Mercedes Benz of S.F.

National Labor Relations Board - Administrative Judge Opinions

Jun 19, 2003

20-CA-030623 (N.L.R.B. Jun. 19, 2003)

JD(SF)–38–03
San Francisco, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES

EUROPEAN MOTORS, LTD. d/b/a
MERCEDES-BENZ OF SAN FRANCISCO

and Cases 20-CA-30623
20-CA-30685

MACHINISTS DISTRICT LODGE 190, LOCAL
LODGE 1414, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO

Michael L. Smith, Esq., of San Francisco, California
for the General Counsel
David Rosenfeld, Esq., Van Bourg, Weinberg,
Roger & Rosenfeld, of Oakland, California for
the Union
Robert G. Hulteng, Esq. and Sandro Garofalo, Esq.,
Littler Mendelson, of San Francisco, California,
for Respondent

DECISION

Statement of the Case

Mary Miller Cracraft, Administrative Law Judge. The General Counsel alleges that
European Motors, Ltd. d/b/a Mercedes-Benz of San Francisco (Respondent) discharged John
Sao because of his activities on behalf of Machinists District Lodge 190, Local Lodge 1414,
International Association of Machinists and Aerospace Workers, AFL-CIO (the Union). General
Counsel also alleges that Respondent unlawfully made two changes to employees' working
conditions without affording the Union an opportunity to bargain.1

On the entire record, including my observation of the demeanor of the witnesses,2 and
after considering the briefs filed by counsel for the General Counsel and counsel for
Respondent, I make the following
1 The Union filed the charge in Case 20-CA-30623 on April 9, 2002. The Union filed the
charge in Case 20-CA-30685 on May 23, 2002. These cases were consolidated and complaint
issued on October 31, 2002. An amended consolidated complaint issued on January 13, 2003.
Respondent filed timely answers to these complaints. This case was tried in San Francisco,
California, on January 27, 28, 30, and 31 and February 10, 2003.
2 Credibility resolutions have been made based upon the entire record and all exhibits in this
proceeding. Witness demeanor and inherent probability of the testimony have been utilized to
assess credibility. Testimony contrary to my findings has been discredited on some occasions
because it was in conflict with credited testimony or documents or because it was inherently
incredible and unworthy of belief.

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Findings of Fact

I. Jurisdiction

Respondent, a California corporation, sells and services automobiles at several locations
in San Francisco, California. During calendar year 2001, Respondent derived gross revenues in
excess of $500,000. Respondent admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

II. Labor Organization Status

As admitted by Respondent, I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

III. Alleged Unfair Labor Practices

A. Background

Respondent maintains a sales and administrative facility at 950 Van Ness Street in San
Francisco, California (the Van Ness Facility or VNF) as well as three service and parts facilities
in San Francisco: a facility at 1480 Folsom Street (the Folsom Street Facility or FSF), one at
Twelfth and Howard Streets (the Twelfth Street Facility or TSF), and one on Clay Street (the
Clay Street Facility or CSF). A garage on Kiesling Street (the Kiesling Street Garage or KSG)
across the street from FSF is maintained for washing, detailing and parking cars that are being
serviced at FSF. Customers may call either FSF or CSF to schedule service.

Richard Fisher is vice-president and general manager of Respondent. Karl Goertzen
was service director of FSF until he retired on March 6 or 7, 2002. At that time, Greg James,
service and parts director of Mercedes-Benz in Oakland, California, became the service and
parts director for Respondent,3 although he actually began “overseeing” operations at FSF in
late September 2001. James became involved in decision-making at FSF in December 2001.
Both Fisher and James have authority over the three service and parts facilities as well as
unrelated but commonly owned operations at a unionized facility in Oakland, California. At FSF,
Richard Rothe is the dispatcher, Vince Van Hoven is the service foreman, and Alan Banks is a
working foreman.

In July 2001, the Union commenced an organizing effort among Respondent’s
technicians at FSF. Pursuant to the Union’s July 25, 2001 petition in Case 20-RC-17692, an
election was held on October 2, 2001. A majority of the valid votes counted were for the Union.
On October 19, 2001, the Union was certified as the exclusive collective-bargaining
representative of the following appropriate unit of employees:

All full-time and regular part-time journeymen and apprentice service technicians,
foremen and quality control technicians employed by [Respondent] at [FSF];
excluding all other employees, office clerical employees, receptionists, cashiers,
porters, drivers, detailers, service directors, service operations managers, parts
directors, guards and supervisors as defined in the Act.

3 James also retained his duties as service and parts director of Oakland facilities.

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Following the certification, Respondent and the Union began negotiations on November
13, 2001. At the time of this trial, no contract had been reached. The parties hold bargaining
sessions roughly once per month. Respondent’s negotiating team includes vice-president and
general manager Richard Fisher, service and parts director Greg James, and Respondent’s
labor attorneys. The Union’s negotiating team initially included business representative Mike
Cook, District Lodge 190 organizer Jesse Juarez, and technician John Sao. After the discharge
of Sao in April 2002, technician Abieson (“Abby”) Tsang became a member of the Union
negotiating team.

B. Discharge of Sao

Sao began his employment with Respondent as a technician at FSF in September 2000
and was discharged on April 5, 2002 for the stated reason that he failed two training courses.
Sao initially performed what he called “heavy duty” work, such as transmission or engine repair
and head gasket repair. Sao testified that “later on” he performed electrical work on air
conditioning systems and the check engine light system. Sao’s initial wage was $20 per hour.
On November 1, 2001, according to his personnel file, he received a raise from $20.30 to
$20.60 per hour. In late November 2001, his wage was increased from $20.60 to $25.80 per
hour. This wage corresponds to that earned by a “Level II” technician while Sao’s prior wage
corresponds to that earned by a “Level III” technician.

In all cases turning on employer motivation, causation is determined pursuant to Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989
(1982). Initially, the General Counsel must prove inferentially, by a preponderance of the
evidence, that protected conduct was a “motivating factor” in the employer’s decision. To
establish this showing, the General Counsel must adduce evidence of protected activity,
Respondent’s knowledge of the protected activity, Respondent’s animus toward the protected
activity, and a link or nexus between the protected activity and the adverse employment action.
Farmer Bros. Co., 303 NLRB 638, 649 (1991).

Sao’s Union Activity and Respondent’s knowledge

There is no doubt that Sao was an active supporter of the Union. Sao initially learned of
Union organizational activity at the facility in July 2001. He informed employees of the date and
time of union meetings. Sao distributed union authorization cards to employees. Sao asked
service foreman Vince Van Hoven and working foreman Alan Banks to sign a card and to attend
Union meetings. Van Hoven is admitted to be a supervisor and agent of Respondent. Sao wore
Union buttons and placed a Union bumper sticker on his toolbox. By letter of July 26, 2001, the
Union notified Respondent that employees who supported the Union were participating in an in-
house organizing committee. Fifteen of the seventeen technicians were listed on this letter, with
Sao’s name first on the list.

Technicians Eugene Hom, Lawton Louie, Abieson Tsang and Wojciech Dziembowski
were also active Union supporters. They distributed authorization cards and helped organize
meetings. All of them openly wore Union buttons and placed bumper stickers on their toolboxes.

Following the Union’s certification in October 2001, the parties began negotiating in
November 2001. Sao was a member of the Union’s negotiating committee. It is undisputed that,
at least by this time, Respondent was aware of Sao’s Union activity.

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Animus

Evidence of animus toward employees’ union support has been shown by a
preponderance of the evidence. Thus, technician Dziembowski recalled a conversation with
Vince Van Hoven outside the Folsom Street facility while he was smoking a cigarette.
Technician Danny Lunt and dispatcher Rick Rothe were also present. Dziembowski believed
this conversation occurred between the filing of the representation petition and before the
election. Van Hoven stated that the employees did not have any chance of unionizing because
Mr. Barsotti (the owner) would close the shop.4 Van Hoven recalled making a similar statement
to Dziembowski after the Union vote was counted. He told Dziembowski that he did not believe
Barsotti would sign with the Union based on previous experience with the Union in the 1980s.
Van Hoven denied telling Dziembowski that he had no hope for the Union at Respondent. Van
Hoven’s statement that he did not believe Respondent would sign a union contract, which I
credit, is evidence of animus.5

At a pre-election meeting held on September 19, 2001, technician Sao told general
manager Fisher that this was the first time employees had ever seen Fisher. Sao also said that
management had not taken concerns seriously until the threat of a union occurred. Many
employee concerns were noted. The General Counsel adduced evidence from Sao, Hom and
Dziembowski regarding a statement attributed to Fisher regarding terrorism. This occurred at a
pre-election meeting conducted by Respondent on or about September 19, 2001. Sao’s6 and
Hom’s7 testimony is extremely vague and Dziembowski’s8 makes no sense. Fisher recalled
telling the group that Respondent would try to address all concerns relating to the technicians
whether there was a Union or not. He stated that he did not believe that the management team
would be influenced by any sorts of dissent or terrorist activity. Fisher explained that for about
three months prior to his making this statement, there had been problems with cars being

4 Dziembowski’s affidavit to the Labor Board did not mention this statement.
5 Technician Louie recalled that Van Hoven told him, about one to two months prior to the
election, “Dick Fisher will fire everybody before he went Union.” Van Hoven denied making such
a statement to Louie. I credit this denial. Van Hoven was a candid witness. His overall
demeanor convinces me that his denial of Lowie’s testimony is true, especially in light of Van
Hoven’s admission of his statement to Dziembowski.
6 In September 2001, Respondent held four pre-election meetings during lunch. Fisher
spoke at two of these meetings. Dziembowski and Sao engaged Fisher in discussion about the
benefits of union representation during one or both of these meetings. According to Sao, Fisher
became visibly upset and his hands began shaking. Sao could not remember what he or
Dziembowski said. He remembered that Fisher responded with a remark about terrorism.
7 Hom recalled an exchange between Fisher and Sao but did not recall the subject matter
except that it was about having a Union.
8 Dziembowski recalled that he spoke up at one or two of the pre-election meetings after
Fisher addressed the group. Dziembowski told the group that he did not trust Fisher or
management to react to problems in the work place unless the Union was present.
Dziembowski recalled that Sao spoke up in support of Dziembowski’s position. According to
Dziembowski, Sao also noted that this was the first time that Fisher had addressed employees.
Sao said the employees just wanted the same thing the Oakland unionized employees had.
Dziembowski recalled that Fisher responded, “the crew in Oakland is very good, he said that he
believes that the majority of the crew in Folsom Street is good and good performance, but he
said you guys notice September 11, on base of September 11, we cannot say all are terrorists.”
Dziembowski speaks English as a second language.

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“keyed”9 at FSF and one instance at KSG. This was what he was referring to by using the term
“terrorist.” Fisher denied that he was upset or visibly shaking when he made this remark. I credit
Fisher’s testimony that he told assembled employees at a pre-election meeting that
management would not be threatened by any dissent or terrorist activities. This remark is too
ambiguous to attribute to union animus.

On the day following the pre-election meeting, Sao received an employee warning report
and a memorandum from Fisher beginning, “One of the things pointed out to me yesterday was
that there were some concerns that . . . management should be aware of.” Fisher continued that
a concern of his was Sao’s excessive absenteeism. Fisher stated that “effective immediately”
Sao must provide a written doctor’s explanation for any absences that were not approved in
advance.

Although there is no allegation that the employee warning report is violative of Section
8(a)(3), this action does show animus toward Sao’s Union activities. I make this finding
consistent with the Wright Line analysis. Thus, Sao spoke at a pre-election meeting in support
of the Union. Fisher demonstrated animus for this behavior in his memorandum statement that
employees had told him at the pre-election meeting that there were concerns which needed
attention. Immediately, Fisher looked into Sao’s absentee record, a record which had previously
been tolerated. The timing of this action, together with the evidence of knowledge and animus,
support an inference that Sao’s Union activity was a motivating factor in issuing the warning
report. There is no evidence that Sao’s absences were a source of disciplinary concern until he
spoke up at the pre-election meeting. In the context of analyzing the warning notice for evidence
of animus, it is unnecessary to determine whether Respondent has shown that it would have
issued the warning notice in the absence of Sao’s Union support. It is sufficient that a motivation
for issuing the warning notice was Sao’s Union support.

Immediately after the election, foreman Van Hoven tore the Union bumper sticker from
Sao’s toolbox. Sao asked Van Hoven why he had done this and Van Hoven replied, according
to Sao, “You guys won the election. You don’t need this anymore.” Technician Lawton Louie
recounted a similar exchange with Van Hoven. Similarly, technician Eugene Hom testified that
about one week after the election, Van Hoven asked Hom to remove the Union bumper sticker
from Hom’s toolbox. Hom refused. Van Hoven responded, “You are a bunch of pussies.” Van
Hoven agreed that he asked employees to remove stickers from their toolboxes. These included
other manufacturers’ stickers, other dealerships’ stickers and Union stickers. Although Van
Hoven attempted to characterize his actions in removing bumper stickers as part of his general
policy, he did not deny his contemporaneous remarks when removing the union bumper
stickers. His statements together with his actions constitute evidence of animus.

Sao testified that several months after the election, service and parts director James told
him to “step down” and forget about the Union. According to Sao, James said, "You know, we
don't need a union here. I can improve better and I can, you know, make the change better."
Then Sao asked James, "You allowed it [the Union] in Oakland." And James responded,
"Oakland is different than San Francisco." James did not rebut this testimony. I find that James
told Sao to “step down” explaining that there was no need for a union at FSF because, in
James’ view, he could improve the facility without a union. This constitutes evidence of union
animus.

9 A car is “keyed” by forcefully dragging the sharp end of a key along the body of the car to
make a scratch in the paint and finish.

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While the bargaining committees were waiting to begin their initial meeting in November
2001, general greetings took place. In the course of these exchanges, Sao extended his hand to
Fisher to shake hands. Fisher refused to shake his hand. Business representative Cook said,
“Well, the election’s over, let’s put hard feelings away, and let’s go ahead and move toward a
contract.” Cook overheard Fisher respond in a soft voice that he did not like to shake the hand
that stabbed him in the back.

At a later meeting in December 2001 or January 2002, Sao once again attempted to
shake hands with Fisher. When Fisher refused, according to Sao, he joked, “don’t worry, I don’t
have any germs.” Fisher responded, according to Sao, “don’t worry. Your job is not secure.” Sao
asked what was going to happen. According to Sao, Fisher responded, “You will find out.”

Fisher denied this verbal exchange with Sao but did not dispute that he failed to shake
hands with Sao when given the opportunity. Fisher recalled that he told Cook that he did not
view negotiations as a social occasion and he was not sure that hypocrisy was an appropriate
way to begin negotiations. Fisher specifically denied that he ever told Cook he would not shake
hands with Sao because Sao stabbed him in the back. Fisher also denied telling Sao that he did
not have a future at Respondent. I credit Fisher’s denial of telling Sao that his job was not
secure. As to the disparity between Cook and Fisher regarding whether Fisher said he did not
want to shake the hand that “stabbed him in the back” or said he did not believe “hypocrisy” was
an appropriate way to begin negotiations, both statements have the same import: that is, Fisher
maintained animus toward Sao for his Union activities.

In the spring of 2002, Dziembowski overheard a technician ask foreman Vince Van
Hoven for a droplight. Van Hoven responded that he was attending to this. Sao, who was
standing nearby, interjected that he had asked Van Hoven for a droplight earlier and Van Hoven
had failed to provide it. Van Hoven countered, “You are not a fucking shop steward to talk to me
like this.” Sao responded, “Calm down man.” This exchange is evidence of union animus.

In summary, I find animus toward Sao’s Union activities based upon Respondent’s
foreman’s statement that he did not believe Respondent would sign a Union contract;
Respondent’s warning report to Sao sent, at least in part, in reaction to employees’ pre-election
statements; Respondent’s foreman removing union bumper stickers from employee toolboxes
on the day after the election; Respondent’s service and parts manager’s statement to Sao to
“step down” because he could improve FSF more quickly without a union; Respondent’s general
manager’s refusal to shake hands with Sao at the beginning of negotiations, viewing it as an act
of hypocrisy; and Respondent’s foreman telling Sao not to talk with him as if Sao were a Union
steward.

Respondent’s Training Requirements

Respondent’s operations are governed by its relationship with Mercedes Benz USA
(MBUSA). Consistent with MBUSA guidelines entitled “Systems/Diagnostic Technician
Development Plan (TDP),” Respondent requires that all newly hired technicians regularly attend
training classes. Credits are awarded for successful completion of each course. Course
completion also controls the level a technician attains.

The TDP requires initially that each technician attend a five-day course given in
Houston, Texas, and score at least 70 out of 100 points on the exit exam. The course, Technical
Product Introduction (TECH 501), must be successfully completed in order for the technician to
continue in Respondent’s employ. James requires completion of this course by all lube persons,
beginners, apprentices, Level I-IV technicians and any other person who works on the cars.

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A self-study guide is routinely provided to technicians three to four weeks prior to their
taking TECH 501 and each successive class. In order to take the next course, the technician
must return the self-study guide for the last course completed. In addition to these self-study
guides, advance training for the course is also supplied through Net Star, a MBUSA web site
available to technicians at the facility or from home. Following successful completion of Net Star
programs, technicians are given tokens of success, such as a pack of playing cards or a set of
dominoes. These tokens are mailed from MBUSA and given out by Respondent at regular
safety meetings.

Consistent with the TDP, Sao attended the TECH 501 training course in September
2000. He received a passing score of 78.3 points of a possible 100. Thus, he received 5 credit
points for successfully completing the course.

Respondent next enrolled Sao in, “Electrical Fundamentals, TECH 502” TECH 502 is a
basic introduction to electrical operating systems. Sao attended this course from April 9-13,
2001. He failed the test given at the end of this course with a score of 49 of 100 possible points.
About two percent of technicians nationwide receive failing scores on this test.

Sao testified that he was not given a self-study manual prior to attending the TECH 502
course. He also testified that he did not perform any Net Star self-study exercises for the
course. He stated that he only learned he would be attending the course about one week prior
to the beginning of the course. Neither did he observe a notice to employees on the bulletin
board setting out a training schedule for specific employees nor did he observe such notice at
the employee time clock.

After learning about the class, Sao testified that he “tried” to ask a manager, he could not
remember whom, for something to study for the course. Nothing was provided, according to
Sao. From this vague and self-serving testimony, I deduce that Sao did not ask for study
materials.

James testified that he typically announces to all technicians when new programs are
available on Net Star. According to James, he makes these announcements during safety
meetings. James was certain that Sao received all training materials for TECH 502 because the
office receives a set of them for each technician for each course. James hands these out and if
the technician is not present to receive the materials, the materials are sent back to the office.
Although James had no independent recollection of specifically handing training materials to
Sao for TECH 502, he also did not recall that Sao’s training materials were left in the office.

Additionally, MBUSA sends postcards to all technicians with a pass code for access to
Net Star. Sao testified that he never received a code and never asked for one. He knew a code
was needed to access the system. Sao recalled receiving a postcard but he did not know there
was a code on it. Sao thought he might have received such a postcard once a month but he did
not read them.

At the end of the TECH 502 course, Sao was told in Houston that he received a failing
score. Sao initially testified that when he returned to FSF, he immediately notified foreman
Vince Van Hoven10 of his failing score. According to Sao, Van Hoven told Sao not to worry
10 Van Hoven is an admitted supervisor and agent of Respondent pursuant to Sec. 2(11)
and (13) of the Act. He is also a member of the bargaining unit.

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about the score. On cross-examination, Sao testified that he never told Van Hoven about his
failing score. Van Hoven agreed that Sao did not tell him that he failed TECH 502. Sao then
testified that about three weeks after completing the course, he informed former service director
Karl Goertzen11 of his failing score. According to Sao, Goertzen told Sao not to worry about the
score. Goertzen did not mention to Sao that the score would impact his employment status
according to Sao. Goertzen did not testify. It is impossible to credit Sao’s testimony regarding
which he told, if anyone, and when he made such a disclosure. I find, consistent with James’
testimony, that Sao did not tell anyone that he failed the TECH 502 course. I further find,
consistent with James’ testimony, that Respondent did not access online information regarding
Sao’s score. Rather, I find that unless Respondent heard otherwise, it assumed that its
technicians had successfully completed each course.12

The TDP states that if a technician fails TECH 502, “additional preparation required
SPOM [service and parts operation manager] consult with education center supervisor.” There
is no dispute that the TDP, a MBUSA plan, takes no position regarding what, if any, disciplinary
action is appropriate in the circumstances of failure of TECH 502. Any action taken is solely at
the discretion of the dealership or Respondent in this case.

The TDP envisions that employees complete a 5-day course, Systems Training I, TECH
507, given in Rancho Cucamonga, California.13 The controller area network or CAN system is
treated in TECH507. The CAN system allows all controller units in the vehicle to communicate
with each other.

Despite his failure of TECH 502 in April 2001, on March 25, 2002, Sao began the 5-day
course in TECH 507. He testified that he did not receive a self-study guide for this course.14 I do
not credit Sao’s testimony in this regard. Rather, I find that he received pass codes for Internet
study and received self-study materials in the regular course of business. Sao scored 53.6 out
of 100 possible points on the exit exam for this course. When Sao returned to work on the
following Monday, April 1, 2002, foreman Van Hoven, a member of the bargaining unit, asked
Sao how he did with the training. Sao replied that he failed TECH 507. Van Hoven told Sao that
failure was not good.

Van Hoven then consulted the computerized training information from MBUSA and
discovered that Sao had failed TECH 502 as well as TECH 507. Van Hoven printed this
information and took it to James. In Van Hoven’s experience, none of Respondent’s technicians
11 Goertzen is not alleged to be a supervisor or agent of Respondent within the meaning of
Sec. 2(11) or (13) of the Act. Goertzen retired from Respondent’s employ in March 2002.
12 This finding is supported, rather perversely, by my conclusion that had Respondent
known of Sao’s April 2001 failure of TECH 502 in September 2001, when Fisher issued the
disciplinary warning based on absenteeism, this failure would have been mentioned then.
13 The course was provided in Houston, Texas at one point in time. This location is still
reflected on the TDP in the record. Testimony indicates that the location has recently been
switched to Rancho Cucamonga, California. Sao took the course at this location.
14 Indeed, when Sao was shown the self-study guide, after reviewing it, he stated that many
of the questions were the same that were on the exit exam. Sao opined that if he had had the
self-study guide, he might not have failed.

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had ever failed one training course, much less two.15 Van Hoven explained to James that this
had never happened before and he did not know what to do. James told Van Hoven that Sao’s
failing two tests was unacceptable. James had never seen scores this low. James then reported
the matter to Fisher, recommending discharge of Sao for failing two classes, stating, “We can’t
continue to let him work on our cars.” “We have to terminate him.”

There was no doubt in Fisher’s mind that the Union would question Sao’s discharge.
Fisher described Sao as a “militant” listener and, in dealing with Sao’s discharge, Fisher viewed
Sao as “a gentleman who certainly thought he had a privileged stats and did not need to follow
the normal operating procedures of the rest of the shop.” Prior to discharging Sao for failing two
training classes, Fisher asked James to examine Sao’s attendance.

In the meantime, Fisher contacted various MBUSA training coordinators regarding Sao’s
test scores. Although no recommendation was made by MBUSA regarding discipline or
discharge of Sao, these representatives voiced a concern regarding future performance of
warranty work for MBUSA by Sao. Fisher ultimately approved James’ recommendation to
discharge Sao.

The Discharge

Sao was informed of his discharge on April 5, 2003. Foreman Van Hoven told Sao to
report to the office of service and parts director James. When Sao arrived, dispatcher Richard
Rothe was present as well as James. Sao asked if he was being punished. According to Sao,
James responded, “maybe,” and handed Sao his final paycheck. Sao asked if he was
terminated. James responded, “Yes. You failed the class. You terminated yourself.” Van Hoven
recalled that James handed Sao a packet of papers including his final check saying, “John, I’m
letting you go, failing two courses is not acceptable, I can’t use you as a technician. Please go
to [the Van Ness facility] and finish the paperwork.” Sao responded, “You can’t fire me.” Rothe
recalled that James told Sao he was discharged and Sao said, “Something to the effect of you
can’t do this.”

James recalled telling Sao that his failing scores were unacceptable and he was going to
have to terminate him. James recalled adding that Sao had terminated himself by letting
Respondent down. James gave Sao his final paycheck and numerous documents connected
with termination including 401(k), insurance, and COBRA. James told Sao to take them to the
VNF to complete. Sao left the office, threw the packet of documents back at James, taking only
the final paycheck and leaving the additional paperwork. James recalled that Sao said, “You
can’t fire me,” and James retorted that he had already done that.

Upon leaving the office, Sao consulted with technicians Hom and Dziembowski.
Together, they returned to James’ office with Sao. James summoned Van Hoven back to the
office. Either Sao or Dziembowski asked James for something in writing regarding the
discharge. James responded that he did not have to supply anything in writing. According to
Sao, James reiterated that Sao failed the class and was terminated. This was all the Sao
recalled.

15 Van Hoven also contacted Ray Fausel at the MBUSA training center in Rancho
Cucamonga. In response to Van Hoven’s request for direction, Fausel said the employee should
not be sent for further training and asked whether Van Hoven would want the employee working
on Van Hoven’s car. Fausel did not give specific direction or guidance regarding discipline.

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Hom and James recalled Sao’s second meeting with James and Van Hoven in
somewhat more detail than Sao. According to both Hom and James, James told Sao that
Respondent did not have to give Sao anything in writing. Dziembowski asked James to give
Sao another chance. Dziembowski told James that the other technicians would help Sao.
According to Hom, James responded that his hands were tied. The decision had come from
above. James repeated that Sao was not fired. He fired himself. James told the technicians that
he had already talked to the Union about the discharge. Dziembowski testified in agreement
with Hom. Additionally, Dziembowski testified that he asked James if Sao’s failing the exams
was the only reason for Sao’s discharge. James said it was. Further, according to Dziembowski,
he spoke to James later that day and again asked if anything could be done. James said no, it
was out of his hands.

James recalled telling Sao, Hom, and Dziembowski that Respondent could do nothing
else. The decision was made. Sao terminated himself. He did not prepare. Sao let his actions
speak for him and James was not going to reinstate Sao. James testified that the only reason
he relied upon for discharge of Sao was failure of the TECH502, failure of TECH507, and Sao’s
failure to inform him of the failure. James stated that Sao’s attendance record did not help him.

An employee exit form completed by Sao and James at the April 3, 2002 negotiation
session listed “failure to meet employer expectations” and “poor performance (no misconduct)”
as the “primary reason” for discharge and “absenteeism” as “a significant concern over the
years.”

Was Sao’s protected activity a motivating factor in his discharge?

I find that the General Counsel has not shown by a preponderance of the evidence that
Sao’s protected activity was a motivating factor in Respondent’s decision to discharge Sao.
Initially, I note that Respondent does not dispute either Sao’s Union activity or its knowledge of
that activity. Sao’s Union activity was well known to Respondent. Sao solicited shop foremen
Banks and Van Hoven, members of the bargaining unit and admitted supervisors, to sign Union
authorization cards. Sao wore Union buttons and displayed a Union bumper sticker on his
toolbox. Sao’s name was the first name on the Union’s July 2001 letter to Respondent setting
forth the members of the in-house organizing committee. Finally, Sao was the only employee
member of the Union negotiating committee.

Second, I find that Respondent harbored animus toward Sao’s Union activity. I rely
particularly on Fisher’s testimonial characterization of Sao as a “militant listener;”16 Fisher’s
refusal to shake hands with Sao at the beginning of negotiations because Fisher was not sure
hypocrisy was an appropriate way to begin negotiations; the September 20 warning to Sao; Van
Hoven’s removal of Union bumper stickers; James’ statement to Sao to “step down” because he
could improve FSF more quickly without a union; Van Hoven’s statement to Sao not to talk with
him as if Sao were a Union steward; and Van Hoven’s statement to Dziembowski that he did not
believe the owner would sign a contract with the Union based on experience with the Union
during the 1980s.17

16 It is reasonable to infer that Respondent considered Sao to be a disruptive influence
because of his union support and that the phrase “militant listener” was a euphemism for Sao’s
prounion sentiments. See, James Julian Inc. of Delaware, 325 NLRB 1109 (1998).
17 Van Hoven’s statement is not alleged as an unfair labor practice. By the time of the
hearing, it was barred by Sec. 10(b) of the Act. Nevertheless, this statement may still serve as
evidence of union animus.

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Having proven protected activity, knowledge of protected activity, and animus toward the
protected activity, it remains that the General Counsel prove a link or nexus between the
protected activity and the adverse employment action. Of course, direct evidence of unlawful
motivation is rarely available. Thus, General Counsel may rely on an inference of unlawful
motivation. Abbey’s Transportation Services, 284 NLRB 698, 701 (1987), enfd. 837 F.2d 575
(2d Cir. 1988). This inference, based on the totality of the circumstances, may be supported by
evidence of the timing of the adverse employment action,18 blatantly disparate treatment of the
alleged discriminatee in imposing the adverse employment action,19 and/or pretextual reasons
for the adverse employment action.20 Nevertheless, the totality of circumstances must show
more than a mere suspicion that union activity was a motivating factor in the adverse
employment decision. International Computaprint Corp., 261 NLRB 1106, 1007 (1982).

Initially, I note that pretext is not argued nor is it present herein. Further, the timing of
Sao’s discharge does not support an inference of unlawful motivation. Sao’s Union activity
commenced in the summer of 2001. He began serving as a negotiator in November 2001. Six
months later, in April 2002, Sao was discharged. The timing of the discharge is too remote to
support an inference that Union activity was a cause for the discharge.

Finally, there is no evidence of any disparate treatment, blatant or otherwise, in Sao’s
discharge because no other employee had ever failed one, much less two training classes.
General Counsel notes that MBUSA reported to Respondent that another mechanic laughed
inappropriately and slept at times during a training course. Respondent did not discipline this
mechanic. I do not find these circumstances similar to Sao’s. General Counsel also argues
disparate treatment by Respondent in failure to give Sao a pay raise at the same time that three
other mechanics received pay raises shortly before the election. General Counsel avers that the
three pay raises were given in an attempt to influence employees’ votes and that Sao did not
receive a pay raise because Respondent knew Sao’s vote could not be influenced. This
argument ignores the fact that the three mechanics that received raises were just as actively
supporting the Union as Sao. I can draw no inference that because Sao’s pay raise was
delayed, his discharge for failing two training courses was a pretext or motivated by his
protected activity.

General Counsel argues that discriminatory motive may be inferred from the fact that
Respondent clearly retaliated against Sao for his Union activity when Sao was given a warning
for attendance in September 2001. Even if this were true, it is impossible to make the logical
leap between a discriminatorily motivated action in September 2001 for attendance and an
action in April 2002 for a totally different reason, failure of two training courses. General
Counsel’s argument depends to some extent on Respondent’s discharge in April 2002 being
based on attendance. The evidence shows, however, that the discharge was based principally,
if not solely, on Sao’s failure to pass two training courses.

18 See, e.g., Masland Industries, 311 NLRB 184, 197 (1993); Limestone Apparel Corp., 255
NLRB 722, 736 (1981) enfd. 705 F.2d 799 (6th Cir. 1982).
19 See, e.g., Watkins Engineers & Constructors, Inc., 333 NLRB 818, 819 (2001); New Otani
Hotel & Garden, 325 NLRB 928 fn. 2 (1998).
20 Shattuck Denn Mining Corp. (Iron King Branch), 151 NLRB 1328 (1965), enfd. 362 F.2d
466 (9th Cir. 1966). The court reasoned that a finding of pretext allows an inference that another
motive prompted the adverse employment action – a motive the employer wished to conceal;
i.e., an unlawful motive. 362 F.2d at 470.

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In sum, although Sao’s union activity and support were well known at the time of his
discharge and although Respondent harbored animus toward Sao for his union activity and
support, there is insufficient evidence upon which to base an inference that union activity was a
motivating factor in Respondent’s decision to discharge Sao. The September 2001 warning for
poor attendance, even if discriminatorily motivated, and the delay of a pay increase for Sao from
September 2001 to November 2001, simply do not supply a sufficient basis to form an inference
that a motivation for the discharge was union animus. Moreover, General Counsel’s argument
that general manager Fisher was determined to fire Sao under any circumstances is not
supported by the record. The record reflects that James was determined to fire Sao for failing
two courses and that Fisher was more cautious in approving James’ recommendation.

Would Sao have been discharged in any event?

Moreover, even were the evidence sufficient to warrant an inference of unlawful
motivation, Respondent has shown that it would have discharged Sao in any event. Thus, if the
General Counsel makes an initial showing that unlawful motivation may be inferred, the
Respondent may rebut the showing by proving that animus played no part in its action or by
establishing that it would have taken the same action even in the absence of the employee’s
protected conduct. Wright Line, supra, 251 NLRB at 1089. It is insufficient to merely set forth a
legitimate reason for its actions. Rather, the employer must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the protected
conduct. T & J Trucking Co., 316 NLRB 771 (1995), enfd. mem. 86 F.3d 1146 (1st Cir. 1996).

General Counsel argues that

The issue here is whether, in the face of overwhelming evidence showing that
[Fisher] had been out to get Sao because of his union activities, Respondent
would have taken the drastic step of firing him, as opposed to some lesser step,
for failing the second exam, even had Sao not incurred Fisher’s wrath through his
union activities.

General Counsel notes the complete absence of written policies or past practices
regarding appropriate action coupled with an apparent lack of concern regarding Sao’s failure of
an earlier test and Fisher’s ordering a look at Sao’s attendance even after the second test was
failed, to bolster the discharge, prove that Respondent would not have taken the drastic step of
firing Sao but for Sao’s union activity.

General Counsel’s assertion that general manager Fisher was “out to get” Sao because
of Sao’s Union activities overstates the case. However, there is ample evidence upon which to
form a conclusion that Fisher maintained personal animus toward Sao, in part, because of Sao’s
protected activities,

However, the evidence does not support General Counsel’s argument that Respondent
would not have discharged Sao in any event. There were certainly no past practices regarding
failure of training examinations because no employee had previously failed a training exam.
Written policies regarding failure of the exam would assumably have come from Respondent, if
necessary. However, it is not incumbent upon an employer to issue such written policies.
Indeed, when no prior employee had ever failed a training exam, such a written policy might not
occur to even the most thorough human resources professional. I can draw no conclusion from
the lack of written policies or past practices in this case.

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Similarly, General Counsel’s argument that Respondent apparently lacked concern
about Sao’s first failure of a training course presumes knowledge of this failure. I have
previously found that Respondent did not have knowledge of Sao’s earlier failure.

Finally, the record amply supports a finding that James, not Fisher, made the
recommendation to discharge Sao. Fisher ordered research into attendance and MBUSA
policies before approving James’ recommendation. Fisher’s testimony that he did this because
he knew the union would challenge Sao’s discharge is fully credited. All witnesses to the
discharge conversations and all written documents supporting the discharge uniformly indicate
that Sao was discharged for failing the training courses. There are no shifting reasons for
discharge given. Absenteeism was a concern, and nothing more.

C. Failure to bargain

General Counsel alleges that Respondent made two changes in unit employees’ wages,
hours, or terms and conditions of employment, without first providing notice to the Union and an
opportunity for the Union to bargain about these changes. The first allegation involves
assignment of work, which was the same or similar to that performed by unit employees, to non-
unit employees at a different facility. The second allegation involves payment of unit employees
for nonproductive time (“dead time”) spent looking for cars.

Following the Union’s certification on October 19, 2001, the parties commenced
bargaining for an initial contract in November 2001. At the time of the hearing, the parties had
not reached agreement for a final contract.

Section 8(d) of the Act requires that the parties “meet . . . and confer in good faith with
respect to wages, hours, and other terms and conditions of employment.” An employer that
does not comply with Section 8(d) may violate Section 8(a)(5) of the Act. It is unlawful for an
employer to circumvent its bargaining obligation by making unilateral changes in employees’
wages, hours, or terms and conditions of employment. NLRB v. Katz, 369 U.S. 736, 743 (1962).
Generally, an employer may not make unilateral changes in wages, hours, or terms and
conditions of employment in the absence of an overall impasse in bargaining. Litton Financial
Printing Div. v. NLRB, 501 U.S. 190, 198 (1991); Pleasantview Nursing Home, 335 NLRB No.
77, slip opinion at 2 (2001).

1. Dispatch of Work to the Twelfth Street Facility (TSF)

In order to meet the growing needs of its customers in San Francisco, in the summer
and fall of 2001, Respondent began construction of TSF, a new service and parts facility on
Twelfth Street, between Folsom and Howard, about 1-2 blocks from FSF. According to general
manager Fisher, TSF “was meant as a supplemental building to [FSF] and [CSF].” In July 2002,
Respondent opened and began operating TSF. No FSF employees were transferred to TSF.

At the same time, FSF was undergoing earthquake retrofitting. Additionally, between
April and October 2002, three technicians left or were discharged from FSF. None of these were
replaced. Service manager James made the decision not to replace these technicians in order
to provide extra stall spaces to the remaining technicians. There is no unfair labor practice
alleged regarding failure to replace these three technicians.

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By October 2002, TSF employed about 6 or 7 technicians. These technicians were
generally less experienced than the technicians at FSF. Dispatcher Rothe dispatched work to
TSF technicians from available cars that were brought for service to FSF.

TSF was initially discussed in negotiations in February 2002, when the Union questioned
whether contract recognition language should include TSF and whether opening TSF would
impact employees at FSF. Respondent stated opening TSF would not impact employees at
FSF. No agreement was reached to include TSF in the recognition language.

At either the June or July 2002 negotiation session, business representative Cook told
Respondent that the Union believed FSF unit work was being farmed out to TSF. Cook
referenced employee reports that work begun at FSF by unit technicians was being completed
at TSF by non-unit technicians and employee reports that work was being moved from FSF to
TSF. Respondent, through its attorney Hulteng or service manager James, denied that unit
technicians were being impacted. Hulteng stated that TSF was not designed to impact FSF in
any way, shape, or form. Hulteng explained to the Union that Respondent was simply taking on
extra work. Respondent consistently insisted on exclusion of TSF and CSF from contract
coverage.

Business representative Cook testified that TSF was next discussed at the negotiation
session on September 25, 2002. Cook presented Respondent with an information request
regarding TSF. Hulteng responded, “We’re not obviously doing bargaining unit work at [TSF].”
Cook also recalled that someone said TSF would not be doing work out of FSF. It was not going
to be that kind of work. “Not the kind of work that our people were doing, our bargaining unit was
doing.” Respondent replied to the information request on October 9, 2002, denying that the
opening of TSF had resulted in diversion or diminution of work performed by unit technicians at
FSF.

Although TSF was contemplated at the time of the Union campaign and subsequent
certification of the Union, TSF employees were not included in the certified bargaining unit.
There is no issue involved herein regarding whether TSF employees should be included in the
bargaining unit or whether TSF constitutes an accretion to the FSF bargaining unit. The General
Counsel specifically disavowed such a theory. Rather, what is at issue is whether Respondent
violated the Act in failing to bargain about dispatching unit work to TSF.

It is undisputed that non-unit technicians at TSF are performing the same work that FSF
unit employees perform. It is also undisputed that Respondent began dispatching work to TSF
without notice or opportunity to bargain being afforded the Union. Performance of bargaining
unit work by individuals other than bargaining unit employees is a mandatory subject of
bargaining. See, e.g., Geiger Ready-Mix Co. of Kansas City, 315 NLRB 1021, 1023 (1994),
enfd. in relevant part, 87 F.3d 1363 (D.C. Cir. 1996)(reassignment of unit work is a mandatory
subject of bargaining). However, even when a change involves a mandatory subject of
bargaining, there must be a “material, substantial and a significant” adverse impact on unit
employees’ terms and conditions of employment in order to constitute a violation. United
Technologies Corp., 278 NLRB 306, 308 (1986).

The record establishes that the dispatch of work to TSF had a material, substantial and
significant adverse impact on unit employees as a whole. Although not indicative of adverse

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impact, I note that prior to the opening of TSF, unit employees21 were on the clock, on average,
146.3 hours per month.22 After TSF opened, employees were on the clock, on average, 142.8
hours per month.23 This is not a material, substantial or significant change. Changes in
operating time, however, reflect a material, substantial, and significant change. Operating time
does not reflect hours on the clock. Rather, it reflects the amount of work completed by
employees. Operating time is utilized to calculate employees’ pay. Prior to the opening of TSF,
unit employees’ operating time averaged 225.1 hours per month.24 After TSF opened,
employees’ operating time averaged 205.8 hours per month.25 Even taking into consideration
the retrofitting of FSF, this drop in average operating time, with no commensurate drop in
average on-the-clock time, can only be explained by diversion of unit work to TSF.26 Moreover,
productivity, a function of on-the-clock or “actual” hours as compared to “operating” hours,
dropped from a monthly average of 154% prior to the opening of TSF, to 144% after the
opening of TSF.27 This occurred at the same time that total operating hours for TSF and FSF
was sharply increasing.28 Accordingly, I find that by diverting unit work to TSF without first
affording the Union notice and an opportunity to bargain regarding the decision to divert unit
work and the effect of this decision on unit employees violated Section 8(a)(1) and (5) of the
Act.

2. Payment for Retrieving Cars (Dead Time)

These facts are undisputed: Prior to James taking over FSF, parking congestion
hampered the technicians’ ability to retrieve cars. From at least September 2001 through the
beginning of 2002, Respondent compensated employees for loss of time looking for keys and/or
cars, known as dead time, by charging this time to a separate internal repair order. After James
became service and parts director in March 2002, he instituted changes, which dramatically
streamlined retrieval of cars. Sometime in early 2002, the separate internal repair order was no
longer utilized. What is unclear is whether the practice of paying employees for dead time was
abolished or whether the method of recording dead time on a separate internal repair order was
merely changed to recording dead time on each individual repair order.

In April 2002, technician Eugene Hom asked dispatcher Rothe if it was true that there
would be no more “dead time” pay. Rothe responded, according to Hom, that he should not
bother putting in for “dead time” because he would not get it anymore. According to Hom, he still
has to spend uncompensated time looking for cars but he has not put in for “dead time” pay
since March 5, 2002.

21 Thirteen unit employees remained constantly employed throughout November 2001 to
December 2002. The figures utilized do not include foremen Banks and Damazyn because
information for them was incomplete. Employees Sao, Dziembowski and Wieres left
Respondent’s employ during this time period. There is no allegation that failure to replace these
employees constituted an unfair labor practice. Accordingly, their hours are not included.
22 See Appendix A, attached.
23 See Appendix C, attached.
24 See Appendix B, attached.
25 See Appendix D, attached.
26 The drop from 225.1 to 205.8 average operating hours per month translates to an
average drop in monthly earnings for each unit employee of approximately $386 utilizing the
starting wage of $20 per hour.
27 See Appendix E, attached.
28 See Appendix F, attached.

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Technician Lawton Louie noticed around January 2002 that the shop repair order,
usually kept in a slot near the dispatch office, was missing. Louie testified he asked Rothe if
Respondent was still paying for dead time (billed on the shop repair order). Rothe responded,
no, “Greg [James] said there’s no more dead time looking for cars.”29

Technician Chris Seidel thought he was told by Rothe in May or June 2002 that he could
not “flag” time spent looking for a particular car, about one-half hour, because Rothe no longer
had an internal work order so there was no place to “flag” the time.30

Technician Kai M. Tsang testified that dead time no longer occurs because the parking
is now more organized. Tsang explained that all new cars are now parked at Bank of America
and all cars waiting for service are parked at the KSG across the street from FSR. Tsang
estimated that prior to organization of parking, he was compensated about two times per month
for time spent looking for a vehicle. In the past year, he has not had trouble finding any vehicles.
Tsang did not recall anyone telling him that compensation for time spent looking for cars would
no longer be paid. In the last year, the most time Tsang spent looking for a car was about 10
minutes. Sometimes he has to move one or two other cars to get to the car he needs. Ten
minutes is the amount of time built into Respondent’s job codes for retrieval of cars.

Dispatcher Rothe testified that a separate repair order is no longer utilized to
compensate technicians for dead time but technicians may still bill such time internally on the
vehicle repair order. Technicians have asked Rothe why the separate repair order is no longer
being used. Rothe recalled Lawton Louie specifically asking why the separate repair order was
no longer available. Rothe told Louie that Respondent was no longer using the separate repair
order. Rothe explained that dead time would instead be billed internally, individually on each
repair order. Rothe testified that while there was a separate repair order, Louie utilized it almost
daily while many technicians did not utilize the separate repair order at all.

A day or two after speaking with Louie, Rothe also spoke with Eugene Hom. Hom said,
“I hear we are not being paid for parking any more.” Rothe responded, “no, we are putting
parking on the repair orders. Yes, we don’t have the ticket any longer.” Rothe does not recall
any specific incidents of technicians needing additional time to look for vehicles since the
parking improvements were made. Rothe testified he has never denied a technician
compensation for nonproductive time.

Organizer Juarez recalled discussion of the dead time issue in negotiations in December
2001, the second negotiation session held by the parties. During that meeting, the Union noted
Respondent’s practice of paying employees for nonproductive time spent looking for and
retrieving cars by use of a charge on a shop repair order. Juarez told Respondent he
understood this practice had been abolished. Juarez claimed abolishing the practice was a
unilateral change.

29 Technician Dziembowski did not claim dead time except on one occasion in 2002, after
he heard it had been discontinued. At that time, he applied for “dead time” that he actually spent
outside smoking a cigarette. Not unsurprisingly, he was not compensated.
30 Seidel was the only witness to focus on current parking problems at KSG. According to
Seidel, even though James has streamlined operations at FSF, recently another dealership has
reclaimed parking around KSG and it “quite often” takes 45-50 minutes to retrieve cars at KSG.
Seidel also claimed KSG exits were totally jammed. This is contrary to all other evidence and is
discredited.

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According to Juarez, James responded that when he took over, he found
mismanagement that he intended to correct. James denied to Juarez that Respondent was no
longer paying for dead time and told Juarez that technicians would continue to be paid for dead
time but not through use of a shop repair order. James explained that technicians would
continue to be paid when it was necessary to spend excessive time looking for cars but he
anticipated that this time would be substantially decreased by the recently implemented parking
improvements in place. Hulteng assured the Union that there had been no change in
Respondent’s policy. Cook stated that the technicians felt like they were not being paid. James
repeated that there had been no change and asserted that Respondent still paid for dead time.
The parties moved on to other topics at that time. No further discussion of dead time has
occurred at the bargaining table.

In order to find a unilateral change, there must be evidence of a change in employees’
wages, hours, or terms and conditions of employment. Notwithstanding that dead time pay
undoubtedly constitutes a mandatory subject of bargaining, the record fails to support a finding
that Respondent has ceased paying employees for dead time. I credit Rothe’s assertion that he
told employees that dead time had to be billed to each repair order and that Respondent would
no longer maintain a separate internal repair order for dead time. I also find that due to parking
improvements, there is no longer a great deal of time spent retrieving cars. Accordingly, this
allegation is dismissed.

Conclusions of Law

1. Respondent European Motors, LTD. d/b/a Mercedes-Benz of San Francisco is
an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Machinists District Lodge 190, Local Lodge 1414, International Association of
Machinists and Aerospace Workers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time journeymen and apprentice service technicians,
foremen and quality control technicians employed by [Respondent] at [FSF];
excluding all other employees, office clerical employees, receptionists, cashiers,
porters, drivers, detailers, service directors, service operations managers, parts
directors, guards and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all material times herein the Union has been the exclusive collective-
bargaining agent of the employees in the above appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally diverting unit work to the newly-opened TSF, a mandatory subject
of bargaining, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7)
of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. This is certainly not a case in which Respondent’s unilateral
change involves complete reassignment of unit work. See, e.g., Torrington Industries, 307
NLRB 809 (1992). Nor is this a case involving relocation of unit work as envisioned in Dubuque
Packing, 303 NLRB 386 (1991), enfd. in relevant part sub nom. Food & Commercial Workers

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Local 150-A v. NLRB, 1 F.3d 24 (D.C. Cir. 1993), cert. dismissed 511 U.S. 1138 (1994).
Moreover, the issue in this case is not whether Respondent may dispatch work to non-unit
personnel. Rather, my finding is that Respondent may not dispatch work to TSF when such
dispatch diverts unit work from unit employees at FSF without first affording the Union an
opportunity to bargain about the decision to divert unit work and the effects of such diversion on
unit employees.

Accordingly, I recommend a remedy requiring that Respondent bargain with the Union
about the effects of diversion of unit work to TSF. I further recommend that Respondent make
whole employees for any loss of earnings which they may have sustained by reason of the
unlawful diversion of unit work to TSF, in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest in accord with New Horizons for the Retarded, 283 NLRB 1173 (1987).31
The bargaining and make whole remedies do not constitute my complete recommended
remedy.

The facts in this case do not warrant restoration of all TSF work to FSF. Once
Respondent opened TSF, Respondent’s total operating hours for the two facilities increased
sharply.32 However, the facts do warrant allocation of unit work to the bargaining unit, pending
bargaining, at a level, which insures that the bargaining unit does not lose additional operating
hours. See, e.g., Taylor Warehouse Corp., 314 NLRB 516 (1994), enfd. 98 F.3d 892, 903 (6th
Cir. 1996); A-1 Fire Protection, 273 NLRB 964, 967-968 (1984), enfd. sub nom. Road Sprinkler
Fitters Local 669 v. NLRB, 789 F.2d 9, 16-17 (D.C. Cir. 1986); Weltronic Co., 173 NLRB 235,
237-238 (1968), enfd. 419 F.2d 1120, 1123 (6th Cir. 1969).33 Accordingly, I recommend that
Respondent be ordered to allocate to FSF that level of work which will accord unit employees
the equivalent of about 146.3 on the clock or “actual” hours on average per month resulting in
about 225.1 “operating” hours on average per month, pending bargaining.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended34

ORDER

Respondent, European Motors, LTD. d/b/a Mercedes-Benz of San Francisco, its officers,
agents, successors, and assigns, shall cease and desist from refusing to bargain in good faith
regarding dispatching of unit work to the employees at Respondent’s newly-opened Twelfth
Street Facility and, pending bargaining, cease and desist from diverting unit work in a manner
that reduces unit employees’ operating hours.
31 At the close of the hearing, the parties had not yet completed negotiation of a collective-
bargaining agreement. Therefore, the record is silent with regard to whether Respondent is
currently contributing to any union fringe benefit funds. If this is the case, Respondent must also
reimburse the union fringe benefit funds for all amounts unlawfully withheld as a result of the
unlawful dispatch, with interest. See Merryweather Optical Co., 240 NLRB 1213 (1979).
32 See Appendix F, attached.
33 Due to cramped conditions, the Board modified the trial examiner’s remedy in Weltronic
Co. to allow respondent, at its option, to return unit work to the facility housing unit employees
pending bargaining. See, 173 NLRB 235 at n. 1. Such conditions are not present in this case.
34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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Respondent shall take the following affirmative action necessary to effectuate the
policies of the Act:

1. On request by the Union, bargain with it about the diversion of unit work to the
employees at Respondent’s newly-opened Twelfth Street Facility.

2. Pending bargaining, allocate unit work at Folsom Street Facility in order that unit
employees retain about 146.3 “actual” hours on average per month resulting in
about 225.1 “operating” hours on average per month

3. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.

4. Within 14 days after service by the Region, post at its Twelfth Street Facility in
San Francisco, California copies of the attached notice marked “Appendix G.”35
Copies of the notice, on forms provided by the Regional Director for Region 20,
after being signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt 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, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by
the Respondent at any time since July 2002.

5. 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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated June 19, 2003
San Francisco, California

_____________________
Mary Miller Cracraft
Administrative Law Judge

35 If this Order is enforced by a Judgment of the 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.”
JD(SF)–38–03
San Francisco, CA

APPENDIX A

“ACTUAL” TIMES
FOR INDIVDUAL UNIT EMPLOYEES
PRE-TSF OPENING

Employee
Name
Nov
2001
Dec
2001
Jan
2002
Feb
2002
Mar
2002
Apr
2002
May
2002
June
2002
Average
Bleyenberg 112.5 137 168.6 158 43.3 142.7 139.6 149 131.3
Canchola 135.1 130.2 151 98.3 167.7 158.5 162.9 152.5 144.5
Harjono 187 145.4 214.6 195.1 199.5 186.1 193 174.2 186.9
Hom 140.3 131.9 121.3 126.6 160 150.6 166.1 146.7 142.9
Ip 171.2 114.6 114.6 139.6 123.9 154.9 125.8 153.4 137.3
Lemus 145.2 146.9 150.9 102.9 157.7 167 151.4 153 146.9
Louie 119.8 121.4 148.9 130.9 155.3 152.9 118.9 138.4 135.8
Louis 147.3 127.5 128 153.6 169.6 169.3 169.2 116.6 147.6
Salgado 148.7 87.6 168 145.2 165.7 165 162.4 130.4 146.6
Seidel 157.6 55.6 172.8 162.6 149.2 146.4 180.3 141.7 145.8
Tsang, A. 152 161.7 161.7 150.5 172.3 173.9 166.1 136.3 159.3
Tsang, K. 150.7 141.9 169.5 149.9 30.6 161.5 159.8 158.4 140.3
Usi 135 120.3 121.3 124 161.1 165.2 164.4 99.1 136.3
Total 1902.4 1622 1991.2 1837.2 1855.9 2094 2059.9 1849.7 1901.5
(146.3
per ee)

JD(SF)–38–03
San Francisco, CA
APPENDIX B

“OPERATING” TIMES
FOR INDIVIDUAL EMPLOYEES
PRE-TSF OPENING

Employee
Name
Nov
2001
Dec
2001
Jan
2002
Feb
2002
Mar
2002
Apr
2002
May
2002
June
2002
Average
Bleyenberg 186.1 219.7 281.6 251.8 67.3 244.9 246.1 264.4 220.2
Canchola 192 164.8 200.4 146.9 232.2 215.2 209 209.7 196.3
Harjono 320.8 264.6 384.8 310.6 379.8 343.3 376.5 358 342.3
Hom 172.3 157.6 164.1 147.6 214.8 183.3 208.8 212.6 182.6
Ip 199.3 155.5 224.7 201.4 184.4 207.4 180.3 260.9 201.7
Lemus 152.3 153.7 169.4 102.8 207.9 208.7 199.5 201 174.4
Louie 274.2 209.4 285.7 246.2 287 294.5 257.8 274.8 266.2
Louis 268.4 218.1 250.7 263.3 323.5 289.8 369.7 218.6 275.3
Salgado 183.1 108.5 205.4 172.1 206.1 207.8 214.4 163.2 182.6
Seidel 231.2 104 238.1 202.5 195.1 189.6 254.6 197.8 201.6
Tsang, A. 213 187.5 270.4 238.4 308.5 277.5 274.3 259.4 240.0
Tsang, K. 260.3 235.1 296.2 265.1 50 263.7 289.6 260.2 226.4
Usi 161.7 161.3 164.1 166.9 233 237.4 234.7 151.3 188.8
Total 2814.7 2339.8 3135.6 2715.6 2889.6 3163.1 3315.3 3031.9 2925.7
(225.1
per ee)

JD(SF)–38–03
San Francisco, CA

APPENDIX C

“ACTUAL” TIMES
FOR INDIVIDUAL UNIT EMPLOYEES
POST-TSF OPENING

Employee
Name
July
2002
August
2002
September
2002
October
2002
November
2002
December
2002
Average
Bleyenberg 163.4 111.6 150.1 107.6 106.6 140.8 130
Canchola 165.4 129 141.1 113.7 100.9 137.9 131.3
Harjono 191.9 175.2 187.2 215.8 177.8 132.5 180.1
Hom 165.5 152.4 151 165.2 150.7 136.5 153.6
Ip 109.9 121 150.1 168.6 145.6 110.1 134.2
Lemus 162.3 164.8 109.3 167.8 99.7 129.3 138.9
Louie 144.6 87.5 126.5 131.9 132 15.4 106.3
Louis 161.4 126.1 130.9 167.4 140.5 132 143.1
Salgado 160.7 167.4 151.8 159.7 157.4 92.4 148.2
Seidel 177.6 178.2 160.4 185 160 90.3 158.6
Tsang, A. 161.8 161.5 137.7 159.5 137.4 113.4 145.2
Tsang, K. 176.1 173 138.4 157.7 145.9 135.8 154.5
Usi 165.6 127.6 146.8 110.7 147.7 92.6 131.8
Total 2106.2 1875.3 1881.3 2010.6 1802.2 1459 1855.
(142.8
per ee)
8

JD(SF)–38–03
San Francisco, CA

APPENDIX D

“OPERATING” TIMES
FOR INDIVIDUAL UNIT EMPLOYEES
POST-TSF OPENING

Employee
Name
July
2002
August
2002
September
2002
October
2002
November
2002
December
2002
Average
Bleyenberg 263.3 167.2 205.9 146.2 131.5 216.3 188.4
Canchola 222.1 194 223.3 160.9 147.2 170.3 186.3
Harjono 332.7 290 313.9 339.5 274.7 227.6 296.4
Hom 209.4 168.9 190.5 174.3 150 164.5 176.3
Ip 151 163.3 214.2 221.1 221.5 145.4 186.1
Lemus 191.7 187.8 114.8 187.2 115.6 153.3 158.4
Louie 303.1 169.4 266.1 237.8 247.2 45.4 211.5
Louis 342.7 212.9 155.4 296.5 242.8 280.9 255.2
Salgado 205.4 203.9 209.2 178.5 189.6 114.2 183.5
Seidel 243.2 249.3 159.3 239 218.7 116 204.3
Tsang, A. 269.5 244.1 226.5 276.1 209.3 193.1 236.4
Tsang, K. 284.5 261.3 178.3 217.3 178.3 190.3 218.3
Usi 238.4 177.3 190 147.3 170 121.2 174
Total 3257 2689.4 2647.4 2821.7 2496.4 2138.5 2675.1
(205.8
per ee)

JD(SF)–38–03

5

10

15

20

25

30

35

40

45

50
24

APPENDIX E

MONTHLY “OPERATING” TIME
AS A PERCENTAGE OF
MONTHLY “ACTUAL” TIME FOR FSF

PRE-TSF OPENING

Month
November 2001 148%
December 2001 144%
January 2002 157%
February 2002 148%
March 2002 156%
April 2002 151%
May 2002 161%
June 2002 164%
Average 154%

POST-TSF OPENING

Month Percentage
July 2002 155%
August 2002 143%
September 2002 141%
October 2002 140%
November 2002 139%
December 2002 147%
Average 144%

JD(SF)–38–03
San Francisco, CA

APPENDIX F

TOTAL OPERATING HOURS
FSF AND TSF COMBINED

PRE-OPENING

Month Total Operating Hours FSF
November 2001 2814.7
December 2001 2339.8
January 2002 3135.6
February 2002 2715.6
March 2002 2889.6
April 2002 3163.1
May 2002 3315.3
June 2002 3211.2
Average 2948.1

POST-TSF OPENING

Month Total Operating Hours TSF and FSF
July 2002 3576.1
August 2002 3743.1
September 2002 3906
October 2002 3960.8
November 2002 3728
December 2002 3240.9
Average 3692.5

JD(SF)–38–03
San Francisco, CA

JD(SF)–38–03

5

10

15

20

25

30

35

40

45

50
27
APPENDIX G

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain in good faith with Machinists District Lodge 190, Local Lodge 1414,
International Association of Machinists and Aerospace Workers, AFL-CIO, regarding diversion of unit
work to the employees at our Twelfth Street Facility.

WE WILL, on request, bargain with the Union about diversion of unit work to the employees at our
Twelfth Street Facility.

WE WILL make whole our Folsom Street Facility unit employees for any loss of earnings and other
benefits resulting from our failure to bargain with the Union before we began diverting unit work to the
employees at our Twelfth Street Facility, plus interest.

WE WILL, pending bargaining, restore to the employees at our Folsom Street Facility the same level of
work dispatched to them prior to our diversion of unit work.

EUROPEAN MOTORS, LTD. d/b/a MERCEDES-BENZ
OF SAN FRANCISCO
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (415) 356-5139.

JD(SF)–38–03
San Francisco, CA

APPENDIX A

“ACTUAL” TIMES
FOR INDIVDUAL UNIT EMPLOYEES
PRE-TSF OPENING

Employee
Name
Nov
2001
Dec
2001
Jan
2002
Feb
2002
Mar
2002
Apr
2002
May
2002
June
2002
Average
Bleyenberg 112.5 137 168.6 158 43.3 142.7 139.6 149 131.3
Canchola 135.1 130.2 151 98.3 167.7 158.5 162.9 152.5 144.5
Harjono 187 145.4 214.6 195.1 199.5 186.1 193 174.2 186.9
Hom 140.3 131.9 121.3 126.6 160 150.6 166.1 146.7 142.9
Ip 171.2 114.6 114.6 139.6 123.9 154.9 125.8 153.4 137.3
Lemus 145.2 146.9 150.9 102.9 157.7 167 151.4 153 146.9
Louie 119.8 121.4 148.9 130.9 155.3 152.9 118.9 138.4 135.8
Louis 147.3 127.5 128 153.6 169.6 169.3 169.2 116.6 147.6
Salgado 148.7 87.6 168 145.2 165.7 165 162.4 130.4 146.6
Seidel 157.6 55.6 172.8 162.6 149.2 146.4 180.3 141.7 145.8
Tsang, A. 152 161.7 161.7 150.5 172.3 173.9 166.1 136.3 159.3
Tsang, K. 150.7 141.9 169.5 149.9 30.6 161.5 159.8 158.4 140.3
Usi 135 120.3 121.3 124 161.1 165.2 164.4 99.1 136.3
Total 1902.4 1622 1991.2 1837.2 1855.9 2094 2059.9 1849.7 1901.5
(146.3
per ee)

JD(SF)–38–03
San Francisco, CA
APPENDIX B

“OPERATING” TIMES
FOR INDIVIDUAL EMPLOYEES
PRE-TSF OPENING

Employee
Name
Nov
2001
Dec
2001
Jan
2002
Feb
2002
Mar
2002
Apr
2002
May
2002
June
2002
Average
Bleyenberg 186.1 219.7 281.6 251.8 67.3 244.9 246.1 264.4 220.2
Canchola 192 164.8 200.4 146.9 232.2 215.2 209 209.7 196.3
Harjono 320.8 264.6 384.8 310.6 379.8 343.3 376.5 358 342.3
Hom 172.3 157.6 164.1 147.6 214.8 183.3 208.8 212.6 182.6
Ip 199.3 155.5 224.7 201.4 184.4 207.4 180.3 260.9 201.7
Lemus 152.3 153.7 169.4 102.8 207.9 208.7 199.5 201 174.4
Louie 274.2 209.4 285.7 246.2 287 294.5 257.8 274.8 266.2
Louis 268.4 218.1 250.7 263.3 323.5 289.8 369.7 218.6 275.3
Salgado 183.1 108.5 205.4 172.1 206.1 207.8 214.4 163.2 182.6
Seidel 231.2 104 238.1 202.5 195.1 189.6 254.6 197.8 201.6
Tsang, A. 213 187.5 270.4 238.4 308.5 277.5 274.3 259.4 240.0
Tsang, K. 260.3 235.1 296.2 265.1 50 263.7 289.6 260.2 226.4
Usi 161.7 161.3 164.1 166.9 233 237.4 234.7 151.3 188.8
Total 2814.7 2339.8 3135.6 2715.6 2889.6 3163.1 3315.3 3031.9 2925.7
(225.1
per ee)

JD(SF)–38–03
San Francisco, CA

APPENDIX C

“ACTUAL” TIMES
FOR INDIVIDUAL UNIT EMPLOYEES
POST-TSF OPENING

Employee
Name
July
2002
August
2002
September
2002
October
2002
November
2002
December
2002
Average
Bleyenberg 163.4 111.6 150.1 107.6 106.6 140.8 130
Canchola 165.4 129 141.1 113.7 100.9 137.9 131.3
Harjono 191.9 175.2 187.2 215.8 177.8 132.5 180.1
Hom 165.5 152.4 151 165.2 150.7 136.5 153.6
Ip 109.9 121 150.1 168.6 145.6 110.1 134.2
Lemus 162.3 164.8 109.3 167.8 99.7 129.3 138.9
Louie 144.6 87.5 126.5 131.9 132 15.4 106.3
Louis 161.4 126.1 130.9 167.4 140.5 132 143.1
Salgado 160.7 167.4 151.8 159.7 157.4 92.4 148.2
Seidel 177.6 178.2 160.4 185 160 90.3 158.6
Tsang, A. 161.8 161.5 137.7 159.5 137.4 113.4 145.2
Tsang, K. 176.1 173 138.4 157.7 145.9 135.8 154.5
Usi 165.6 127.6 146.8 110.7 147.7 92.6 131.8
Total 2106.2 1875.3 1881.3 2010.6 1802.2 1459 1855.8
(142.8
per ee)

JD(SF)–38–03
San Francisco, CA

APPENDIX D

“OPERATING” TIMES
FOR INDIVIDUAL UNIT EMPLOYEES
POST-TSF OPENING

Employee
Name
July
2002
August
2002
September
2002
October
2002
November
2002
December
2002
Average
Bleyenberg 263.3 167.2 205.9 146.2 131.5 216.3 188.4
Canchola 222.1 194 223.3 160.9 147.2 170.3 186.3
Harjono 332.7 290 313.9 339.5 274.7 227.6 296.4
Hom 209.4 168.9 190.5 174.3 150 164.5 176.3
Ip 151 163.3 214.2 221.1 221.5 145.4 186.1
Lemus 191.7 187.8 114.8 187.2 115.6 153.3 158.4
Louie 303.1 169.4 266.1 237.8 247.2 45.4 211.5
Louis 342.7 212.9 155.4 296.5 242.8 280.9 255.2
Salgado 205.4 203.9 209.2 178.5 189.6 114.2 183.5
Seidel 243.2 249.3 159.3 239 218.7 116 204.3
Tsang, A. 269.5 244.1 226.5 276.1 209.3 193.1 236.4
Tsang, K. 284.5 261.3 178.3 217.3 178.3 190.3 218.3
Usi 238.4 177.3 190 147.3 170 121.2 174
Total 3257 2689.4 2647.4 2821.7 2496.4 2138.5 2675.1
(205.8
per ee)

JD(SF)–38–03
San Francisco, CA

APPENDIX E

MONTHLY “OPERATING” TIME
AS A PERCENTAGE OF
MONTHLY “ACTUAL” TIME FOR FSF

PRE-TSF OPENING

Month
November 2001 148%
December 2001 144%
January 2002 157%
February 2002 148%
March 2002 156%
April 2002 151%
May 2002 161%
June 2002 164%
Average 154%

POST-TSF OPENING

Month Percentage
July 2002 155%
August 2002 143%
September 2002 141%
October 2002 140%
November 2002 139%
December 2002 147%
Average 144%

JD(SF)–38–03
San Francisco, CA
APPENDIX F

TOTAL OPERATING HOURS
FSF AND TSF COMBINED

PRE-OPENING

Month Total Operating Hours FSF
November 2001 2814.7
December 2001 2339.8
January 2002 3135.6
February 2002 2715.6
March 2002 2889.6
April 2002 3163.1
May 2002 3315.3
June 2002 3211.2
Average 2948.1

POST-TSF OPENING

Month Total Operating Hours TSF and FSF
July 2002 3576.1
August 2002 3743.1
September 2002 3906
October 2002 3960.8
November 2002 3728
December 2002 3240.9
Average 3692.5

JD(SF)–38–03
26
APPENDIX G

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain in good faith with Machinists District Lodge 190, Local Lodge 1414,
International Association of Machinists and Aerospace Workers, AFL-CIO, regarding diversion of unit
work to the employees at our Twelfth Street Facility.

WE WILL, on request, bargain with the Union about diversion of unit work to the employees at our Twelfth
Street Facility.

WE WILL make whole our Folsom Street Facility unit employees for any loss of earnings and other
benefits resulting from our failure to bargain with the Union before we began diverting unit work to the
employees at our Twelfth Street Facility, plus interest.

WE WILL, pending bargaining, restore to the employees at our Folsom Street Facility the same level of
work dispatched to them prior to our diversion of unit work.

EUROPEAN MOTORS, LTD. d/b/a MERCEDES-BENZ
OF SAN FRANCISCO
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (415) 356-5139.

JD–

5

10

15

20

25

30

35

40

45

50
35