
violations of Section 8(a)(1) of the Act. The General Counsel
on brief pages 29–32 identifies the specific testimony offered
to support these paragraphs. The relevant testimony is sum-
marized below.
a. Against Rudy Batarse
(1) Complaint paragraph 7(a)(i)—On March 3, 1990,
interrogated applicants about their willingness to work
for a nonunion shop
Edward Tallman, an employee of House of Honda in the
parts department, submitted an application to Respondent
along with other House of Honda employees and was sched-
uled for an interview with Batarse. Batarse and Tallman met
alone on March 3.4 Tallman testified that during the inter-
view process, Batarse discussed with him the operation of
the shop on a flat rate basis.5 Tallman told Batarse that he
had experience under a flat rate shop. Tallman testified that
Batarse then asked him how he felt about a nonunion shop.
Tallman answered that a nonunion shop ‘‘can be fine’’ and
that ‘‘if it was a matter of going nonunion, that was fine, I
was all for it, because if it was a matter of keeping a job,
I was all for it.’’ Batarse denied asking Tallman about work-
ing in a nonunion shop.
Nathaniel Taylor had been many years with the House of
Honda. He filled out an application for Respondent and was
interviewed by Batarse on March 3. The two met alone. Dur-
ing the interview, in Taylor’s recollection, Batarse asked him
how he felt about working in a flat rate shop. Taylor indi-
cated he was not familiar with such a system. Batarse ex-
plained and Taylor asked questions about how such a system
would apply to his position as an auto detailer. Taylor testi-
fied he asked Batarse what he thought the Union was going
to do about the flat rate in a union shop.6 Taylor testified
that Batarse ‘‘asked me how I would feel about working in
a nonunion shop.’’ Taylor answered that he preferred union
shops because of the value of someone ‘‘to stand behind
them’’ if the company had it in for a particular employee.
Batarse denied asking Taylor about his view of working in
a nonunion shop.
Ted Staat was a 30-year employee with House of Honda.
He interviewed with Batarse on March 2. Ted Staat de-
scribed the interview as follows:
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[Batarse] just asked me what I did and how long I’d
been with the company, what my position was there.
He said he was deciding whether or not we were going
to go flat rate or union. He was deciding. He asked me
if it made any difference to me whether it was a union
shop or nonunion, or whether flat rate was important—
I mean, whether flat rate would matter to me. I said if
I was going to get a preference, I would rather it was
a union shop.
Then he asked me what I thought of a flat rate shop,
and I told him I had never really worked in one, so I
don’t know exactly what it would be like, because I’d
always worked in a union shop, and I’d worked for the
same place for 30 years, so that was what I was famil-
iar with.
Batarse denied ever asking Ted Staat whether it made any
difference if the shop was union or nonunion or stating he
was deciding whether to go union or flat rate.
(2) Complaint paragraph 7(a)(ii)—On March 3, 1990,
told an employee-applicant that Respondent felt
strongly about ‘‘going nonunion’’
Tallman’s testimony concerning the beginning of his inter-
view with Batarse on March 3 is described above. Imme-
diately after that portion of their interview, Batarse, in
Tallman’s recollection, said he ‘‘felt strongly about going
nonunion.’’ Batarse denied the remark attributed to him.
(3) Complaint paragraph 7(b)(i)—In early March 1990
told an employee-applicant that Respondent was going
nonunion
Peter Staat, nephew of Ted Staat and cousin of Troy Staat,
had several meetings with Batarse and other agents of Re-
spondent. Peter Staat described his fourth conversation with
Batarse as occurring alone in Batarse’s office. He testified:
The first thing [Batarse] said to me is that, ‘‘We are
going to be opening a nonunion shop, and if the union
were to come in, how would I vote, for him or for the
union[?] I told him I would vote for him, for the flat
rate.’’
And he told me that he needed to feel that he could
trust me, and that his lawyers were telling him not to
hire any more union people, because if he hired more
than 50 percent of the old workers back, that it would
basically become a union shop. And he told me he
wanted to feel like he could trust me, and he did want
to hire me, but—I told him I had quite the union at that
time, and he just said that was good, and that was basi-
cally it. He said he’d contact me again. He said he
wanted to hire me, so just to keep in touch.
Batarse denied the remarks attributed to him.
(4) Complaint paragraph 7(b)(ii)—in early March 1990
interrogated an employee-applicant about how he would
vote if the Union came in
The General Counsel’s evidence offered in support of this
allegation is the testimony of Peter Staat quoted immediately
above.
(5) Complaint paragraph 7(b)(iii)—in early March 1990
told an employee-applicant that Respondent had been
advised not to hire a majority of ‘‘union people’’
because Respondent would become ‘‘union’’
The General Counsel’s evidence offered in support of this
allegation is the testimony of Peter Staat quoted above.
(6) Complaint paragraph 7(b)(iv)—in early March 1990
told an employee-applicant that Respondent could trust
him because he had ‘‘quit the Union’’
The General Counsel’s evidence offered in support of this
allegation is the testimony of Peter Staat quoted above.
b. Against Steve Saint
(1) Complaint paragraph 7(c)(i)—In early March 1990
told an employee-applicant that Respondent was not
going to let the Union in
Peter Staat initially interviewed with Batarse on March 2
and a second time on March 5. A few days later Peter Staat
stopped by the dealership to speak to Batarse who was not
initially available. Peter Staat then had a conversation with
Steve Saint. Peter Staat testified that he asked Saint ‘‘what
was happening about hiring us back.’’ Staat recalled Saint
told him that Batarse did not want the ‘‘union into his com-
pany’’ and
suggested that if I wanted to get hired back, that I
should quit the union, and I told him I would.
Saint denied the allegations.
(2) Complaint paragraph 7(c)(ii)—In early March 1990
told an employee-applicant that he must ‘‘quit’’ the
Union as a condition of being hired
The General Counsel’s evidence offered in support of this
allegation is the testimony of Peter Staat quoted immediately
above.
(3) Complaint paragraph 7(c)(iii)—In early March 1990
told an employee-applicant that if it hired more than 50
percent of the former employees it would have to deal
with the Union
Ted Staat was eventually scheduled for a second interview
with Batarse on March 14. Upon Staat’s arrival at the dealer-
ship for his interview, he discovered Batarse was busy so he
spoke initially with Steve Saint. Staat inquired of Saint about
who was going to be hired and what was going to happen.
Staat described Saint’s reply:
And [Saint] said that they decided they were going
to go with flat rate, and that as far as he knew—he
wasn’t real positive—as far as he knew Harlow [Hill]
and Charlie [Bailey] would not be hired. He felt pos-
sibly I would be hired, and he had heard that Vince
Brown and Pete Staat would be hired, but that Troy
[Staat] wouldn’t be hired because they had to keep the
numbers down. Since it was going to be a flat rate
shop, it would be nonunion, and if they hired too many
of the people back, they would have to deal with the
union, so he wouldn’t get hired because of—the num-
345HONDA OF HAYWARD
ber would be too great, because, like I said, they were
going to go nonunion with a flat rate shop.
And he also said that at one point he was attempting
to buy the dealership, and had he been able to close the
deal, that he would have done the same thing that Rudy
[Batarse] was doing and go nonunion, simply because
every time you had to deal with the union, it was just
too much trouble. If you had people you didn’t want
to keep for some reason, or they didn’t perform the
way you wanted them to, it was just too hard to get rid
of them if you had the union. So he would have done
the same thing Rudy would have done and go with a
nonunion situation.
Saint denied making these statements to Ted Staat.
(4) Complaint paragraph 7(c)(iv)—In early March 1990
told an employee-applicant Respondent could not hire
too many union people and had to keep the number
below 50 percent
The General Counsel offered the testimony of Ted Staat
immediately above in support of this allegation.
(5) Complaint paragraph 7(d)—In the latter part of
March or early April 1990, told employee-applicants
that Respondent would not hire former Jim Close
Honda employees because of the Union
Not having been hired, Ed Tallman visited the dealership
in late March or early April and spoke to Steve Saint in his
office. He described the conversation as follows:
I told [Saint] that—I said, the parts department, they
look pretty busy, and I asked him what happened to the
other guys who used to work there, and he said that
they couldn’t hire them back because there was some
kind of a union thing, and he said it had something to
do with the percentage of people that they could or
could not hire back. And I said, well, it was too bad,
because, you know, they were good guys, they’re good
workers.
Saint denied the remarks attributed to him.
c. Against Parker Luciano
(1) Complaint paragraph 7(e)—In early March 1990
interrogated an employee-applicant about whether he
had ‘‘quit’’ the Union
Peter Staat, following his interview with Batarse described
above, testified that ‘‘on the way out’’ he stopped and talked
to Parker Luciano and Lance Cabral. Staat testified:
I asked Parker [Luciano] what was Rudy [Batarse’s]
hang-up about the union, why was he letting it bother
him for not hiring us, and he asked me if I’d quit the
union. And I told him yes, I did. He said Rudy wasn’t
going to let the union into his company, he did not
want them into his company. And I also spoke with
Lance [Cabral], and Lance told me that Rudy did not
want to hire people that were not loyal to him.
Parker Luciano denied the remarks attributed to him. Lance
Cabral testified that the conversation occurred but without
reference to the Union.
(2) Complaint paragraph 8(c)—On or about August 29,
1990, coercively interrogated a former employee
concerning his participation in the investigation of Case
32–CA–11174 involving Respondent
Tallman received a telephone call from Parker on August
29. Tallman recalled that Parker told him he did not have to
talk to him. Tallman did not recall, however, receiving assur-
ances that no reprisals would be taken against him if he
chose not to do so. Parker raised with Tallman a statement
Tallman had made to Lance Cabral earlier that if necessary
Tallman would lie in court for Parker. Parker assured
Tallman he did not want him to ‘‘do anything to hurt your-
self . . . or to get in trouble.’’ Parker testified similarly.
d. Against James Campbell
(1) Complaint paragraph 8(a)(1)—In June or July 1990
coercively interrogated former employees of
Respondent concerning each’s participation in the
investigation of Case 32–CA–11174
Tallman testified that in the last week of June he received
a telephone call from James Campbell, a private investigator
retained by Respondent. Campbell, in Tallman’s memory,
identified himself as a private investigator but indicated he
was ‘‘not really working for nobody, I’m just taking the in-
formation and getting my own—on my own ideas.’’ Tallman
recalled that Campbell asked about Tallman’s interview with
Batarse and what was said in their meeting. Tallman specifi-
cally denied that Campbell made any statements respecting
Tallman’s right not to speak to the investigator nor gave
Tallman any assurances that no reprisals would be taken
against Tallman if he chose not to discuss the matter with
Campbell. Campbell did not testify.
Ted Staat testified that Campbell telephoned him in June
and told him that he did not have to speak to him if he did
not wish to. Campbell did not however give assurances to
Staat against reprisals. Campbell asked about Staat’s contacts
with Respondent’s agents. Ted Staat stated that since he now
worked for Rudy Batarse’s father at a different auto dealer-
ship he did not want to go into great detail. Campbell called
again in August with similar questions, but on this occasion
did not tell Staat that he need not speak to him nor did he
tell Staat that no reprisals would be taken against him.
(2) Complaint paragraph 8(a)(2)—On or about July 11,
1990, coercively interrogated an applicant for
employment concerning his union activities
The General Counsel offered the testimony of Tallman and
Ted Staat described immediately above.
(3) Complaint paragraph 8(a)(3)—On or about August
28, 1990, coercively interrogated a job applicant
concerning said employee’s participation in the
investigation of Case 32–CA–11174
involving Respondent
Peter Staat testified that on August 28 Campbell called
him and asked him if he had given an affidavit in the Board
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 These numbers disregard Luciano who was hired into the super-
visory and therefore nonunit position of parts manager. They include
Abbadie who was later offered a part-time job by Respondent, but
declined the offer.
investigation. Staat testified Campbell did not tell him he had
no obligation to talk to Campbell nor did Staat receive any
assurances that no reprisals would be taken against him if he
chose not to talk.
Joel Ramsey, an unsuccessful applicant for employment
who interviewed with Saint in March, testified he received
a telephone call from Campbell in August. Campbell did not
tell Ramsey that Ramsey was under no obligation to speak
to him nor did he give Ramsey assurances that no reprisals
would be taken against him. Rather Campbell asked Ramsey
about his conversations with Respondent’s agents.
(4) Complaint paragraph 8(a)(4)—On or about
September 4, 1990, coercively interrogated a job
applicant about his participation in an NLRB
investigation and his union sympathies, and warned that
his refusals to respond to the interrogation would be
reported back to management
Troy Staat testified that on September 4 he received a tele-
phone call from James Campbell at his home. Troy Staat tes-
tified that Campbell identified himself as representing Rudy
Batarse and wanted to know about what Staat had told the
‘‘Labor Board.’’ Staat declined to answer. After further prod-
ding proved unsuccessful, Campbell stated in Staat’s recol-
lection:
Well, okay, you don’t have to talk to me if you don’t
want to, but I’ll have to go back and report to my peo-
ple that you refused to say anything.
In Staat’s recollection Campbell neither told him that he did
not have to speak to Campbell nor gave him assurances that
no reprisals would be taken against him if he chose not to
discuss the matter.
(5) Complaint paragraph 8(a)(5)—On or about
September 13, 1990, coercively interrogated a former
employee of Respondent concerning his union
sympathies
Troy Staat testified that he received a telephone call from
Campbell about a week after his September 4 conversation.
Campbell asked Staat if he wanted his former job back. His
second question was in Staat’s recollection: ‘‘If you got your
job back, would it have to be union?’’ Campbell did not
make any statement about Staat’s right not to speak to him
nor did he assure Staat that no reprisals would be taken
against him if he chose not to respond.
e. Against John Guay
(1) Complaint paragraph 8(b)(1)—In or about June
1990 coercively interrogated a former employee
concerning his participation in the investigation of Case
32–CA–11174 involving Respondent
See the testimony of Tallman immediately below.
(2) Complaint paragraph 8(b)(2)—On or about August
29, 1990, coercively interrogated former employee
concerning his participation in the investigation of Case
32–CA–11174 involving Respondent
Soon after Tallman’s August telephone conversation with
Luciano, set forth above, Respondent’s retained private in-
vestigator John Guay telephoned Tallman. Guay told
Tallman, in Tallman’s recollection, that he wanted to talk to
him but that Tallman did not have to ‘‘talk to me if you
don’t want to.’’ Tallman specifically denied that Guay made
any assurances whatsoever that no reprisals would be taken
against Tallman if he elected not to speak to Guay. A meet-
ing was arranged for the next week. On the scheduled day
Guay telephoned Tallman to confirm the appointment but
Tallman canceled and declined to set another date. A few
days later Guay called again seeking a meeting but Tallman
put him off. Guay did not testify.
2. Allegations of violations of Section 8(a)(3) and (1)
of the Act
As noted supra, Respondent hired 3 of the 13 unit mem-
bers of House of Honda who sought employment, declining
to hire the other 10.7 These 10 are alleged by the General
Counsel in paragraph 9 of the complaint to have been re-
fused employment by Respondent in order to avoid becom-
ing obligated to recognize and bargain with the Union in vio-
lation of Section 8(a)(3) and (1) of the Act. They are:
Adrien Abbadie Ted Staat
Charles Bailey Troy Staat
James Fuller Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
There is no dispute that these 10 sought but did not obtain
full-time unit employment from Respondent. The parties liti-
gated closely the motivations and conduct of Respondent’s
agents, the skills and experience of the job seekers both from
the House of Honda and otherwise and the probability and
credibility issues underlying conflicting versions of events.
The hiring issues, which incorporate the factual disputes un-
derlying the independent allegations of violations of Section
8(a)(1) of the Act, are the heart of the instant case.
3. The allegations of violations of Section 8(a)(5) and
(1) of the Act
There is no dispute that the Union sought recognition and
bargaining of Respondent or that Respondent declined to rec-
ognize or bargain with the Union as the representative of unit
employees at least prior to the court order noted, supra. Fur-
ther, there is no dispute that Respondent’s initial terms and
conditions of employment for unit employees were different
from the contract terms in effect for unit employees at House
of Honda prior to its closure. Finally, there is no doubt,
again at least prior to the court order, that Respondent, con-
sistent with its refusal to recognize the Union as the rep-
resentative of unit employees, failed and refused to bargain
347HONDA OF HAYWARD
with the Union respecting terms and conditions of unit em-
ployees’ employment and failed to notify the Union of or
provide it an opportunity to bargain respecting subsequent
changes in employees’ working conditions.
The General Counsel contends that Respondent was obli-
gated to recognize and bargain with the Union from the very
start of its operations specifically including an obligation to
bargain about setting of initial terms and conditions of em-
ployment. This position is predicated on the assumption that
the General Counsel’s allegations of violations of Section
8(a)(3) and (1) of the Act are sustained to a sufficient degree
so that it will have been found that Respondent should have
hired a majority of its unit employees from among the prede-
cessor’s unit employees and that, consequently. a
successorship bargaining obligation was incurred. Accord-
ingly, the General Counsel contends that each of Respond-
ent’s refusals as set forth immediately above was in deroga-
tion of its obligations to recognize and bargain with the
Union and therefore, in each instance, Respondent violated
Section 8(a)(5) and (1) of the Act.
These issues involved primarily applications of undisputed
facts and fundamental legal doctrines to the hiring decisions
of Respondent under attack by the General Counsel. Thus the
dispute is in large degree dependent on and resolved by the
final determination on the merits of the 8(a)(3) allegations of
the complaint.
C. Argument of the Parties
1. The 8(a)(1) and (3) allegations
The General Counsel adduced evidence from House of
Honda employees and job applicants, noted in part, supra,
that Respondent’s agents were concerned with the union
sympathies of at least some House of Honda job applicants
and were further concerned with hiring less than a majority
of House of Honda employees so as to avoid incurring a bar-
gaining obligation. The General Counsel augmented that evi-
dence with testimony from Union Official Tolentino and oth-
ers designed to show that Rudy Batarse from the outset had
no intention of recognizing and bargaining with the Union
and that he and his agents wrongfully refused to hire 10
House of Honda employee-applicants in furtherance of an il-
legal scheme to avoid union representation of employees.
The Charging Party in particular attacked the credibility of
Respondent’s agents Batarse and Saint on brief.
Respondent primarily through the testimony of Respond-
ent’s agents and job applicants sought to demonstrate the al-
legations against Respondent were neither credible nor plau-
sible. Rather, Respondent argues, Batarse in determining to
acquire the House of Honda enterprise realized that a suc-
cessful purchase and operation of the dealership required the
operation of the parts and service departments on a flat rate
as opposed to an actual time or hourly rate compensation
system. Based on this determination, Batarse, with Luciano’s
assistance, hired employees who would in his judgment per-
form best in that environment.
The factual contentions of the parties were closely liti-
gated. The bulk of the participants who participated in the
disputed events as well as House of Honda applicants and
Respondent’s unit employees testified. Cross-examination
was rigorous and lengthy. Perhaps because of the court liti-
gation that had occurred before the matter came to hearing,
there were an unusual number of prior statements, declara-
tions, and affidavits by the witnesses. These were used by
counsel to identify and probe inconsistencies in witnesses’
recitations of events. Posthearing briefs were unusually thor-
ough and effective in attacking the credibility of the oppos-
ing witnesses, buttressing supporting witness, and in ana-
lyzing the various probabilities of events. Greater detail is
presented in my resolution of credibility, infra. The factual
aspects of the case were ably and vigorously disputed.
The legal issues of this portion of the case were not in
substantial dispute save as to the postcomplaint interrogation
allegations associated with Respondent’s investigation prior
to litigation. This portion of the complaint in turn did not in-
volve significant factual disputes inasmuch as Respondent’s
agents Campbell and Guay did not testify. The relevant legal
arguments advanced are discussed, infra.
2. The 8(a)(5) allegations
The successorship issue underlying the bargaining obliga-
tion urged by the General Counsel was narrowly presented.
There was no dispute about any aspect of the relationship be-
tween the House of Honda and Respondent save for the
number of unit employees of House of Honda who should
have been hired as unit employees of Respondent. Respond-
ent did not at any relevant time have an actual majority of
unit employees from the House of Honda. If the 10 individ-
uals alleged as discriminatees had been hired by Respondent
consistent with the allegations of the complaint, there would
also be no doubt that Respondent’s unit would have had a
significant majority of House of Honda unit employees.
Thus, the failure to recognize and bargain allegation turns on
the resolution of the allegations of violations of Section
8(a)(3) of the Act in the complaint—i.e., that Respondent im-
properly failed to hire 10 House of Honda unit employees.
If the General Counsel is sustained in his 8(a)(3) allegations
or is sustained in a sufficient number to create a constructive
successorship, then Respondent was obligated to recognize
and bargain with the Union respecting unit employees.
The parties seemed at least implicitly to agree that if Re-
spondent has not violated Section 8(a)(3) of the Act in fail-
ing to hire a sufficient number of House of Honda unit em-
ployees, Respondent did not at any time become obligated to
recognize or bargain with the Union. The parties further
seem to agree that if a bargaining obligation was incurred,
the changes in terms and conditions of employment in the
unit initiated by Respondent after the obligation attached—
without notifying the Union nor giving it an opportunity to
bargain respecting the changes during that obligation—con-
stitute violations of Section 8(a)(5) of the Act.
Assuming that a bargaining obligation exists, a final issue
argued by the parties, which turns in significant part on the
General Counsel’s contentions respecting Respondent’s hir-
ing practices, is when the bargaining obligation would have
attached. Thus the General Counsel argues that Respondent
should be held to have constructively hired the House of
Honda unit employees sufficiently early in the startup proc-
ess to obligate Respondent to bargain with the Union respect-
ing the setting of initial terms and conditions of Respond-
ent’s unit employees. If the successorship relationship be-
tween House of Honda and Respondent manifested itself as
a matter of law subsequent to this point, Respondent was
free to set initial terms and conditions of employment for
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Counsel for Respondent on brief points out that Batarse’s first
tongue is not English, and urges this fact be taken into consideration
in making findings here. I agree and have done so. Batarse’s perhaps
less than glib command of the idiom, however, does not detract from
my findings above reflecting his ability or sophistication regarding
the commercial and legal aspects of the case.
unit employees and was obligated only to bargain about
changes in working conditions made after that bargaining ob-
ligation came into being.
F. Analysis and Conclusions
1. Credibility resolutions
The bulk of the directly conflicting testimony arrays the
attributions of House of Honda employees, primarily Edward
Tallman and the Staats, against the denials of Respondent’s
agents Rudy Batarse, Steven Saint, and Parker Luciano.
Other testimony was adduced by both sides to either bolster
their own witnesses and versions of events or to attack and
impugn the opposing side’s witnesses and version of events.
To the extent that the General Counsel’s witnesses assert
similar or related conduct by Respondent’s agents which, at-
tributions those agents deny, resolution of the disputed evi-
dence tends to produce a one-sided outcome favoring either
the General Counsel’s or Respondent’s witnesses. The credi-
bility resolutions appearing below however are not based
simply on a binary resolution of one party’s witnesses
against the other’s, but are rather the result of individual con-
sideration of each witnesses’ testimony giving proper consid-
eration to other credibility resolutions and findings made
herein. Separate determinations appear below in an order de-
signed for ease of comprehension. The earlier findings, how-
ever, as all findings herein, are based on the other findings
made as well as the record as a whole and the demeanor of
the witnesses.
a. Rudy Batarse
The determination of Rudy Batarse’s credibility is perhaps
most critical to resolution of the factual disputes in this case.
He was Respondent’s decision maker with respect to the
challenged hiring as well as a participant in many of the dis-
puted events. As set forth in some detail below, I was not
persuaded by his demeanor and have largely discredited his
testimony, particularly where it conflicted with the testimony
of others.
Rudy Batarse was an experienced entrepreneur in the auto-
motive sales world who demonstrated a sophisticated under-
standing of the financial aspects of automotive dealerships in
the San Francisco Bay area. He gave serious consideration
to the merits of acquiring the House of Honda dealership
both from the perspective of that operation’s true financial
status as well as to the possibilities and potential the dealer-
ship might have under his control. Well before the acquisi-
tion Batarse consulted with labor counsel. Further, from his
family and personal experience, he was familiar with ‘‘orga-
nized’’ facilities in the area as well as the personalities of
the representatives of the Union representing the employees
at such facilities. Batarse was therefore a sophisticated partic-
ipant in the matters at issue.8
Batarse testified that his financial analysis of the House of
Honda operation led him to conclude before acquisition that
the parts and service departments had to contribute greater
profits to the dealership to make Respondent’s purchase via-
ble and that substantially increasing service department em-
ployee productivity was the key to achieving this require-
ment. The General Counsel and the Charging Party chal-
lenged these assertions in various ways. I find however that
Batarse’s testimony in this regard was credible in terms of
probabilities, i.e., that a potential purchaser would need
greater profit contributions from the parts and service depart-
ments and that Batarse in particular held that opinion with
respect to the parts and service departments of House of
Honda. It was also credible in terms of demeanor, i.e., Rudy
Batarse’s testimony was confident and persuasive in this as-
pect of his testimony.
Batarse further testified that in staffing his parts and serv-
ice departments he was concerned with obtaining employees
that could meet his productivity goals and that the issue of
labor organization representation of those employees was a
matter, as counsel for Respondent advanced on brief, ‘‘far
from the head of the list.’’ The General Counsel and the
Charging Party countered that Batarse’s asserted indifference
to union representation was complete fabrication. I resolve
this critical factual question in favor of the General Counsel
and the Charging Party rejecting the able arguments of coun-
sel for Respondent. I do so primarily because I discredit
much of Batarse’s testimony. I simply found incredible and
unlikely his testimony of the relative subjective unimportance
of this issue to him.
I take this decision for several reasons not least of which
was that Batarse’s demeanor was particularly unconvincing
during these portions of his testimony. Further, I formed the
belief that Batarse relied on expedience and disinformation
rather than frankness in his dealings with Tolentino respect-
ing the Union. To the extent the two individual’s versions of
their conversations differ, I credit Tolentino. I do so pri-
marily on demeanor. He struck me as a straight forward wit-
ness concerned with telling what he recalled rather than pur-
suing some independent agenda. I find Batarse in effect led
the Union’s representative on by concealing his own inten-
tions behind blank assurances and benign half truths de-
signed to put the Union’s representative off and gain time to
have his nonunion operations well underway before a final
break with the Union was consummated. This behavior in
my view revealed a tendency first not to be rigorously bound
by the truth when it may cause discomfort or difficulty and,
second, an awareness that the issue of union representation
was important and pressing.
I see no inconsistency in crediting Batarse’s testimony that
he believed that significant changes in the operation of the
service and parts departments would be necessary and in dis-
crediting his testimony that his hiring decisions were in fur-
therance of that goal and not based on union or representa-
tional concerns. This is so because I conclude based on the
record as a whole that Batarse believed and acted on the be-
lief that the changes he felt were needed in the parts and
service departments could not be accomplished, or at least
could not be accomplished without great difficulty, if the em-
ployees were represented by the Union. It is clear that a
‘‘flat rate’’ system was perceived as a virtual necessity by
Batarse. It is also clear on this record that Batarse, as appar-
ently virtually all the witnesses who expressed any opinion
on the matter at the hearing, believed that ‘‘flat rate’’ was
349HONDA OF HAYWARD
9 Potters Chalet Drug, 233 NLRB 15 (1977)—improper interroga-
tion to ask applicant about willingness to work in nonunion shop or
to inform applicant that employer was going nonunion or to inform
applicant that a limit to the number of predecessor employees who
could be hired exists. Continental Inn, 186 NLRB 248 (1970)—im-
proper to tell applicant employer felt strongly about going nonunion.
Bucyrus Foodland North, 247 NLRB 284 (1980)—improper to in-
quire how applicant would vote in union election. Bakers of Paris,
288 NLRB 91 (1988)—improper to tell applicant he could be trusted
because he had quit the union. Thriftway Supermarket, 276 NLRB
1450 (1985)—improper to tell an applicant that the employer was
not going to let the union in. Bridgeway Oldsmobile, 281 NLRB
1246 (1986)—improper to tell an applicant he must quit the union
as a condition of being hired.
anathema to the Union and that ‘‘flat rate’’ and ‘‘non-union’’
could be used interchangeably. Under such an analysis,
Batarse’s business analysis coupled with his view that the
Union would not allow needed changes in the compensation
system within the service and parts departments combine to
form a powerful motive to insure the Union did not represent
Respondent’s unit employees. Given this motive coupled
with an understanding of the circumstances leading to a
successorship bargaining obligation, Respondent’s selective
hiring of House of Honda applicants was not implausible.
I also agree with the arguments of the General Counsel
and the Charging Party that Batarse did not fairly utilize the
sources available to him to determine the relative merits of
the House of Honda service employees. Thus House of
Honda Service Manager Don Sipple, testified credibly that he
was never asked about nor reported on his views of the rel-
ative merits of the individuals he had directly supervised for
some years. While Respondent argues that Sipple was a
holdover from a system Batarse rejected as insufficiently
productive, this is not a sufficent explanation of why Sipple’s
opinions should have been at least solicited and considered.
Batarse’s conversation with Luciano respecting the House of
Honda parts employees stands in marked contrast to his
studius disregard of Sipple’s knowledge of the skills of the
service employees at House of Honda.
Finally, my discrediting of Batarse is based in significant
part on my crediting of the various employees whose testi-
mony is noted supra in support of the General Counsel’s
complaint allegations against Batarse. The testimony of
Tallman and Ted and Peter Staat as well as the other House
of Honda employees like Taylor who testified on behalf of
the General Counsel was vigorously and meticulously at-
tacked in an excellent brief by counsel for Respondent.
Counsel’s skill however failed to overcome my essential con-
fidence in their testimony based on their persuasive de-
meanor at trial. Thus, for example, I did not find Tallman’s
remarks about lying, if necessary, to protect Luciano, fatally
undermined his testimony. Nor do I find the fact that Peter
Staat did not produce a receipt for the union membership
withdrawal card he described in his testimony, nor the
Union’s inability to find any evidence of his having with-
drawn, establishes that he did not in fact do so as testified.
These facts as well as the other testimonial inconsistencies
advanced by Respondent are relevant to resolving credibility
and have been considered. On balance, however, even in the
face of the burden of proof the General Counsel bears in
proving each element of the complaint, I find the record evi-
dence given my view of the relative demeanor of the wit-
nesses strongly favors the testimony credited above. I simply
do not believe these individuals fabricated the remarks they
attributed to Batarse. Rather I believe Batarse, well aware of
the potentially adverse consequences to Respondent and
therefore his own pecuniary interest, has simply denied con-
duct he finds inconvenient to admit and supply expedient ex-
planations for conduct undertaken for improper reasons.
b. Steve Saint
I found Saint to be an unsatisfactory witness who failed
to engender confidence in the veracity of his testimony. The
General Counsel’s witnesses, Peter Staat, Ted Staat, and Ed
Tallman attributed statements to Saint set forth in section
III,l,b, supra. Saint denied the attributions. As noted supra,
I found these individuals to be convincing witnesses who tes-
tified truthfully to events they recalled. I found Saint’s deni-
als unpersuasive primarily on demeanor grounds. I credit the
General Counsel’s witnesses over Saint.
c. Parker Luciano
Parker Luciano, corroborated by Assistant Parts Manager
Lance Cabral, denied the remarks attributed to him by Peter
Staat respecting quitting the Union, supra. Luciano had him-
self ‘‘quit’’ the Union by withdrawing. It is not unreasonable
that he might consider such an action by an employee appli-
cant an act of necessary loyalty to Respondent. Neither
Cabral nor Luciano’s denials in this regard struck me as per-
suasive. I have previously found Peter Staat’s testimony
highly credible. I make the same finding here and credit
Peter Staat over Luciano and Cabral.
2. The allegations of 8(a)(1) violations
a. Paragraph 7 of the complaint
There is no dispute that Batarse, Saint, and Luciano are
agents of Respondent. I have credited the testimony adduced
in support of the allegations in paragraph 7 of the complaint
as recited in section III,B,1,b, supra. The General Counsel on
brief cited numerous recent Board cases in support of the
complaint allegations9 which legal propositions Respondent
does not seriously contest. Based on that authority, given the
factual findings made, supra, I find the General Counsel has
sustained the various allegations of violations of Section
8(a)(1) of the Act set forth in paragraph 7 of the complaint.
b. Paragraph 8 of the complaint
Paragraph 8 of the complaint alleges Respondent’s agents
Campbell, Guay, and Luciano violated Section 8(a)(1) of the
Act in their postcomplaint investigation conversations with
employee applicants. The facts are not in essential dispute.
The General Counsel cites Board authority beginning with
the fountainhead decision in Johnnie’s Poultry Co., 146
NLRB 770 (1964), enfd. denied on other grounds 344 F.2d
617 (8th Cir. 1965), that an employer’s agent questioning
employees in interviews undertaken to prepare for unfair
labor practice hearings must: (1) explain the purpose of the
questioning, (2) assure the individual that the interview is
voluntary and, finally, (3) give assurances that no reprisals
will be taken against him or her. The General Counsel argues
on brief: ‘‘Although in some instances some of the require-
ments were met—in no instance were all of the requirements
met.’’
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argues that a per se approach in which an em-
ployer is required to mechanistically give the itemized assur-
ances on every occasion is to be disfavored over a ‘‘totality
of the circumstances’’ approach. Under such an analysis, ar-
gues Respondent, the fact that Respondent’s employees were
not involved augers for a finding of no violation. Further Re-
spondent notes the events at issue occurred over the tele-
phone, a situation particularly empowering to an interviewee
who might simply disconnect the call at anytime he or she
desired. Finally, Respondent argues that when the employee
contacts were made simply to determine if a given individual
would accept reinstatement, if offered, the entire Johnnie’s
Poultry doctrine is simply not involved and no violation re-
sults from any failure to give explanations or assurances. Re-
spondent also argues that the Luciano and Guay conversa-
tions with Tallman presented special circumstances which
render each not improper.
Turning to the Campbell conversations with applicants
about events, I find counsel for the General Counsel has sus-
tained her allegations of a violation of Section 8(a)(1) of the
Act. The uncontested testimony of the witnesses reveal that
on various occasions Campbell failed to identify his prin-
cipal, variously failed to give the required assurances, sug-
gested to one interviewee that a failure to cooperate would
be reported to Respondent and generally failed to meet the
requirements of the decisional law. The majority of the
interviewees at issue were named as discriminatees in the
complaint. At least one was employed at another employer
over whom Batarse had at least arguable influence. The pat-
tern of Campbell’s conduct diminishes any argument that any
particular error was innocuous or simply inadvertent. Under
a per se and totality of the circumstances analyses, Camp-
bell’s course of conduct violated Section 8(a)(1) of the Act.
I agree with Respondent however that Campbell’s contacts
with alleged discriminatees, which were limited to asking the
individual if a job offer would be acceptable, is not the situa-
tion contemplated by the Johnnie’s Poultry line of cases and
Respondent in those circumstances did not violate the Act.
Tallman’s conversation with Luciano also presents a spe-
cial situation which does not rise to the level of a violation.
In my view the conversation, although initiated by Luciano,
was more in the nature of a conversation between friends or
former friends rather than a formal inquiry. Further
Luciano’s call resulted from Tallman’s earlier remarks to
Cabral respecting his willingness to lie in court to protect
Cabral and/or Luciano. In one sense Luciano’s call to
Tallman was defensive or protective as he sought to assure
Tallman that he did not wish Tallman to testify to other than
the truth. Given this context I do not find the requirements
of Johnnie’s Poultry and its progeny apply. Accordingly, I
shall dismiss this allegation.
Guay’s conversation with Tallman followed Luciano’s.
Luciano had suggested that Tallman might receive advice
from Guay. Tallman testified he received assurances from
Guay that any interview was voluntary but did not receive
assurances against reprisals. This conversation shares with
Luciano’s the special context of Tallman’s earlier remarks to
Cabral. Given this special setting and further noting that,
even if found violative of the Act, this allegation would not
expand the remedy directed infra, I find Guay’s statements
did not violate the Act.
3. The 8(a)(3) allegation
a. The General Counsel’s prima facie case
The General Counsel argues the 10 named House of
Honda employees were not hired as a result of Respondent’s
illegal desire to avoid becoming obligated to recognize and
bargain with the Union as a successor to the House of
Honda. Counsel for the General Counsel supported her case
in large part with the evidence offered in support of the inde-
pendent violations of Section 8(a)(1), discussed supra, and in
an attack on the testimony of Respondent’s principal, Rudy
Batarse. In turn Respondent challenged the testimony of the
General Counsel’s witnesses and adduced testimony by
Batarse that his hiring decisions were based on business rea-
sons independent of any concerns respecting either becoming
a successor to House of Honda or otherwise becoming obli-
gated to recognize and bargain with the Union.
I have sustained the bulk of the General Counsel’s allega-
tions of 8(a)(1) violations, supra. I have also discredited
Batarse’s testimony that the avoidance of a successorship
bargaining obligation was not a motivating force in hiring
Respondent’s unit employees. Thus, I have found that Re-
spondent’s agents, including Batarse, were opposed to union
representation of the unit, believed that Respondent would
become obligated to recognize and bargain with the Union
if a majority of House of Honda unit employees were hired
and, finally, were determined to hire few of the House of
Honda’s unit employees for that very reason.
There is no dispute that an employer may not selectively
hire or refuse to hire another employer’s employees in order
to avoid becoming obligated to recognize and bargain with
a union. In refusing to hire a particular applicant or appli-
cants for that reason, an employer violates Section 8(a)(3)
and (1) of the Act. D & K Frozen Foods, 293 NLRB 859
(1989). Given all the above, it is clear and I find that counsel
for the General Counsel has sustained her prima facie case
respecting the 8(a)(3) allegations of the complaint.
b. Respondent’s Wright Line defense
In Wright Line, 251 NLRB 1083, 1089 (1980), the Board
established the current causation test in cases alleging a vio-
lation of the Act turning on employer motivation.
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’’
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of the protected conduct [fn. omitted].
Therefore the finding that the General Counsel has estab-
lished a prima facie case, while shifting the burden of proof
to Respondent, does not preclude Respondent from estab-
lishing that one or more, or indeed all, of the 10 alleged
discriminatees would not have been hired, even if there had
been no union representation at House of Honda and hence
there had been no independent significance to Respondent
what proportion of Respondent’s unit employees were hired
from House of Honda unit applicants.
351HONDA OF HAYWARD
The initial consideration of Respondent’s defense is best
done on an individual basis within the parts and service de-
partments.
(1) The parts department
The parts department at the House of Honda was staffed
by Parker Luciano, Lance Cabral, Adrien Abbadie, Ed
Tallman, and James Fuller. Respondent hired Luciano and
Cabral and did not hire Abbadie, Tallman, or Fuller. Abbadie
was later offered a part-time position which he refused. In
mid-March Respondent hired new employees Kent Frasier,
Alex Hernandez, and Paul Moore.
(a) Ed Tallman
Batarse and Luciano discussed parts department employees
in February and thereafter. Luciano testified that he told
Batarse that Tallman was a ‘‘good parts man’’ but that
‘‘from time to time he had a little bit of an attitude.’’ While
Luciano recommended that some individuals be hired and
some not, with Tallman he testified he made no rec-
ommendation. Batarse told Luciano that a decision would be
made about Tallman following the interviews and after all
options had been considered.
Following Tallman’s contacts with Luciano and Batarse
described in part supra, he was not hired. The General Coun-
sel notes that Tallman had 2-1/2 years’ experience with
House of Honda and had received the ‘‘Counterman of the
Year Award’’ in 1989. Respondent argues that Tallman’s re-
sponses in his interview with Batarse as well as his relative
lack of experience justified his nonhire given the other appli-
cants available.
I have discredited Batarse’s testimony respecting
Tallman’s conversations with him. Given the burden of proof
at this stage of the analysis is on Respondent and my factual
resolution of the credibility conflicts, supra, I find Respond-
ent has not established that Tallman would not have been
hired but for the union considerations found a part of Re-
spondent’s motivations, supra. Accordingly I find by not hir-
ing Tallman, Respondent violated Section 8(a)(3) and (1) of
the Act.
(b) Adrien Abbadie
Luciano testified he had recommended Abbadie not be
hired because of health problems and a neck injury which af-
fected his attendance. The parties stipulated that Abbadie
would have testified that he interviewed with Batarse and in
that interview expressed willingness to work under a flat rate
system. Batarse did not offer Abbadie employment initially
but in April offered him part-time work which Abbadie re-
fused.
Given my findings that Respondent, including Batarse and
Luciano, were engaged in a plan to avoid hiring House of
Honda employees, I do not find the credible evidence con-
cerning Abbadie sufficient to sustain Respondent’s defense
herein. Accordingly, I shall sustain the General Counsel’s al-
legation respecting Abbadie.
(c) James Fuller
James Fuller was a parts driver at the time of the House
of Honda closure. He had earlier been discharged and rein-
stated pursuant to an agreement with the Union. Luciano rec-
ommended to Batarse that he not hire Fuller. Fuller sub-
mitted an application as did all House of Honda unit employ-
ees but was never interviewed by Batarse.
I find there is sufficient evidence on this record—primarily
the strong recommendation by Luciano that Fuller not be
hired and the fact that he was not even interviewed—to find
that Fuller would not have been hired by Respondent even
if the Union had not represented unit employees at the House
of Honda at its close. I do not accept the proposition, im-
plicit in the General Counsel’s argument, that Fuller was also
a victim of discrimination because of his earlier use of the
Union to gain reinstatement as a House of Honda employee.
The fact that Fuller’s position at House of Honda resulted
from past union actions to protect his job is not controlling
on this record. Luciano and Saint did not think well of
Fuller’s work and so reported to Batarse. Such poor reports
sustain Respondent’s burden here. Accordingly, I find Re-
spondent did not violate Section 8(a)(3) and (1) of the Act
when it failed to hire Fuller. This portion of the complaint
shall be dismissed.
(2) The service department
The service department unit employees at the House of
Honda totaled six employees. Respondent hired one, Vince
Brown. It did not hire Harlow Hill, Charles Bailey, Ted
Staat, Peter Staat, or Troy Staat. Respondent hired the fol-
lowing service technicians who had not worked for House of
Honda: Bernd Koegler, Dan Martin, Richard Rigdon, and
Steve Vaughn. John Crawford was hired as a detailer and
Moises Villamar was hired as a lot attendant.
As noted supra, I have found that Batarse did not discuss
the House of Honda service employees’ skills with Sipple.
Luciano and Saint described in general terms the skills of the
service employees. I have concluded, discrediting the con-
trary testimony of Respondent’s agents, that the service de-
partment employees were not scrutinized on merit because of
Respondent’s desire to avoid a successorship relationship
which would obligate Respondent to bargain with the Union.
I find that the evidence offered by Respondent, primarily
Batarse’s testimony respecting his evaluation of the House of
Honda service department applicants based on their inter-
views as well as the merits of the non-House of Honda appli-
cants, inadequate to overcome the strong prima facie case es-
tablished by the General Counsel.
In making this finding I specifically discredit the testi-
mony of Batarse that nepotism avoidance was a factor in
failing to hire some or all of the Staats. I find this rationale
was simply offered to cloak a decision actually based on
antiunion considerations. I also reject his testimony that in
hiring non-House of Honda service department employees,
he made his decisions based on relative merits independent
of union or representational considerations. Thus I find that,
unlike the instance of Fuller noted supra, there is insufficient
credible evidence with respect to any other individual that
Respondent would have refused to hire him had the represen-
tation avoidance motivations of Respondent not been present.
Accordingly, I sustain the allegations of the complaint re-
specting the wrongful failure to hire Harlow Hill, Charles
Bailey, Ted Staat, Peter Staat, and Troy Staat.
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(3) Other unit positions
House of Honda utilized the services of two detailers,
Dennis Clark and Nathaniel Taylor. Respondent hired Clark.
Later Respondent elevated Clark to a ‘‘lot manager.’’ Subse-
quently Batarse interviewed and hired a new employee, John
Crawford, as detailer without offering the position to Taylor.
Thereafter he hired lot attendant Moises Villamar.
Given my findings, supra, respecting Respondent’s motiva-
tions, I find insufficient credible evidence sufficient to sus-
tain Respondent’s burden of proof that Taylor would not
have been hired even if union representation was not a factor
during the hiring process. Accordingly, I sustain the allega-
tions of the complaint respecting Taylor to the extent that he
should have been offered employment in lieu of Crawford.
c. Summary and conclusion respecting
8(a)(3) allegations
I have found and concluded that Batarse was anxious to
avoid becoming obligated to recognize and bargain with the
Union respecting Respondent’s unit employees. I further
found that Batarse believed that, to avoid the Union, he must
avoid staffing his unit with enough House of Honda employ-
ees to constitute a majority of the new unit. I found that he
therefore embarked on a plan—one communicated directly or
indirectly to his agents, Saint and Luciano, to ensure that the
number of House of Honda job applicants hired in the unit
was safely below the triggering level.
Having reached this conclusion, it remained to consider
each House of Honda unit member applicant not hired by
Respondent to determine if, notwithstanding the above find-
ings, that individual would not have been hired. Placing the
burden of proof on Respondent in this aspect of the case, I
found sufficient credible evidence to sustain a finding that
only a single applicant, James Fuller, would not have been
hired, had antirepresentational motivations not driven Re-
spondent’s actions.
Therefore I sustain the allegations of the General Counsel
that Respondent violated Section 8(a)(3) and (1) of the Act
by not hiring the following individuals:
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
4. The allegation of 8(a)(5) violations of the Act
a. The bargaining obligation
Given the findings set forth above respecting the improper
failure to hire House of Honda unit employees, it is appro-
priate to count the applicants improperly refused employment
as constructive employees for purposes of determining if Re-
spondent was a successor to House of Honda respecting the
unit. Given the failure to hire findings, supra, there is no
doubt and I find that Respondent should have hired, and here
is considered for purposes of determining successorship to
have hired, the nine unit members named as discriminatees,
supra. Including these individuals and excluding the nine
other individuals hired improperly in their stead, Respond-
ent’s unit at all times had a substantial majority of employees
from the House of Honda unit represented by the Union.
Given the other requirements of successorship were not in
dispute, I find Respondent’s unit is a successor to the House
of Honda unit and, accordingly, Respondent is bound to rec-
ognize and bargain with the Union as representative of its
unit employees.
b. The time the bargaining obligation attached
A remaining issue is when the above determined bar-
gaining obligation first came into being. The legal con-
sequence of that determination—whether Respondent was
obligated to bargain with the Union over respecting the es-
tablishment of initial terms and conditions of employment of-
fered employees to the extent they varied from those in ef-
fect at the House of Honda—substantially effects both the
violations found and the scope of the remedy.
Board law generally provides that a successor employer’s
obligation to bargain attaches when a majority of employees
in a representative compliment of the unit comes from the
predecessor’s represented unit. Since under this standard a
bargaining obligation attaches only after a representative
number of employees have been hired, no obligation to bar-
gain over the terms initially offered employees is created as
a result of the simple proposition that no employees or an
insufficient number have yet been hired to make the
‘‘successorship’’ determination at the startup of the new op-
eration.
An exception to this typical situation occurs when a deter-
mination is made that the successor employer intends from
the very onset of the takeover that the predecessor’s unit will
be retained as the successor’s unit employees. Thus the Su-
preme Court held in NLRB v. Burns Security Services, 406
U.S. 272, 294–295 (1972), that, in situations where it was
‘‘perfectly clear’’ that the new employer planned to retain
the predecessor’s employees, the bargaining relationship
commences ab initio and obligates the employer to bargain
respecting initial terms and conditions of employment. The
remedy directed in failure to bargain cases changes in these
situations because, typically, a restoration of the status quo
ante and concomitant make whole order requires an employer
to restore conditions as they were before the failure to recog-
nize and bargain occurred. If the failure to bargain arises at
the very start of the process, the status quo ante is the terms
and conditions of employment in effect under the prede-
cessor, here the House of Honda-Union collective-bargaining
agreement.
Clearly Respondent did not tell either Jim Close nor the
House of Honda unit employees that House of Honda unit
employees were going to be hired en mass by Respondent.
The General Counsel however argues that Respondent’s con-
duct supports an ab initio bargaining obligation. The General
Counsel advances a specific case as controlling of the result
here. In Fremont Ford, 289 NLRB 1290, 1296 (1988), the
Board held that an employer’s statements to a union rep-
resentative that he had doubts about the retention of only a
few of the current employees of the predecessor was suffi-
cient to show that it was ‘‘perfectly clear’’ that the successor
would retain the predecessor’s employees when it took over
operation, even though in the actual event that employer
wrongfully failed to hire many of the predecessor’s employ-
ees. The Board held at 1297–1298:
353HONDA OF HAYWARD
Moreover, ‘‘any uncertainty as to what Respondent
would have done absent its unlawful purpose must be
resolved against Respondent, since it cannot be per-
mitted to benefit from its unlawful conduct.’’ Love’s
Barbecue Restaurant, 245 NLRB 78, 82 (1979). There-
fore, the Respondent was not free unilaterally to set ini-
tial terms of employment. Accord: State Distributing
Co., 282 NLRB 1048 (1987).
I have credited the testimony of Tolentino that Batarse
during his attempts to discuss the new dealership and the
Union ‘‘time and time again’’ assured Tolentino:
Don’t worry about it, Bernie, we’ve always had a good
relationship. We need good help and were not going to
have any problems with the union.
I find these statements to Tolentino by Batarse at a time
when Tolentino was attempting to sound out Batarse’s inten-
tions respecting the new dealership were designed to con-
vince Tolentino that Respondent would retain the House of
Honda unit employees—‘‘We need good help’’—and further
convince him that Respondent would recognize the Union
and sign a contract—‘‘were not going to have any problem
with the union.’’
I find in this context Batarse’s statement respecting
‘‘union help’’ meets the ‘‘perfectly clear’’ test as applied in
Fremont Ford, supra. Further, the ‘‘no problems with the
Union’’ assurance clearly tricked Tolentino into deferring
any formal demand for recognition until well after Respond-
ent’s operations were underway. Given this duplicitous con-
duct, Respondent is estopped to argue that the Union’s de-
mand for recognition and bargaining was not sufficiently
timely to invoke the ‘‘initial terms’’ bargaining obligation
advanced by the General Counsel.
Accordingly, I find Respondent was obligated to bargain
with the Union respecting unit employees from the very be-
ginning and was as a consequence obligated to bargain over
unit employees’ initial terms and conditions of employment.
c. Conclusions respecting 8(a)(5) allegations
Respondent was from the onset of its operations in March
obligated to recognize and bargain with the Union. Its failure
to do so violates Section 8(a)(5) and (1) of the Act. Having
failed to recognize and bargain with the Union respecting
unit employee’s terms and conditions of employment, Re-
spondent could not change existing terms and conditions of
employment, i.e., the contract terms in effect at the House
of Honda at the time of closure. All changes in unit employ-
ees’ terms and conditions, including the setting of initial
terms different from those in place at House of Honda,
which admittedly occurred without any recognition or bar-
gaining with the Union, further violate Section 8(a)(5) and
(1) of the Act.
5. Summary of unfair labor practice findings
Based primarily on demeanor, I credited the General
Counsel’s witnesses respecting the conduct alleged to violate
Section 8(a)(1) of the Act. Based on those credibility resolu-
tions, I found the conduct alleged in paragraphs 7 and 8 of
the complaint, save for the allegations respecting Guay,
Campbell’s contact with alleged discriminatees limited to in-
quiries respecting reinstatement and Tallman’s August tele-
phone call with Parker, violated the Act. The General Coun-
sel’s allegations of violations of Section 8(a)(1) of the Act
are therefore sustained save as noted.
I have sustained the General Counsel’s prima facie case
respecting the allegation that Respondent failed to hire 10
House of Honda unit employees in an illegal attempt to
avoid becoming obligated to recognize and bargain with the
Union. I have sustained Respondent’s defense that Fuller
would not have been hired under any circumstances by Re-
spondent. I have rejected its defense with respect to the other
nine individuals. Accordingly, I shall dismiss the complaint
as to Fuller and sustain it as to the following individuals:
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
Respecting the allegations of violations of Section 8(a)(5)
and (1) of the Act, I have sustained the General Counsel’s
allegations in their entirety. Thus, I found based on the au-
thorities cited, supra, that Respondent made it ‘‘perfectly
clear’’ it intended to hire the great majority of House of
Honda’s unit employees and, as a result of its illegal refusal
to hire the nine named individuals listed above, construc-
tively hired a majority of the predecessor’s employees. Thus,
Respondent was obligated from the setting of initial terms
and conditions of employment to recognize and bargain with
the Union. Its admitted failure to do so therefore violated
Section 8(a)(5) and (1) of the Act as did each change in
working conditions of unit employees made without bar-
gaining with the Union including the setting of initial terms
and conditions of employment different from those in place
at the House of Honda prior to its close.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
With respect to the violations of Section 8(a)(3) and (5),
I shall follow the teachings of Fremont Ford, 289 NLRB
1290, 1297–1298 (1988).
I shall order Respondent to offer the nine House of Honda
unit employees listed below, in writing, immediate, full and
unconditional employment in the unit positions for which
they applied or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
and other rights and privileges they would have enjoyed if
initially hired at the commencement of operations or at such
time at non-House of Honda unit employees were hired in
their stead, dismissing if necessary unit persons not earlier
employed by the House of Honda, and to make them whole
for any loss of earnings and benefits in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I shall fur-
ther order Respondent to give all unit employees written no-
tice that it will recognize and bargain with the Union as the
exclusive representative of employees in the unit. I shall also
order Respondent to remove from its records all references
to its refusal to employ the nine unit applicants listed below
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
and notify each of them in writing that this has been done
and the fact of their original nonhire will not be used against
them in the future:
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
I shall order Respondent to recognize and, on request, bar-
gain with the Union as the exclusive representative of all its
employees in the unit. I shall also order Respondent to re-
scind, on the Union’s request, the unilateral changes in unit
employees’ wages, hours, and terms and conditions of em-
ployment implemented in March 1990 and subsequently; and
to make all affected unit employees whole for losses they in-
curred by virtue of its unilateral changes to their wages,
fringe benefits, and other terms and conditions of employ-
ment in accordance with Ogle Protection Service, 183 NLRB
682 (1970), with interest as prescribed in New Horizons for
the Retarded, supra. Respondent shall remit all payments it
owes to the employee benefit funds and reimburse its em-
ployees in the manner set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), for any expenses resulting from Respondent’s
failure to make these payments. Any amounts that Respond-
ent must pay into the benefit funds shall be determined in
the manner set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1970).
In view of the widespread and egregious nature of Re-
spondent’s conduct and at the request of the General Coun-
sel, I shall also include a broad cease-and-desist order. See
Hickmont Foods, 242 NLRB 1357 (1979).
Respondent argues for and the General Counsel opposes
modification of the standard remedy in these cases because
of the actions taken by Respondent in the course of the Fed-
eral district court litigation under Section 10(j) of the Act,
described, supra. I shall defer consideration of the con-
sequences of the court’s orders and other actions taken by
the parties in that context to the compliance stage of these
proceedings. Respondent’s arguments are thus preserved for
presentation in that forum, if necessary.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) Interrogated employment applicants respecting their
union activities.
(b) Interrogated employee applicants about how they
would vote in a union representation election.
(c) Interrogated employment applicants about whether they
would work for a ‘‘union shop.’’
(d) Interrogated employment applicants about whether they
had ‘‘quit’’ the Union.
(e) Told employee applicants that employees of the pre-
vious employer would not be hired so as to avoid incurring
an obligation to recognize and bargain with the Union.
(f) Told employee applicants Respondent would not hire a
majority or more than 50 percent of the predecessor employ-
er’s unit employees so as to avoid an obligation to recognize
and bargain with the Union.
(g) Told employee applicants they must quit the Union be-
fore being hired by Respondent.
(h) Told employee applicants that Respondent was not
going to allow the Union ‘‘in.’’
(i) Told employee applicants Respondent could trust them
because they had ‘‘quit’’ the Union.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by failing and refusing to hire the following individuals in
order to avoid an obligation to recognize and bargain with
the Union as a successor employer:
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
5. At all times since before the commencement of Re-
spondent’s operations the Union has been the exclusive rep-
resentative for purposes of collective bargaining of Respond-
ent’s employees in the following unit:
All full-time and regular part-time employees employed
in the Parts and Service Departments in the job classi-
fications set forth in Article XVII of the ‘‘Addendum
Between the Greater East Bay New Car Dealers Asso-
ciation For And On Behalf of Southern Alameda Coun-
ty Dealers Association and East Bay Automotive Coun-
cil,’’ effective July 1, 1989 through June 30, 1993; ex-
cluding all other employees, guards, and supervisors as
defined in the Act, as amended.
6. Commencing in March 1990 and continuing to date,
Respondent violated Section 8(a)(5) and (1) of the Act by
engaging in the following acts and conduct:
(a) Failing and refusing to recognize the Union as the ex-
clusive representative of employees in the unit described
above for purposes of collective bargaining.
(b) Failing and refusing to meet and bargain with the
Union respecting the setting of terms and conditions of em-
ployment for unit employees.
(c) Unilaterally setting and changing terms and conditions
of employment for unit employees without notifying the
Union nor affording it an opportunity to bargain respecting
such changes.
7. The above unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. Except as specifically found above, Respondent has not
violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
355HONDA OF HAYWARD
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Anthony Motor Company, Inc. d/b/a
Honda of Hayward, Hayward, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employment applicants about their union
activities and sympathies, whether they would work in a
‘‘non-union shop’’ or how they would vote in a union rep-
resentation election.
(b) Interrogating employment applicants about whether
they had ‘‘quit’’ the Union.
(c) Telling employee applicants they must quit the Union
before being hired by Respondent and/or that Respondent
could trust applicants who had quit the Union.
(d) Telling employee applicants that Respondent was not
going to allow the Union ‘‘in’’ Respondent’s store, telling
employee applicants that employees of Respondent’s prede-
cessor would not be hired so as to avoid becoming obligated
to recognize and bargain with the Union and telling employ-
ees that Respondent must avoid hiring more than 50 percent
of the predecessor’s unit employees to avoid becoming obli-
gated to recognize and bargain with the Union.
(e) Failing and refusing to hire the below listed employees
of the predecessor employer in order to avoid becoming obli-
gated to recognize and bargain with the Union as representa-
tive of unit employees:
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
(f) Refusing to recognize and bargain in good faith with
the Union as the exclusive representative of the employees
in the bargaining unit set forth below by:
(i) Failing to recognize the Union as representative of unit
employees.
(ii) Failing to meet and bargain with the Union respecting
terms and conditions of employment for unit employees.
(iii) Unilaterally setting terms and conditions of employ-
ment for bargaining unit employees and thereafter unilater-
ally changing those terms.
(g) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer, in writing, to the extent it has not already done
so, immediate and full reinstatement to all nine employees
named below to the positions they held with the predecessor
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed while working for its
predecessor, and make them whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, discharging if necessary the persons hired into
bargaining unit positions who had not previously worked in
the House of Honda bargaining unit. With reinstatement of-
fers, Respondent shall notify these individuals that it will
recognize and bargain with the Union as their exclusive rep-
resentative.
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
(b) Remove from its files any reference to the unlawful re-
fusal to hire the nine unit employees and notify these em-
ployees in writing that this has been done and that this un-
lawful conduct will not be used against them in any way.
(c) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the following
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time employees employed
in the Parts and Service Departments in the job classi-
fications set forth in Article XVII of the ‘‘Addendum
Between the Greater East Bay New Car Dealers Asso-
ciation For And On Behalf of Southern Alameda Coun-
ty Dealers Association and East Bay Automotive Coun-
cil,’’ effective July 1, 1989 through June 30, 1993; ex-
cluding all other employees, guards, and supervisors as
defined in the Act.
(d) On request of the Union, rescind the unilateral changes
in the unit employees’ wages, hours, and working conditions
implemented in the hiring of unit employees in March 1990
and thereafter, and make affected employees, including those
whose employment is directed above, whole for any and all
losses they incurred by virtue of the unilateral changes to
their wages, fringe benefits, and other terms and conditions
of employment from the initial hire of unit employees in
March 1990, until it negotiates in good faith with the Union
to agreement or to impasse, in the manner set forth in the
remedy section of the decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records
and other records and documents necessary to analyze the
amount of backpay and other monyes due under the terms
of this Order and to ensure that this Order has been fully
complied with.
(f) Post at its Hayward, California facility copies of the at-
tached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
The National Labor Relations Act holds that an employer
who employs a majority of employees from a bargaining unit
employed by the former employer whose operations the new
employer takes over must recognize and bargain with the
labor organization that represented the predecessor’s unit em-
ployees.
The Act further holds that an employer may not refuse to
hire a predecessor’s employees because it wishes to avoid
recognizing and bargaining with a labor organization.
When Anthony Motor Company, Inc. doing business as
Honda of Hayward took over the operations of House of
Honda in March 1990, it improperly failed to hire many of
the unit employees of House of Honda. Had it hired those
employees, a substantial majority of its employees in the unit
described below would have come from the predecessor unit
at House of Honda. Accordingly, Anthony Motors from the
very beginning of its operations in March 1990 was obli-
gated to recognize and bargain with the East Bay Automotive
Council and its affiliated Local Unions: Machinists Auto-
motive Trades District Lodge No. 190; East Bay Automotive
Lodge 1546; Auto, Marine and Specialty Painters Union,
Local No. 1176; and Teamsters Automotive Employees
Union, Local No. 78, as the exclusive representative of unit
employees.
Given all these facts, we give you the following assur-
ances:
WE WILL NOT interrogate employment applicants about
their union activities and sympathies, whether they would
work in a ‘‘non-union shop’’ or how they would vote in a
union representation election.
WE WILL NOT interrogate employment applicants about
whether they had ‘‘quit’’ the Union.
WE WILL NOT tell employee applicants they must quit the
Union before being hired by Respondent and/or that Re-
spondent could trust applicants who had quit the Union.
WE WILL NOT tell employee applicants that Respondent
was not going to allow the Union ‘‘in’’ Respondent’s store,
tell employee applicants that employees of Respondent’s
predecessor would not be hired so as to avoid becoming obli-
gated to recognize and bargain with the Union or tell em-
ployees that Respondent must avoid hiring more than 50 per-
cent of the predecessor’s unit employees to avoid becoming
obligated to recognize and bargain with the Union.
WE WILL NOT fail and refuse to hire employees of the
predecessor employer, Jim Close Motors, d/b/a House of
Honda, in order to avoid becoming obligated to recognize
and bargain with the Union as representative of unit employ-
ees.
WE WILL NOT refuse to recognize and bargain in good
faith with the Union as the exclusive representative of the
employees in the bargaining unit set forth below.
WE WILL NOT unilaterally set terms and conditions of em-
ployment for bargaining unit employees and thereafter unilat-
erally changing those terms and conditions of employment
without notifying the Union or providing it an opportunity to
bargain respecting proposed changes.
WE WILL NOT in any other manner interfere with, restrain,
or coerce employees and/or employee applicants in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
WE WILL offer, in writing, to the extent we have not al-
ready done so, immediate and full reinstatement to all nine
employees named below to the positions they held with the
predecessor or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights and privileges previously enjoyed, while
working for its predecessor, and WE WILL make them whole
for any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, discharging if nec-
essary the persons hired into bargaining unit positions who
had not previously worked in the House of Honda bargaining
unit. WE WILL notify these individuals that we will recognize
and bargain with the Union as their exclusive representative.
Adrien Abbadie Troy Staat
Charles Bailey Edward Tallman
Harlow Hill Nathaniel Taylor
Peter Staat Herman Troche
Ted Staat
WE WILL remove from our files any reference to the un-
lawful refusal to hire the nine unit employees and WE WILL
notify these employees in writing that this has been done and
that this unlawful conduct will not be used against them in
any way.
WE WILL, on request, bargain with the Union as the exclu-
sive bargaining representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement. The appropriate bar-
gaining unit is:
All full-time and regular part-time employees employed
in the Parts and Service Departments in the job classi-
fications set forth in Article XVII of the ‘‘Addendum
Between the Greater East Bay New Car Dealers Asso-
ciation For And On Behalf of Southern Alameda Coun-
ty Dealers Association and East Bay Automotive Coun-
cil,’’ effective July 1, 1989 through June 30, 1993; ex-
cluding all other employees, guards, and supervisors as
defined in the Act, as amended.
357HONDA OF HAYWARD
WE WILL, on request of the Union, rescind the unilateral
changes in the unit employees’ wages, hours, and working
conditions that we implemented in the hiring of unit employ-
ees in March 1990 and thereafter, and make affected employ-
ees, including those whose employment is directed above,
whole for any and all losses they incurred by virtue of the
unilateral changes to their wages, fringe benefits, and other
terms and conditions of employment from the initial hire of
unit employees in March 1990, until we negotiate in good
faith with the Union to agreement or to impasse, in the man-
ner set forth in the remedy section of the decision.
WE WILL preserve and, on request, make available to the
Board or its agents for examination and copying, all payroll
records and other records and documents necessary to ana-
lyze the amount of backpay and other moneys due under the
terms of this Order and to ensure that the terms of this Order
have been fully complied with.
ANTHONY MOTOR COMPANY, INC. D/B/A
HONDA OF HAYWARD