Melody Toyota

National Labor Relations Board - Board Decisions

May 29, 1998

325 N.L.R.B. 846 (N.L.R.B. 1998)

846
325 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(5) and (1) of the Act by failing and refusing
to provide the Union with notice of the sale of its business and an
opportunity to bargain concerning the effects on unit employees of
its cessation of operations and sale.
Melody San Bruno, Inc. d/b/a Melody Toyota and
International Association of Machinists &
Aerospace Workers, AFL–CIO, District Lodge
No. 190, Peninsula Auto Mechanics Local
Lodge No. 1414. Case 20–CA–27104
May 29, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
On January 16, 1997, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Charging Party filed a limited exception.
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 limited exception1 and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as modi-
fied below.
The judge’s recommended Order provides, inter alia,
for the Board’s standard backpay remedy in effects
bargaining cases as modeled after the remedy set forth
in Transmarine Navigation Corp., 170 NLRB 389
(1968). The Charging Party has excepted to the
Transmarine remedy insofar as it requires the Union to
request bargaining ‘‘within 5 days of this decision.’’
The Charging Party contends, inter alia, that ‘‘[i]t is
practically impossible to comply with the 5 day notice
provision, particularly when decisions are put in the
mail.’’
We find merit in this exception to the extent that the
Order language suggests, contrary to Emsing’s Super-
market, 307 NLRB 421, 421–422 (1992), that a union
must request bargaining within 5 days from the date of
the Board’s decision rather than, as Emsing’s held,
within 5 business days after receipt of the decision. As
explained in Emsing’s:
After carefully considering both the policy con-
sideration underlying the 5-day rules, i.e., the de-
sire to encourage due diligence, and the practical
exigencies imposed by mail and delivery services,
we have decided that, in applying the
Transmarine remedy, the countdown for the 5-day
period for requesting bargaining begins on the
first business day after the date of receipt of the
Board’s Decision and Order by the legal rep-
resentative of the party obligated to request bar-
gaining. The date of issuance of the Decision and
Order is, therefore, irrelevant in computing the 5-
day period. In addition, intervening Saturdays,
Sundays, or legal state or Federal holidays shall
be excluded in computing the 5-day period. Fur-
ther, if the party requesting bargaining chooses to
communicate its request by mail, by telegram, or
by some other written form of communication,
that communication will be timely if it is post-
marked on or before the 5th day. Thus, there is
no requirement that the written communication be
received by the other party within the 5-day pe-
riod. [Emphasis in original.]
In addition, during the 5-day period, there is no re-
quirement that the union tender a bargaining proposal;
the union simply needs to communicate to the Re-
spondent its desire to begin negotiations. Further, con-
trary to the Charging Party’s contention, the Order is
consistent with normal Board bargaining orders which
direct the respondent to bargain with the union upon
request. Accordingly, we approve the remedy proposed
by the judge, but we modify paragraph 2(a) of the
Order in accordance with Emsing’s.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mel-
ody San Bruno, Inc. d/b/a Melody Toyota, San Bruno,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a):
‘‘(a) Pay the former employees in the unit described
above their normal wages when in the Respondent’s
employ from 5 days after the date of this Decision
until the occurrence of the earliest of the following
conditions: (1) the date the Respondent bargains to
agreement with the Union on those subjects pertaining
to the effects of the sale of the Toyota automotive
dealership; (2) the date a bona fide impasse in bargain-
ing occurs; (3) the failure of the Union to request bar-
gaining within 5 business days after receipt of this De-
cision, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its de-
sire to bargain with the Union; or (4) the subsequent
failure of the Union to bargain in good faith; but in
no event shall the sum paid to any of the employees
exceed the amount he or she would have earned as
wages from the date in October 1995, when the em-
ployee was terminated as a result of the sale of the
auto dealership and the cessation of the Respondent’s
operations, to the time he or she secured equivalent
employment elsewhere; provided, however, that in no
event shall this sum be less than these employees
would have earned for a 2-week period at the rate of
their normal wages when last in the Respondent’s em-
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847MELODY TOYOTA
1 The Respondent, through counsel, filed an answer to the com-
plaint. By formal Substitution of Attorneys filed on June 24, 1996,
counsel for the Respondent withdrew from the case and the Re-
spondent’s president, Mr. Billy J. Wilson, was designated as the Re-
spondent’s representative and thereafter represented the Respondent.
In a pretrial telephone conference call, Wilson indicated that he
would not appear and participate in the hearing in the matter al-
though he did enter into certain stipulations with counsel for the
General Counsel which were placed into the record by the Govern-
ment. The Respondent did not appear or offer evidence at the hear-
ing.
2 While the unit may have originally been two units, the parties
under the contract dealt with the combined group. There is no unit
description as such in either the contract or the complaint. Rather,
each refers to all nonsupervisory work as described in the contract.
The unit description used herein is assembled from the work descrip-
tion portions of the contract.
3 Gandolfo was the only witness at the hearing who testified about
the events concerning the sale and notice to the Union. His de-
meanor was sound and his recollection clear. I fully credit his testi-
mony.
ploy, with interest, as set forth in the remedy portion
of this decision.’’
2. Substitute the following for paragraph 2(c):
‘‘(c) Preserve and, within 14 days of a request,
make available to the Board or its agents for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.’’
Jonathan J. Seagle, Esq., for the General Counsel.
David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on August 15, 1996, in San Francisco,
California. The complaint and notice of hearing issued on
March 29, 1996, based on a charge in Case 20–CA–27104,
filed on February 5, 1996, by the International Association
of Machinists & Aerospace Workers, AFL–CIO, District
Lodge No. 190, Peninsula Auto Mechanics Local Lodge No.
1414 (the Charging Party or the Union) against Melody San
Bruno, Inc. d/b/a Melody Toyota (the Respondent).
Posthearing briefs were submitted by the General Counsel
and the Charging Party on September 5 and 13, 1996, re-
spectively.
The complaint, as amended at the hearing, alleges that the
Respondent, a corporation, operating an automotive dealer-
ship through October 1995, had long recognized and bar-
gained with the Charging Party as representative of certain
of its employees, but in October 1995, sold its assets and
ceasedoperations with insufficient notice to the Charging
Party and without providing the Union an opportunity to bar-
gain with the Respondent respecting the effects of the sale
and cessation of operations. This conduct is alleged to violate
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act). The Respondent denies that it has violated the
Act.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Charging Party, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent had been, until October 30, 1995, a cor-
poration, with an office and place of business in San Bruno,
California, where it had been engaged in the servicing and
sale of automobiles. The Respondent annually, through cal-
endar year 1995, purchased and received at its San Bruno,
California facility goods valued in excess of $5000 from
points outside the State of California, and derived gross an-
nual revenues in excess of $500,000.
Based on the above, I find that the Respondent at relevant
times was an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all material times the Charging Party has been a labor
organization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
At relevant times the Respondent’s president was Billy J.
Wilson and its general manager was Joseph Durelli. These
two individuals were stipulated to be supervisors and agents
of the Respondent at relevant times.
The Respondent and the Charging Party had a longstand-
ing collective-bargaining relationship. The most recent col-
lective-bargaining agreement by its terms extended from July
1993 to July 1997, and covered approximately 18 employees
in the following unit2 (here the unit):
All service advisors/dispatchers and all employees en-
gaged in the repairing, refinishing and maintaining of
all automobiles, trucks, tractors, trailers, motorcycles of
Melody San Bruno Inc. at its Melody Toyota, San
Bruno, California operations excluding guards and su-
pervisors as defined in the Act.
B. Events
Glenn Gandolfo, a business representative employed by
Automotive Trades District Lodge 190 and assigned to Local
Lodge 1414, had represented the Charging Party in its deal-
ings with the Respondent for approximately 10 years until
the events in question. He testified to a series of events in
the summer and fall of 1995.3
Gandolfo had been dealing with Durelli, the Respondent’s
general manager, respecting grievances in the summer of
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848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Unless otherwise indicted all references hereinafter refer to 1995.
5 A Toyota automotive dealership doing business as Melody Toy-
ota commended operations with the cessation of the Respondent’ op-
erations and apparently continues to operate at the facility. There is
no contention on this record, however, that the new commercial en-
tity is in any manner involved in the instant matter.
1995.4 In July he asked Durelli about rumors that the Re-
spondent had its Toyota automobile dealership up for sale.
Gandolfo testified that Durelli told him: ‘‘[T]he place is al-
ways up for sale, you know. If the right person comes along
with the right price, you know, salesmen, they’ll sell any-
thing,’’ but added that no sale was then in progress. Again,
in mid-September during other business Gandolfo braced
Durelli with questions about a sale of the operation. Durelli
confirmed the dealership was for sale, but suggested that cer-
tain regulatory and other problems existed which would
delay any sale, even if it went through, into November or
into the next year.
In mid-October, after receiving reports from employees
that the business was in the process of being sold, Gandolfo
called Durelli and asked again about a possible sale. He de-
scribed Durelli’s answer:
And [Durelli] said, yes, it is being sold, but he says,
we still have, you know, some major hurdles to over-
come. Toyota still hasn’t given approval. There’s this
whole issue of whether or not the land and building is
going to be sold now because of the—they’re trying to
work around the EPA things. If it’s not sold; if it’s just
leased and so forth. He says.
So it’s definitely being sold, but when, he couldn’t
give me a date. He couldn’t give me a time. He wasn’t
really sure. And as he kind of explained to me, was,
you know, I’m the general manager, but, obviously, I’m
not involved in the sales so I can’t give specific details.
A few days later on Friday, October 20, employees were
reporting to Gandolfo that a sale was in process and that they
were to be laid off that day or perhaps the following Mon-
day, October 23. Gandolfo testified that he immediately tried
to reach Durelli by phone at the dealership but was told he
no longer worked there. Gandolfo then undertook an ongoing
effort to reach any management official of the Respondent to
discuss the closure. He tried to reach Wilson by telephone
on Friday, October 20, and thereafter through the next week,
but was told on each occasion that Wilson was unavailable.
All his efforts to reach knowledgeable agents of the Re-
spondent were unavailing save that he reached Parts and
Service Director Scott Fuller, later in the week of October
23, who told Gandolfo that the dealership had been sold and
that another dealership had purchased it and would take over
all operations within a few days.
By October 30 the sale had apparently been consummated.
Gandolfo testified that the individuals who answered the tele-
phones at the dealership premises asserted they were a new
and separate business entity not associated with the Respond-
ent and professed not to have knowledge of the Respondent’s
current business location or even the physical location of the
Respondent’s principals or other agents. In response to con-
tinued inquiries the individuals employed by the new entity
consistently took the position that they were simple pur-
chasers and had no knowledge of or responsibility for the
Respondent.5
Thereafter Gandolfo tried unsuccessfully to locate Wilson
and was not even able to obtain his home telephone number
let alone devise a way to speak to him or reach him by let-
ter. No certain contact was made with the Respondent in the
remainder of the year, although the Union sent a grievance
respecting the closure to the dealership’s address in the hope
that the material would be somehow forwarded to the Re-
spondent agent. On this record, other than the contacts relat-
ing to the instant litigation, the Respondent has not dealt
with the Union concerning the closure in any fashion whatso-
ever to date.
Analysis and conclusions
It is longstanding Board doctrine that an employee has an
obligation, under the Act, to notify a labor organization rep-
resenting its employees of a decision to end its operations
sufficiently in advance of the termination so as to afford the
union a fair opportunity to request and engage in bargaining
concerning the effects of the decision to cease operation on
represented employees. Transmarine Navigation Corp., 170
NLRB 389 (1968).
The complaint alleges that the Respondent failed to give
notice to, and provide an opportunity to the Union to request
and engage in bargaining concerning the effects of the sale
and discontinuance of the Respondent’s auto dealership oper-
ations on the unit employees. The General Counsel and the
Charging Party argue that the scant and indirect oral asser-
tions from the Respondent’s agents described above respect-
ing the possible sale of the business made by Durelli and
Fuller to Gandolfo, were clearly not sufficient to fulfill the
Respondent’s obligation to timely notify the Union of the
sale and cessation of operations and provide the Union with
an opportunity to bargain respecting the effects of the sale
on represented employees citing National Car Rental System,
252 NLRB 159 (1980), enfd. in relevant part 672 F.2d 1182
(3d Cir. 1982).
I find that the information communicated by the Respond-
ent’s agents was never sufficiently certain to rise to the level
of actual or constructive notice to the Union of a sale and,
further, that the sale occurred before the Union could locate
an agent of the Respondent on whom it could make a de-
mand to negotiate respecting the effects of the closure on
represented employees. On this record the Union was pre-
sented with a classic fait accompli and had no chance what-
soever to communicate a bargaining demand or engage in
bargaining before the operations was closed. Having been
unable to locate an agent of the Respondent, it was impos-
sible for the Union to request or engage in effects bargain-
ing. Thus, it is clear and I find that the Respondent, in fail-
ing to provide notice and an opportunity to bargain to the
Union respecting the effects of its closure of operations sale
of the business on represented employees, wrongly prevented
any bargaining from occurring. Based on all the above, I find
the actions and omissions of the Respondent violated Section
8(a)(5) and (1) of the Act. I, therefore, sustain the allegations
of the complaint.
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849MELODY TOYOTA
6 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.
7 Copies of the notice, on forms provided by the Regional Direc-
tor, may prior to transmission to the Respondent be amended by the
Regional Director to include a translation of its terms in such other
languages as the Regional Director determines are necessary to fully
communicate with former employees.
8 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.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist therefrom, and further ordered to take certain af-
firmative action designed to effectuate the policies of the
Act. Respecting the directed remedy, I shall follow the
Board’s lead case in this area: Transmarine Navigation
Corp., supra, as well as the Board’s recent modifications to
its standard remedy in Indian Hills Care Centers, 321 NLRB
144 (1996). Interest on sums due shall be calculated as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
CONCLUSIONS OF LAW
1. The Respondent has been at all relevant times an em-
ployer 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. The Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to provide the Union with notice
of the sale of its business and an opportunity to bargain con-
cerning the effects of its cessation of operations and sale of
its automobile dealership on its represented employees in the
following unit:
All service advisors/dispatchers and all employees en-
gaged in the repairing, refinishing and maintaining of
all automobiles, trucks, tractors, trailers, motorcycles of
Melody San Bruno Inc. at its Melody Toyota, San
Bruno, California operations excluding guards and su-
pervisors as defined in the Act.
4. The unfair labor practice described above are unfair
labor practices within the meaning of Section 2(6) and (7)
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Melody San Bruno, Inc. d/b/a Melody
Toyota, San Bruno, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to give the Union sufficient notice
of its sale of its automotive dealership and an opportunity to
bargain with respect to the effects of the sale on represented
employees in the following unit:
All service advisors/dispatchers and all employees en-
gaged in the repairing, refinishing and maintaining of
all automobiles, trucks, tractors, trailers, motorcycles of
Melody San Bruno Inc. at its Melody Toyota, San
Bruno, California operations excluding guards and su-
pervisors as defined in the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay the former employees in the unit described above
their normal wages when in the Respondent’s employ from
5 days after the date of this decision until the occurrence of
the earliest of the following conditions: (1) the date the Re-
spondent bargains to agreement with the Union on those sub-
jects pertaining to the effects of the sale of the Toyota auto-
motive dealership; (2) the date a bona fide impasse in bar-
gaining occurs; (3) the failure of the Union to request bar-
gaining within 5 days of this decision, or to commence nego-
tiations within 5 days of the Respondent’s notice of its desire
to bargain with the Union; or (4) the subsequent failure of
the Union to bargain in good faith; but in no event shall the
sum paid to any of the employees exceed the amount he or
she would have earned as wages from the date in October
1995, when the employee was terminated as a result of the
sale of the auto dealership and the cessation of the Respond-
ent’s operations, to the time he or she secured equivalent em-
ployment elsewhere; provided, however, that in no event
shall this sum be less than these employees would have
earned for a 2-week period at the rate of their normal wages
when last in the Respondent’s employ, with interest, as set
forth in the remedy portion of this decision.
(b) On request, bargain collectively with the Union with
respect to the effects on unit employees of its decision to sell
its automotive dealership, and reduce to writing any agree-
ment reached as a result of the bargaining.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, mail at its
own expense an exact copy7 of the notice attached hereto,
marked ‘‘Appendix’’8 to the Union and to all former unit
employees who were employed in the month of October
1995, at the Melody Toyota auto dealership.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
This notice has been mailed to the Union and to All Employ-
ees who were Employed by Melody San Bruno, Inc. d/b/a
Melody Toyota in the advisors and mechanics bargaining
unit during the month of October 1995.
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to mail this notice to our former employees as described
above and to abide by its terms.
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.
An Employer subject to the National Labor Relations Act
must collectively bargain with the labor organization that
represents its employees concerning wages hours and work-
ing conditions. While an employer need not bargain with a
union about its determination to cease all operations and go
out of business, it must give the union notice of such a deci-
sion and an opportunity to bargain concerning the effects of
such a sale and closure upon the employees the Union rep-
resents.
WE WILL NOT fail and refuse to notify the International
Association of Machinists and Aerospace Workers, AFL–
CIO, District Lodge No. 190, Peninsula Auto Mechanics
Local Lodge No. 1414 of our decision to sell and close our
automotive dealership and WE WILL NOT fail and refuse to
provide the Union an opportunity to bargain respecting the
following unit of employees respecting the sale and closure.
All service advisors/dispatchers and all employees en-
gaged in the repairing, refinishing and maintaining of
all automobiles, trucks, tractors, trailers, motorcycles of
Melody San Bruno Inc. at its Melody Toyota, San
Bruno, California operations excluding guards and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees and employee applicants in
the exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL, upon request bargain collectively with the
Union with respect to the effects on unit employees of its de-
cision to sell our automotive dealership and reduce to writing
any agreement reached as a result of the bargaining.
WE WILL pay the former employees in the unit described
above, who were employed at the time of our sale and clo-
sure, their normal wages, with interest, for a period set forth
in the decision underlying this notice to employees.
MELODY SAN BRUNO, INC. D/B/A MELODY
TOYOTA
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